Tag: right of way

Motorist With Right of Way Found 25% at fault for Speeding and Failing to Keep a Proper Lookout

The below decision was upheld in reasons for judgement released in February 2014 by the BC Court of Appeal
_________________________________
As previously discussed, having the right of way is not always enough to escape fault (or partial fault) for a collision.  If a dominant motorist fails to react reasonably in the face of an obvious hazard liability can follow despite having the right of way.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Currie v. Taylor) the Defendant was travelling down highway 97 near Vernon, BC.  The Plaintiff, approaching from the Defendant’s right, left his stop sign attempting a left hand turn.

The Defendant had the right of way and the Plaintiff’s actions were found to be negligent.  The Defendant, however, was also found at fault for speeding and failing to react reasonably to the obvious hazard that the Plaintiff created.  In assessing the Defendant 25% at fault Mr. Justice Armstrong provided the following reasons:
[48]         The defendant Sharp’s evidence is confusing. He saw the Taxi moving away from the stop line but he did not take any evasive steps during the 10 seconds the Taxi was travelling across Highway 97. He looked into his rear view mirror but he had no time to avoid the accident. He confirmed that his vehicle did not decelerate significantly when he took his foot off the brake before impact; there was no reason that he could not have gone into the right lane before reaching the Intersection…
[128]     The defendant Sharp, travelling 33 km/h over the posted limit, would have reduced the time available to take evasive action or stop and would not have collided with the plaintiff in any event. It seems to me that the defendant Sharp, having seen the plaintiff start before he left the stop line and after, neglected to keep a proper lookout for the emergency that was developing in front of him…
[131]     Neither the defendant Sharp nor Mr. Tuckey had any difficulty in identifying the bright yellow Taxi as it was stopped on Meadowlark Road. The defendant Sharp’s discovery evidence was equivocal as to what he saw before impact. He first testified that he saw the Taxi leaving the stop line and followed it across his path, but then he indicated he had not seen the Taxi after it left the stop line. At that juncture he ought to have been aware the plaintiff might cross over into his lane…
[150]     It is clear that if the defendant Sharp’s speed had been as little as 110 km/h, the plaintiff would have cleared the Intersection without incident. Although speed, in itself, is not necessarily a breach of the standard of care I have concluded that the defendant Sharp’s speed was more than one third higher than the posted limit and his speed that interfered with his ability to take evasive steps. He would have had more time to react to the hazard and could have avoided the accident by steering and/or braking. In the circumstances he could otherwise have performed those manoeuvres which a reasonably careful and skilled driver might have taken. I have concluded that his lack of attention to the Taxi after it left the stop line, coupled with his excessive and unsafe speed, were a breach of his duty of care to the plaintiff…
[183]     In my view the plaintiff was obliged to yield the right-of-way and failed to do so, likely because he did not see the Van which was clearly visible. The defendant Sharp travelled at a speed more than one third above the limit and failed to take any timely measures to avoid the collision. The defendant Sharp also failed to keep a proper lookout and that, combined with his speed, deprived him of the opportunity to avoid the collision. In the end, when he realised that the Taxi was moving in front of him he looked to the right to attempt a lane change but was travelling too fast to be able to change lanes. I conclude that the plaintiff was more blameworthy. I apportion the liability for this collision 75% to the plaintiff and 25% to the defendants.

Some Thoughts on Section 173 of the Motor Vehicle Act

Although the BC Motor Vehicle Act specifcally addresses the right of way at intersections controlled with and without yield signs, the legislation does not specifically address the right of way when vehicles approach and stop at a 4 way stop-sign controlled intersection at the same time.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this.
In last week’s case (Demarinis v. Skowronek) the Plaintiff and Defendant approached an intersection at approximately the same time.  Ultimately the Court found that the Defendant approached first and had the right of way.  Before getting to this conclusion the Court addressed the commonly held notion that the driver to the right enjoys the right of way at 4 way intersections.  The Court provided the following reasons:

[26]The plaintiff argues that since both parties entered the “intersection” almost simultaneously, because the plaintiff was to the right of the defendant, she had the right-of-way. Accordingly, the defendant had a corresponding obligation to yield the right-of-way to her.

[27]Surprisingly, neither party was able to identify any case law which arose from circumstances similar to those in this case. The plaintiff argues, however, that the excerpts from the ICBC publication “Road Sense for Drivers, British Columbia Driving Guide”, which includes the following guidance for “four-way stops”, is of assistance:

four-way stops — when there are stop signs at all corners:

• The first vehicle to arrive at the intersection and come to a complete stop should go first.

• If two vehicles arrive at the same time, the one on the right should go first.

[28]In doing so, the plaintiff accepts that the Road Sense Guide does not contain “rules of law”, but submits that the Guide, in combination with other considerations, can inform the standard of care which is relevant in particular circumstances.

