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:
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”.
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.
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.
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.
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.