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: 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… 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.
Section 175 of the Motor Vehicle Act addresses when a motorist faced with a stop sign gains the right of way when crossing a highway. In short, motorists faced with a stop sign can enter an intersection after stopping provided that approaching traffic is not “so close that it constitutes an immediate hazard“. Once a motorist complies with this requirement and “proceeds with caution” into the intersection they gain the right of way and approaching traffic must yield the right of way. Anyone who has spent any time on the road knows that this reversal of the right of way is not always honoured by motorists. However, failure to follow section 175 of the Motor Vehicle Act can not only lead to a moving violation, but also to a significant apportionment of fault following a collision. This was discussed in reasons for judgement released last week by the BC Court of Appeal.
In last week’s case (Lutley v. Southern) the Defendant (Appellant) was attempting to cross Oak Street in Vancouver, BC. The Defendant was travelling on 67th Avenue. She had a stop sign in her direction of travel. At the intersection Oak Street had 6 lanes of travel. The Plaintiff (Respondent) was travelling in the lane furthest away from where the Defendant entered the intersection. As the Plaintiff approached the intersection she was faced with a flashing green light. Neither party saw each other’s vehicle until it was too late and a collision occurred. (Accident Reconstruction Software courtesy of SmartDraw) At trial both parties were found at fault with a 60/40 split of liability in the Plaintiff’s favour. The Defendant appealed arguing the Plaintiff should have shouldered more than 40% of the blame. The BCCA dismissed the Appeal finding that while there was a range of acceptable outcomes in apportioning blame there was no error in law in the trial judge’s assessment. There was, however, a strong dissent written by Mr. Justice Chiasson stating as follows:
The respondent was under a positive obligation to be able to stop before entering the intersection. She was unable to do so. The appellant was lawfully in the intersection and entitled to the right of way. The respondent was passing stopped vehicles on her left with clear knowledge of potential danger at the intersection. On the evidence of the respondent and Mr. Nagy, it is apparent that the appellant had been in the intersection for some time. The respondent gave various estimates of how long the 67th Avenue light had been green (from four to six seconds; it turned green when she was approximately three normal city blocks away; there was ample time for a pedestrian or motor vehicle to traverse the intersection). The appellant had no indication that there was a vehicle in the curb lane or that the respondent would enter the intersection in complete disregard of her statutory obligations.
Lane six presented a new danger to the appellant. While in my view her speed through the intersection was not inappropriate, she testified that she did not slow down before entering lane six. The judge rejected her evidence that she looked up the lane and he concluded both vehicles were, at that point, travelling too quickly. Had the appellant slowed it is possible that she may have seen the respondent, although this also may have placed her into a position where the collision would have been more serious.
While a dominant driver is entitled to assume servient drivers will obey the rules of the road, a dominant driver cannot act unrealistically. It is an unfortunate reality that servient drivers like the respondent do disregard their obligations and dominant drivers cannot ignore that fact. A dominant driver passing through an intersection who is confronted with a new risk – a seemingly empty curb lane the view of which is obstructed – must proceed with some caution.
An appellate court rarely will interfere with a trial judge’s apportionment of liability (MacDonald (litigation guardian of) v. Goertz, 2009 BCCA 358, para. 58), but will do so if the judge has made a palpable and overriding error of fact, misapprehended the evidence or erred in principle. It is an error of law not to take into account the fact a party was the dominant driver (Bedwell v. McGill, 2008 BCCA 6, para. 59) or to fail to recognize the significance of a servient driver’s negligence (Gautreau v. Hollige, 2000 BCCA 390, para. 18; quoted in Bedwell)
In my view, the trial judge erred in law by failing to conclude that the appellant was lawfully in the intersection and had the right of way and in failing to address the onerous responsibility of the respondent. The respondent was passing on the right of stopped vehicles, was the servient driver and obliged to yield the right of way to the appellant and was entering an intersection with a flashing green light with the obligation to be able to stop her vehicle before entering the intersection. I would place the majority of fault on the respondent and would apportion liability 85% against her and 15% against the appellant.
Further to my recent post discussing this topic, Section 131(5) of the BC Motor Vehicle Act requires a driver approaching a flashing green light to travel with sufficient caution so they can bring their vehicle to a stop should it be necessary. Failure to do so could result in fault for a crash even if another motorist fails to yield the right of way. This was discussed in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Lutley v. Southern) the Defendant was attempting to cross Oak Street in Vancouver, BC. The Defendant was travelling on 67th Avenue. She had a stop sign in her direction of travel. At the intersection Oak Street had 6 lanes of travel. The Plaintiff was travelling in the lane furthest away from where the Defendant entered the intersection. As the Plaintiff approached the intersection she was faced with a flashing green light. Neither party saw each other’s vehicle until it was too late and a collision occurred. (Accident Reconstruction Software courtesy of SmartDraw)
Mr. Justice Rice found both drivers at fault with the Defendant shouldering 60% of the blame. Although the Plaintiff entered the intersection on a green light she was found partly to blame for failing to comply with section 131 of the Motor Vehicle Act. In addressing the issue of fault Mr. Justice Rice provided the following reasons:
 By the Motor Vehicle Act, s. 131(5), a driver approaching a green flashing light at an intersection is obliged to slow down sufficiently to be able to stop before the intersection and avoid an accident. I find that the plaintiff was negligent and in breach of her statutory duties by failing to slow down sufficiently to be able to stop at the intersection. She could see that her vision of the intersection was obstructed and would continue to be obstructed practically until she had reached the intersection itself. She should have applied her brakes as soon as the obstruction appeared and come to practically a stop at or near the intersection.
 By the Motor Vehicle Act, ss. 125, 186 a driver approaching a stop sign must come to a full stop. There is also a general duty to drive safely, maintain a proper lookout, and not to proceed forward until it is safe to do so. I find that the defendant was negligent and in breach of her statutory duty in failing to maintain a proper lookout and by accelerating through the intersection when it was not safe to do so…
 In conclusion, I find that both drivers were negligent and in breach of duties imposed upon them pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 at ss. 125, 141. I apportion liability at 60% to the defendant and 40% to the plaintiff.
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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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