[29]I do not consider that the Guide advances the proposition that the plaintiff advocates. The foregoing language from the Guide, and in particular the words, “the first vehicle to arrive at the intersection and come to a complete stop should go first”, presupposes that the four stop signs at an intersection will be placed at the same distance from the intersection at issue. The excerpt from the Guide also treats the words “intersection” and “stop sign” synonymously. Were it otherwise, there would be no need for a vehicle to stop at the intersection. Instead, more properly or more precisely, the vehicle would be required to stop at the stop line.

From my perspective it appears litigants need not rely on the ICBC Driving Guide to establish the right of way analysis.  Looking at section 173  it states that:

if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield sign the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.”

A four way intersection controlled by stop signs is an intersection where “there are no yield signs” so the above section appears to be applicable.

Please feel free to comment if you have differing views on the subject.

Motorist with Right of Way Found 40% at Fault For Intersection Crash

UPDATE – June 12, 2013 -the below decisions addressing liability was upheld by the BC Court of Appeal.  The matter was set back to the trial judge, however, because the BCCA concluded the trial judge made a palpable error when assessing damages)
_____________________________________________________________
As discussed earlier this week, having the right of way is only one factor which determines fault for a collision.  A motorist with the right of way still needs to maintain a proper lookout otherwise they can share fault for a collision.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, in the context of an intersection crash.
In this week’s case (Sangha v. Chen) the Plaintiff was driving northbound on Willow Street in Vancouver, BC.  As he entered an intersection the Defendant, who was faced with a stop sign, came through a side street resulting in a collision.

Although the Plaintiff had the right of way both motorists were found at fault.  In assessing fault at a 60/40 split Madam Justice Boyd provided the following reasons:

[34]In the case at bar, I am satisfied that Chen stopped at the stop sign, that she moved forward to check for northbound traffic and that, finding there was none, she began to move out into the intersection.  Unfortunately from that point forward she simply proceeded forward in her slow course across the intersection, without keeping any continuing lookout for oncoming northbound traffic.  Chen did not, therefore, become the dominant driver.  While she stopped and yielded to traffic, she failed to proceed with caution.  This was also a breach of her common law duty to other users of the highways because she clearly failed to meet the standard of care as set out by Lambert J.A. in Carich v. Cook: “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”.

[35]For his part, I am satisfied that the plaintiff was likely travelling over 30-40 kph, although perhaps still within the speed limit.  Contrary to his evidence, I find that at the last moment, he did (perhaps even unconsciously) see the defendant’s vehicle and did slam on the brakes momentarily (accounting for the initial jerking motion Dr. Temple experienced).  While he could not avoid hitting the defendant’s vehicle (which by this time was in his lane of traffic), his vehicle effectively came to a stop on impact, although rotating somewhat to the right in a counter-clockwise direction.

[36]While the plaintiff may have remained the dominant driver, he had a duty to exercise reasonable care even if those around him did not respect his dominant position.  He clearly did not exercise reasonable care as he failed to keep a proper lookout.  The fact the defendant proceeded slowly across the intersection and that the collision occurred on the far side of the intersection convince me he should have seen the plaintiff earlier.  Had he kept a proper lookout he would have seen her vehicle earlier than he did and thus could have applied his brakes to avoid the collision.  But he had not kept a proper lookout and the accident ensued.

[37]In determining the division of liability, the court is to consider the relative responsibilities of the parties for the accident: Salaam, para. 35-38.  This is not a case similar to Amador, Ryonand Salaam where one driver saw the other and made a decision to proceed in a certain manner, while the other driver failed to see them and keep clear.  Here, neither driver saw the other prior to impact when the circumstances are clear that they should have.  Liability must therefore be shared more evenly.  That being said, while both parties failed to keep a proper lookout, and failed to see what was there to be seen, the defendant, as the servient driver, had a higher standard of care and the plaintiff, to a certain extent, was permitted to expect servient drivers to respect his dominant position.  Thus the negligence of Chen contributed more to the accident than that of the plaintiff.

[38]In all the circumstances I find that the defendant is primarily liable for this collision.  In this case, I would divide liability 60% against the defendant and 40% against the plaintiff.

Driver 25% at Fault for Striking Jaywalking Pedestrian

As previously discussed, having the right of way is not determinative of fault for a collision.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this in the context of a pedestrian crash.
In last week’s case (Murdoch v. Biggers) the Plaintiff was crossing Blanshard Street in a marked cross-walk.  She did so against a red light.  There were 3 oncoming through lanes of travel.  The vehicles in the first two lanes stopped for the jaywalking Plaintiff.  The vehicle in the third lane did not stop in time and collided with the Plaintiff resulting in a broken right leg.

