Tag: liability cases

Motorist Found At Fault for BC Car Crash Despite Being Rear-Ended

Further to my previous posts on this topic, the law is clear that a motorist who is rear-ended by another can be found at fault.  Such an outcome is somewhat unusual but given the right circumstances it can occur.  Reasons for judgement were released to today demonstrating this.
In today’s case (Cue v. Breitkreuz) the Plaintiff’s vehicle was involved in a rear-end collision.   He testified that he was rear-ended by the Defendant while he was stopped waiting to make a left hand turn.  An independent witness contradicted this account and testified that “the Plaintiff’s car accelerated, moved in front of the (defendant’s) truck, then slammed on the brakes” leaving the defendant with “(no) chance to stop before sliding into the plaintiff’s car”.
Mr. Justice Smith preferred the independent witness’ evidence over the Plaintiff’s and found the front motorist entirely at fault.  In reaching this conclusion the Court gave the following brief but useful summary of the law:

[15] Where there has been a rear-end collision, the onus shifts to the following driver to show that he or she was not at fault:  Robbie v. King, 2003 BCSC 1553 at para. 13. It is also the case that the driver of a following vehicle must allow a sufficient distance to stop safely in the event of a sudden or unanticipated stop by the vehicles ahead:  Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002 BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

[16] On the evidence before me in this case, I find that the defendant has discharged the onus upon him. I find that the plaintiff, by changing lanes in the manner that he did, created the situation in which the defendant did not have a safe stopping distance behind the plaintiff’s vehicle. Had the plaintiff not stopped, the defendant would have had the opportunity to slow down and allow the distance between them to increase. But when the plaintiff stopped immediately following the lane change, the defendant had no chance to avoid the collision. The defendant had no reason, in the moments leading up to the accident, to anticipate the plaintiff’s lane change and stop.

Legal Principles For Left Turning Motorists at T-Intersections Discussed by BC Supreme Court


Last week reasons for judgment were released in a case discussing applicable legal principles when motorists are involved in left hand turn collisions.
In last week’s case (Burgess v. Fisher) the litigants were involved in a 2 vehicle collision in Vernon, BC.  The Crash occurred when the Defendant vehicle left a stop sign and attempted to make a left hand turn at a through roadway.  To complete the turn the Defendant had to first clear two westbound lanes.  The curb westbound lane approaching the Defendant vehicle was full of cars and limited the defendants view of vehicles in the inner westbound lane.  The Plaintiff vehicle was travelling in this inner westbound lane.  As the Defendant vehicle entered the inner westbound lane the collision occurred.  There was evidence that the Plaintiff vehicle in the westbound lane was speeding, although not significantly, at the time of the collision.
Both motorists said the other was to blame.  Mr. Justice Barrow, before addressing the issue of fault, succinctly discussed the governing legal principles for these types of cases.  He summarized the law as follows:

[17] Section 175(1) of the Motor Vehicle Act provides that the driver stopped at a stop sign must, before entering an intersection, yield to through or crossing traffic that has either entered the intersection on the through road or “is approaching so closely on it that it constitutes an immediate hazard”. Similar language is found in s. 174 which governs left turns at intersections. It provides that left turning vehicles must yield the right of way to approaching traffic that is “in the intersection or so close as to constitute an immediate hazard”.

[18] In Rae v. Thorpe, [1963] 43 W.W.R. 405 (B.C.C.A.), Tysoe J.A. considered the meaning of “immediate hazard” in the context of s. 164 (the predecessor of the current s. 174). Although he did not attempt to exhaustively define the phrase, he wrote at para. 18 that:

…if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” within the meaning of sec. 164.

The point at which the determination of whether the through travelling motor vehicle is an immediate hazard is the moment before the serviant vehicle begins to encroach on the through vehicle’s lane of travel (Rae at para. 25).

[19] Ballance J. adopted both of the foregoing propositions in Hynna in the context of s. 175 of the Motor Vehicle Act. In addition, she distilled two further principles applicable to the analysis required by s. 175 from Keen v. Stene, [1964] 44 D.L.R. (2d) 350 (B.C.C.A.). In that case, Davey J.A. wrote at para. 46 that:

…A driver waiting at a stop sign ought not to enter a through street unless it is clear that oncoming traffic does not constitute an immediate hazard. Excessive refinement of what traffic is an immediate hazard will defeat the purpose of the right?of?way regulations contained in s. 165 [ now s. 175], and make them an inadequate and confusing method of regulating traffic at intersections on through streets.

Sheppard J.A., in a separate concurring judgment, made the point that the hazard to which the section is directed extends to the threat of collision as opposed to simply a collision itself.

[20] One final general principle applicable to the analysis comes from the frequently quoted observation of Cartwright J. in Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.). There, at p. 461, he wrote:

…when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right?of?way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right?of?way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[21] Whether a through travelling vehicle constitutes an immediate hazard to a crossing or left turning vehicle is a function of at least two things: how far away the through travelling vehicle is from the intersection and how fast it is travelling. Both of these are matters that the servient driver must estimate before entering the intersection. In making those estimates, the servient driver is entitled to assume, in the absence of evidence suggesting otherwise, that crossing or approaching vehicles will observe and obey the rules of the road.

