Tag: salaam v. Abramovic

Can A Driver Be At Fault For A BC Car Crash If They Have The Right of Way?

The answer is yes and reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Salaam v. Abramovic) the Plaintiff was injured in a 2005 car crash in Surrey, BC.  She sued for damages.  At trial her case was dismissed (you can click here to read my post summarizing the trial judgement) .  She appealed and the BC High Court overturned the judgement finding that the other motorist was 25% to blame for the crash.
By way of background the crash happened at a “T” intersection.  The Plaintiff was faced with a stop sign.  She attempted to make a left hand turn across a through highway.   The Defendant, travelling down the highway, had the statutory right of way and is considered the ‘dominant driver‘.  As he approached the intersection the Plaintiff entered into his lane and the crash happened.  In finding that the Defendant was partially at fault for the crash despite having the right of way the BC Court of Appeal stated as follows:

[26] The oft-quoted passages from the concurring judgment of Cartwright and Locke JJ. in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 460-61 (S.C.C.), succinctly set out the duties of a driver in the dominant position:

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.”

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.

In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7 C.R.C. 408 at p. 417, [1908] A.C. 260 at p. 269: “Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.”

While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that 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.

[27] The defendant also cites the judgment of this Court in Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 at 277, 43 M.V.R. (2d) 44:

[15]      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.

[28] In Pacheco, the question was whether the plaintiff ought to have anticipated that the defendant, who was turning left at a controlled intersection, might proceed into his path when it was unsafe to do so.  In my view, the hazard posed by the plaintiff’s vehicle in this case is not analogous to the hazard posed by the defendant’s vehicle in Pacheco.  The defendant in the Pacheco case had done nothing to foreshadow that she would unlawfully cross into the plaintiff’s line of travel.  In contrast, in this case, the plaintiff had been in violation of the rules of the road continuously almost from the moment that the defendant saw her: she proceeded through a stop sign without coming to a full stop and continued to pull forward into his lane of travel as he approached the intersection.  Although he changed lanes to pull around her, she continued forward in a halting manner, not stopping at any time.

[29] The question in this case is whether the defendant exercised reasonable care in approaching the intersection.  When he was 350 feet away, the plaintiff’s vehicle started crossing the road and entered into his lane of travel.  A reasonable driver would have been put on notice that the plaintiff was not obeying the rules of the road and posed a hazard.  A reasonable driver would have exercised increased caution, paid close attention to the plaintiff’s vehicle and prepared to stop or to give it a wide berth.  Instead, the defendant insisted on his right of way.  A mere 100 feet from the intersection, when the plaintiff’s vehicle was fully in his lane of travel and still proceeding forward, the defendant changed lanes in an attempt to drive around her.  Until the last moment, he maintained his speed.  In the best case scenario, if the plaintiff had seen the defendant’s vehicle and stopped abruptly, the collision would have been avoided by mere inches.  Instead, the plaintiff continued forward, and the defendant’s vehicle struck the middle of the plaintiff’s vehicle.  In the circumstances, the defendant’s negligence contributed to the accident…

[34] In applying the “immediate hazard” test in order to determine negligence, the trial judge erred in law.  Applying the correct legal test to the defendant’s conduct (i.e., the test enunciated in Walker v. Brownlee), the defendant had a duty to take care when he approached the plaintiff’s car in the intersection, having had ample warning that she was not following the rules of the road.  A reasonable driver would not have insisted on right of way, and certainly would not have driven aggressively through the intersection, aiming to pass within inches of the plaintiff’s moving vehicle…

[38] I would find the plaintiff 75% at fault and the defendant 25% at fault.

Intersections, Left Hand Turns and ICBC Injury Claims

(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability.  You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection.  Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver.  There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between.
Reasons for judgement were released today dealing with an intersection crash finding a left hand turning  vehicle 100% responsible for an intersection crash.  In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC.  This intersection is controlled by a stop sign.  As the Plaintiff was turning left her vehicle was struck by the Defendant’s.  Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:

[40] The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic.  He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle.  She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.

[41] The plaintiff relies on the provisions of s. 175(1) of the Act.  She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard.  Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.

[42] The plaintiff was the left turning vehicle.  It was her obligation, in accordance with s. 174 of the Act, to yield the right of way to the traffic approaching from the opposite direction.  The plaintiff did not turn her head to observe whether traffic was approaching.  Nor did the plaintiff comply with the provisions of s. 175 of the Act.  She did not stop before entering the intersection.   The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close.  She did not proceed with caution, despite driving slowly.

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach.  Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely.  The plaintiff did not determine whether her turn could be done safely.

[46] The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.

[47] The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff.  The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic.  The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.

[48] Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution.  The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution.  Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.

[49] Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic.  I agree.  The plaintiff was driving very slowly and could stop almost immediately.  It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path.  She did.  When the defendant honked, the plaintiff stopped.  It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.

[50] The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection.  In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.

[51] Therefore, the plaintiff’s claim is dismissed.  The defendant shall have his costs.

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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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