The Court found that while the motorist had the right of way they shouldered some of the blame for failing to keep a proper lookout.  In assessing the Plaintiff 75% at fault and the Defendant 25% at fault Madam Justice Power provided the following reasons:
[33] In this case, I do not believe that the defendant exercised the appropriate standard of care to avoid breaching that duty. The drivers in vehicles in the two lanes to her right were able to observe and stop for the plaintiff, and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk was able to observe that something was happening in his rear-view mirror. In the circumstances, I find that the defendant failed to keep a proper lookout by failing to observe Ms. Murdoch’s entry into the crosswalk and by failing to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch. I find that if the defendant had in fact been keeping a sufficient look out, she would have been able to stop for Ms. Murdoch and avoid the collision…
[36] In all of the circumstances, I conclude that the 75% of the fault for the accident should be borne by the plaintiff and 25% by the defendant.

The Standard of Care For Drivers Approaching Flashing Green Lights


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the issue of fault for intersection crashes governed by a flashing green light.
In today’s case (Nonis v. Granata) the Plaintiff was involved in a collision with the Defendant’s vehicle.  The crash happened at a busy intersection in Burnaby, BC.  The Plaintiff approached an intersection which was governed by a stop sign in his direction of travel.  He left the stop sign and attempted to drive through the intersection which consisted of 6 lanes of travel.  Vehicles were stopped in the first 5 lanes.  As the Plaintiff entered the 6th lane the Plaintiff failed to see the Defendant’s oncoming vehicle and the collision occurred.
The Defendant was not speeding.  He was faced with a flashing green light as he approached the intersection and had the right of way.   Despite this the Defendant was found 25% at fault for the crash for not taking appropriate care in all of the circumstances.  In reaching this verdict Madam Justice Fisher provided the following reasons addressing motorists responsibility when approaching a flashing green light:

[12] A driver approaching a flashing traffic signal also has a duty to proceed with caution.  Section 131(5) provides that when a flashing green light is exhibited by a traffic control signal at an intersection,

(a) the driver of a vehicle approaching the intersection or signal and facing the signal must cause it to approach the intersection or signal in such a manner that he or she is able to cause the vehicle to stop before reaching the signal or any crosswalk in the vicinity of the signal if a stop should become necessary, and must yield the right of way to pedestrians lawfully in a crosswalk in the vicinity of the signal or in the intersection …

[13]         Although this section has been held to advantage pedestrians, the presence of a flashing green light may be considered in assessing the potential liability of a dominant driver involved in a collision with another vehicle: Gautreau v. Hollige, 2000 BCCA 390.  Accordingly, in the circumstances of this case, I am entitled to consider the flashing green light as a factor in assessing the driving of the defendant and his obligation to respond to the danger that was presented by the plaintiff…

[28] The defendant, while the dominant driver, proceeded toward an intersection with a flashing green light in circumstances where the traffic in the immediate two lanes to his left had either stopped or was barely moving.  In my view, he had a duty – consistent with s. 131(5) of the Act – to slow down sufficiently to be able to cause his vehicle to stop should this become necessary.  This he did not do.  His evidence was that he was driving at approximately 40 kilometres per hour.  Had he slowed down, he would have had a sufficient opportunity to avoid the collision, as he would have been in the same position as the vehicles to his left.  His failure to keep a proper lookout contributed to the accident….

[33] For all of these reasons, it is my view that both parties were at fault for this collision.  Because the defendant was the dominant driver, I consider him to be less at fault.  Although he failed to slow down, he was not speeding, as were the defendants in both Andrews and Hynna. Under the Negligence Act, I find the plaintiff 75% at fault and the defendant 25% at fault.

Why Having the Right of Way is Not Always Enough


I’ve previously written that having the right of way is not always enough to escape blame for a motor vehicle collision.  Reasons for judgement were released today further demonstrating this point.
In today’s case (Hmaied v. Wilkinson) the Defendant was driving up a windy road in Port Moody, BC.  At the same time the Plaintiff, then 15 years old, was jaywalking in front of the Defendant.  The Plaintiff was “jogging slowly as he crossed the road“.
The Defendant was speeding.  He saw the Plaintiff jaywalking but “continued to drive at an excessive rate of speed directly toward (the Plaintiff)“.  The Plaintiff crossed beyond the Defendant’s lane of travel.  Unfortunately he dropped his cell phone and “instinctively turned back into the (defendant’s) lane and bent over to pick it up without looking in the direction of oncoming traffic”  As he straightened up after picking up his phone he was struck by the Defendant’s vehicle.
Despite having the right of way, the Defendant was found 50% at fault for the crash.  In coming to this finding Madam Justice Dickson provided the following reasons:

[34] I conclude that the plaintiff and the defendant both failed to exercise due care in all of the circumstances and that both failures were proximate causes of the Accident.  In my view, the parties are equally blameworthy and liability should be apportioned on a 50% basis to each of them.