The Court went on to hold that the left turning vehicle was entirely at fault for the crash despite the evidence that the Plaintiff vehicle was speeding.  In coming to this decision Mr. Justice Barrow held as follows:

[32] The law obliged Mr. Karol to either remain at the stop sign or at least not to proceed into the westbound lane of through traffic on 43rd Avenue unless he could determine that approaching in that lane did not pose an immediate hazard. In order to make that determination, he had to be able to see far enough down the westbound lane to determine whether approaching traffic travelling at or near the speed limit would pose an immediate hazard. The hazard, it is to be recalled, is not just a collision but the immanent prospect of one…

[38] Returning to the matter at hand, as noted, Mr. Karol had a limited view of on?coming dominant traffic. Both he and Ms. Faucher testified that the Fisher vehicle was 10 or 15 feet away when they first saw it. I accept that their attention was focused on the through westbound lane of traffic. Neither formed an opinion as to its speed based on observations made prior to the impact. Further, Mr. Karol did nothing to avoid the accident, not because he was not paying attention or failed to appreciate the collision before it happened but because he had no time. His obligation was to assume that through traffic would be proceeding at least at the speed limit. Even if he could see more than 10 or 15 feet into that lane when he proceeded to encroach on it, I am satisfied that he could not see much further than that. He could not see far enough to assess whether he would pose an immediate hazard to traffic travelling at or near the speed limit. He was, therefore, negligent.

[39] The next issue is whether Ms. Fisher was also negligent. Mr. Karol has the onus of establishing that on a balance of probabilities. The question turns not on whether, had she been driving the speed limit, the accident would not have happened because she would not have been there, but rather on whether a reasonable driver, that is, one driving the speed limit, would have had a sufficient opportunity to observe the encroaching vehicle and taken the necessary evasive action.

[40] I am not satisfied that Mr. Karol has established negligence on the part of Ms. Fisher. I accept that she was speeding but not markedly or excessively so. More to the point, I am satisfied that she was so close to the intersection when Mr. Karol encroached on her lane of travel that, even had she been travelling at or near the speed limit, the opportunity she would have had to take evasive action was not such that, with exercise of reasonable skill, the collision would have been avoided.

Left Turn Inersection Crashes and the Law in BC

Reasons for judgement were released today by the BC Supreme Court concerning a 2005 intersection crash that occurred in the lower mainland of BC.
The Plaintiff was making a left hand turn from Hastings onto Willingdon.  At the same time the Defendant was operating a vehicle coming the opposite direction on Hastings.  A collision occurred.  There were no independent witnesses to this crash.  Both the Plaintiff and Defendant testified and as can be expected their evidence differed to several facts with each blaming the other for the crash.
Madam Justice Dardi preferred the Plaintiff’s evidence over the Defendant’s finding the Defendant testified in ‘an evasive and less straightforward manner’.
The court found that the Plaintiff was clearing the intersection on a stale yellow light and at the time the Defendant entered the intersection ‘it was not safe from him to do so on a very late stage amber or red light.  He should have stopped’.  The court found the Defendant 100% responsible for this intersection crash.
In reaching this decision Madam Justice Dardi summarized the law relating to left-hand turn intersection crashes as follows:

[34]            Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the right-of-way in situations where a driver is making a left turn:

When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[35]            An immediate hazard exists if the oncoming vehicle must make a sudden or violent avoiding action to prevent a collision: Aerabi-Boosheri v. Retallick, [1996] B.C.J. No. 143 at para. 8.

[36]            Section 128 of the MVA governs the duties of drivers when a traffic light turns yellow.  It states, as far as is relevant, as follows:

128      (1)        When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a)        the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety…

[37]            Who has the statutory right-of-way is informative; however, it does not determine liability in an accident.  Drivers with the statutory right-of-way must still exercise caution to avoid accidents where possible.  In Walker v. Brownlee, [1952] 2 D.L.R. 450, Cartwright J. states at paras. 46-47:

[46]      The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

[47]      While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

The Plaintiff suffered from various soft tissue injuries.  The court summarized the Plaintiff’s injuries at paragraph 57 as follows:
[57]            Dr. Steinson was an impressive witness.  I accept his opinion that the plaintiff has developed a myofascial pain syndrome in his neck and trapezius as a consequence of the injury in the motor vehicle accident.  I also find that the episodic pain that the plaintiff continues to experience is mild to moderate.  Dr. Steinson’s prognosis for the plaintiff is guarded.  Based on the medical evidence, the likelihood is that the plaintiff’s symptoms will continue to improve over the next few years although there is a possibility that his episodic pain may persist further into the future
The court awarded the following damages:

(1)        Non-pecuniary loss $30,000;

(2)        Loss of future earning capacity $20,000;

(3)        Cost of future care $2,000; and

(4)        Special damages $500.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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