Further to last week’s post on this topic, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for intersection crashes. This week’s case is of particular interest because a ‘dominant‘ driver was found completely at fault for striking a left hand turning vehicle at an intersection.
In today’s case (Kelly v. Yuen) the Plaintiff was attempting a left hand turn at a light controlled intersection in Vancouver, BC. As she turned the Defendant, who was approaching from the opposite direction, entered the intersection resulting in a collision. The Defendant was travelling in the curb lane which, at the time of the crash, was restricted to buses and bicycles. The Defendant argued that he had a green light and the Plaintiff was fully at fault. The Plaintiff argued that the Defendant should not have been in the restricted lane and was fully at fault. Ultimately the Court sided with the Plaintiff and allocated 100% of the responsibility for the crash on the through-driver. Mr. Justice MacKenzie provided the following summary of some legal principles at play in these types of cases:
[23] The legal principles with regards to left turn situations have been addressed in many cases. In Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 15, Legg J. stated:
In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs.
[24] In Carich v. Cook (1992), 90 D.L.R. (4th) 322 at 326 (B.C.C.A.), Lambert J.A. had this to say:
… The question as a driver turns left is whether there is any vehicle in any approaching lanes that constitutes an immediate hazard. If there is, the turn should not be made. If there is not, then the turn can be made and of course, care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime. …
[25] Of course, each case must be determined on its own particular facts. For example, in Uyeyama (Guardian ad litem of) v. Wittenberg, [1985] B.C.J. No. 1883 (C.A.), the BC Court of Appeal determined that a left-turning was not negligent for having entered an intersection, having failed to detect the excessive speed of the defendant’s vehicle. In addition, the left-turning driver was entitled to assume that the oncoming vehicle would stop at a red light and according to traffic law. The court concluded at para. 44 that the left turning driver had “exercised due care and commendable prudence in taking the action she did in attempting to make a difficult left turn.”
[26] This case was cited with approval by the BC Court of Appeal in Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.).
[27] The court in Kokkinis considered other cases where the court held in favour of the servient driver. The court looked to Morgan v. Hauck (1988), 27 B.C.L.R. (2d) 118 (C.A.), a case where the BC Court of Appeal held that a dominant vehicle which had accelerated towards an intersection despite amber warning lights and then entered the intersection when the light was red could not rely on the relevant section of the Motor Vehicle Act to escape liability. In Kokkinis at para. 6, Newbury J.A. speaking for the court summarized the position taken in Morgan as follows:
… Esson, J.A. (as he then was), for example emphasised the “heavy onus which rests upon drivers approaching signals of this kind to make due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day. Their clear duty is to comply with the warning lights and to not ‘run the red’.” But for the fact that appellate courts should, he said, vary apportionments of blame made by trial judges only in very rare circumstances, Esson, J.A. (with whom Macfarlane, J.A. concurred) would have considered setting aside even the 10 percent allocation of fault.
[28] At para. 7 of Kokkinis, Newbury J.A. considered the Court of Appeal’s decision in Brucks v. Caslavsky, 45 B.C.A.C. 62, and stated the following:
A more recent case from this Court along similar lines is Brucks et al. v. Caslavsky et al. (19 April 1994) Vancouver Registry CA016390 (B.C.C.A.), which apparently was not cited to the trial judge. There, this Court rejected the argument that the onus placed by s. 176 of the Act is “absolute” and that in deciding whether an oncoming car constitutes an “immediate hazard”, a left-turning driver must consider the possibility that any oncoming motorist may intend to speed through an intersection and disobey the traffic signal. Taylor, J.A. for the Court quoted the well-known statement of principle of Lord Atkinson in Toronto Ry. Co. v. King et al. [1908] A.C. 260, at 269:
. . . traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less on the assumption that the drivers of all other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.
[29] Even though Kokkinis and Morgan dealt with vehicles which approached an intersection and turned left on an amber light, the principles and observations stated in these decisions are helpful. At para. 10 of Kokkinis the court stated that the servient driver should not be faulted for having diverted her attention momentarily from oncoming traffic to check cross traffic. This is because servient drivers have “the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection.”
[30] At the same paragraph, the court added:
… To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. …
[31] The authorities make it clear in my opinion that for liability to be found against the dominant driver in situations where the servient driver is making a left turn in front of stopped traffic, the evidence must establish that the dominant driver had a sufficient opportunity to avoid the accident, of which a reasonably careful and skilful driver would have availed him or herself (Pacheco, para. 18).
In finding the Defendant fully at fault the Court reasoned as follows:
[59] The circumstances here are significantly different. This is not a situation where the servient driver has disregarded her statutory duty. Here it is just the reverse. Mr. Yuen flagrantly ignored the restriction on travel in the curb lane in a clear attempt, in my opinion, to drive along the restricted lane in order to get to his destination earlier rather than wait like other responsible drivers who were complying with the curb lane restriction. As Esson J.A. said in Morgan, I am satisfied that Mr. Yuen should have made “due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day”.
[60] As Ker J. said in Rothenbusch at para. 149, “Who has the statutory right of way is informative; however, it does not determine liability in an accident. Drivers with a statutory right of way must still exercise caution to avoid accidents where possible.”
[61] In these circumstances, I am satisfied a reasonably careful and prudent driver would not have pulled into the restricted curb lane, as Mr. Yuen did with limited vision, and accelerate towards a backed up intersection at an excessive rate of speed. As the dominant driver, Mr. Yuen was not required to take “extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle.” (Salaam v. Abramovic, 2010 BCCA 212 at para. 25). However, I am satisfied a reasonably prudent driver, exercising reasonable caution, would have had a sufficient opportunity to avoid the accident.
[62] Furthermore, Ms. Kelly did not breach her statutory duty under s. 174 to yield the right of way. She took reasonable steps to determine she could make the left turn safely. The evidence which I have accepted establishes that when Ms. Kelly looked right and entered the curb lane, the Yuen vehicle was not “so close as to constitute an immediate hazard”.
[63] As a result, I am satisfied that the accident was caused solely by the negligent driving of Mr. Yuen. The defence has not established any contributory negligence on the part of Ms. Kelly.