[35] The defendant had the right of way, but he did not take reasonable precautions in response to the obvious hazard presented by a young person jaywalking across his path of travel.  I accept that he could not specifically foresee the plaintiff would drop his cell phone and move back into the middle eastbound lane in order to retrieve it. I do not accept, however, that he was entitled to assume the plaintiff would obey the rules of the road or otherwise behave in a predictable manner as he jogged diagonally across Clarke Road.  On the contrary, the defendant knew that the youthful plaintiff was behaving unsafely by jaywalking in the face of oncoming traffic.  In these circumstances, other forms of unsafe behaviour were predictably unpredictable and the defendant should have slowed down and changed lanes immediately when he saw the plaintiff.  Had he done so, the Accident would not have happened:  Nelson (Guardian ad litem of), supra; Ashe, supra; Claydon, supra; Karran, supra; Beauchamp, supra.

[36] The plaintiff also failed to exercise due care for his own well-being.  He jaywalked in the face of oncoming traffic and, mid-course, turned back to retrieve his cell phone without checking to see how close the approaching vehicles had come.  In so doing, he exposed himself to the risk that he would be struck by an approaching vehicle.  That risk was realised and his negligent actions were also a proximate cause of the Accident.

If you have the right of way but know that someone is failing to yield you must take reasonable steps to avoid a potential collision otherwise you can bear some of the blame.

More on Liability – Stop Signs, Speeding and Fault

Reasons for judgment were released this week dealing with the issue of fault for a car crash where one motorist bound by a stop sign enters an intersection and gets hit by a speeding vehicle.
In this week’s case (McKinnon v. Peterson) the Plaintiff stopped at a stop sign heading northbound on Marlborough Avenue at the intersection of Kingsway.  As the Plaintiff entered the intersection and almost cleared it he was struck by the defendants vehicle who was travelling westbound.   The Plaintiff’s vehicle was struck on the right passenger side in a “violent” collision which caused all four tires of the defendant’s vehicle to leave the ground and “drove the plaintiff’s vehicle… over the curb, flattening a stop sign, shearing a light standard, and through a garden bed, and finally into the front of a restaurant. ”
When a motorist leaves a stop sign and attempts to cross an intersection on a through highway the motorist needs to comply with s. 175 of the Motor Vehicle Act which holds in part that:

175(1)  If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a)        the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b)        having yielded, the driver may proceed with caution.

(2)        If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway.

Mr. Justice Hinkson held that while the Plaintiff entered the intersection at a time when the Defendant did not constitute an “immediate hazard” the Plaintiff failed to proceed with caution by “failing to observe the defendant’s vehicle that was there to be seen” and for this the Plaintiff was found at fault.

The analysis did not end there, however, as the Defendant was also found at fault for speeding and failing to yield the right of way to the plaintiff who gained the right of way after he entered the intersection at a time when the Defendant did not pose an immediate hazard.

Specifically Mr. Justice Hinkson found that “the defendant was traveling at a speed of close to double the posted speed limit as he approached the intersection of Kingsway and Marlborough Avenue on November 2, 2006, and that he was unable to do so safely. He failed to yield the right of way to the plaintiff.”

The Court went on to find the Defendant 2/3 at fault for this collision and the Plaintiff 1/3 at fault.  In doing so Mr. Justice Hinkson described the relative fault of the parties as follows:

[47] I am unable to conclude that such a division of liability is warranted in this case. Mr. Petersen was travelling at what I have found to be an unsafe speed in all of the circumstances, and knew, or should have known that he would be unable to safely stop for vehicles that might choose to cross Kingsway, having acquired the right of way to do so. His conduct in these circumstances was reckless.

[48] On the other hand, Mr. McKinnon chose to cross a six lane street at other than a traffic controlled intersection, knowing that vehicles travelled that road at that time of day at speeds greater than posted. In so doing, he was obliged to proceed with caution, and I find that he did not.

[49] Weighing the respective negligence of the parties, I consider that the defendant must bear the majority of the liability for the collision. I conclude that the defendant’s conduct was considerably more negligent than the plaintiff’s, and that the defendant must bear two-thirds of the blame for the collision, and the plaintiff the remaining one-third. There will be judgment accordingly.

Intersection crashes are some of the most complicated cases when determing the relative blameworthiness of each party.  While each case turns on its own facts and the results can very depending on all the subtleties of evidence in any given case, this decision is worth reviewing for a careful analysis of some of the factors that come into play when deciding whom to blame to what degree for an intersection crash.

Contact

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer