Tag: section 119 motor vehicle act

Some Thoughts on Section 173 of the Motor Vehicle Act

Written by admin on September 17, 2012. Posted in ICBC Liability (fault) Cases.

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.

Pedestrian Found 30% At fault For Crash for "Cutting the Corner"

Written by admin on December 12, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized.

(Update February 5, 2012 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing fault between a vehicle and a pedestrian.
In last week’s case (Anderson v. Kozniuk) the Plaintiff was crossing a street in an unmarked crossing. In the course of crossing he “cut the corner” and walked away from the intersection. He was walking “briskly“. At the same time the Defendant motorist was travelling south on 12th Street, she “went through the intersection and hit (the Plaintiff)“.

Madam Justice Russell found both parties at fault with the driver shouldering 70% of the blame. In coming to this conclusion the Court provided the following reasons:

[69]When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed. The very presence of the marked crosswalk should have been an indication to her of the possible presence of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is possible she would have seen the plaintiff before the last second, when it was too late to avoid him.

[70]Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.

[71]Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. Had he crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it is possible Ms. Kozniuk would have seen him. As well, had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. By angling across towards the bus stop, as he did, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.

[72]By leaving the crosswalk, the plaintiff was also entering a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him. He failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12^th. His awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of checking its proximity to him…

[75]I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.

[76]The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident…

[78]In reviewing the cases put before me by counsel, including Karran v. Anderson, 2009 BCSC 1105, Beauchamp v. Shand, 2004 BCSC 272, Wong-Lai v. Ong, 2011 BCSC 1260, I have determined that the relative degrees of blameworthiness should be as follows: 30% to the plaintiff and 70% to the defendant.

Cyclist 15% At Fault for Crash For Riding in Crosswalk

Written by admin on October 5, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.
In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC. He approached a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk. At the same time the Defendant was driving near the middle lane of Martin Drive. She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.
The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly. The Plaintiff was also found 15% at fault for riding in the cross-walk. Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases. In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:
[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.