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Car Accident Case In Vancouver Injury Claimant Found 75% at Fault


This was  a  personal injury trial(Knight v. Li,2011 BCSC 184) solely on the issue of fault for a motor vehicle accident that occurred at the intersection of West 41stAvenue and Angus Drive in Vancouver.  It is common in British Columbia for personal injury lawyers and judges to agree that the issue of fault be decided before the amount, if any, is awarded. This saves a lot of court time and expenses when it comes to  medical and loss of earnings experts.
 The injury claimant in this case was the operator of a Volvo proceeding southbound on Angus Drive. The other driver was driving a BMW eastbound in the curb lane on 41st Avenue. 41st Avenue is a through street in excess of 18 metres wide with four lanes for travel and additional room for parking on each side. Drivers entering 41st Avenue from Angus Drive faced a stop sign. The view to the right of 41st Avenue from the stop sign is obscured by a hedge, requiring a driver to pull forward to close to the curb edge of 41st Avenue to get a clear view of traffic heading eastbound.  This area of Vancouver has many large residentail properties some considered historical sites.
The car accident  happened in the eastbound curb lane of 41st Avenue and the BMW struck the side of the Volvo as the Volvo crossed in front of it.
The injury claimant  argues that the other driver at mostly to blame for the accindet because he was speeding through the intersection and failed to keep a proper look out for vehicles.  The other driver on the other and says that the injury claimant  is solely the blame for the accident. He says that the claimant was intoxicated and incapable of safely operating his car.
With respect to the law the judge stated,

[6]             To assess liability in the present case I must consider the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”), the Negligence Act, R.S.B.C. 1996, c. 333 and the common law.

A Driver’s Right of Way

[7]             Section 186 of the Act places a duty on drivers to stop at stop signs:

186      Except when a peace officer directs otherwise, if there is a stop sign at an intersection, a driver of a vehicle must stop

(a) at the marked stop line, if any,

(b) before entering the marked crosswalk on the near side of the intersection, or

(c) when there is neither a marked crosswalk nor a stop line, before entering the intersection, at the point nearest the intersecting highway from which the driver has a view of approaching traffic on the intersecting highway.

[8]             Section 175 of the Act determines a driver’s right of way following the stop required by s. 186:

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.

[9]             The driver with the right of way is termed dominant; the driver who must yield is termed servient.

[10]         Therefore a driver is required to stop at a stop sign and is servient to a vehicle which is either in the intersection or which is travelling on the through way and is close enough to constitute an immediate hazard.

[11]         In his concurring reasons in Keen v. Stene, 44 D.L.R. (2d) 350 at 359, 1964 CarswellBC 223 (C.A.), Mr. Justice Davey adopted the following definition of “immediate hazard”:

[A]n approaching car is an immediate hazard if the circumstances are such as to require the driver of that car to take some sudden or violent action to avoid threat of a collision if the servient driver fails to yield the right-of-way. …

[12]         Note that it is the action required of the servient driver to avoid the threat of collision – and not to avoid the collision itself – which is relevant to assessing whether the dominant driver constituted an immediate hazard.

[13]         Davey J.A. continued at 359:

…”Speed and distance generally determine what constitutes an immediate hazard”, or as it was put by Cannon[ ] J., in Swartz Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277 at 279, [1935] S.C.R. 628 at p. 632 [sic]: “Distance must be translated into time in order to determine what are the rights of the parties.”

But having said that, I must add that in most automobile collision cases estimates of time, speed and distance do not lend themselves to exact mathematical analysis, because the estimates are by their very nature uncertain…

In my opinion s. 165 [now s. 175], dealing with rights-of-way of drivers proceeding along through streets, and stopped at stop signs on intersecting streets, is to be applied broadly from the point of view of the motorist sitting in the driver’s seat, and not meticulously by a Judge with the benefit of afterthought. The situation confronting a motorist, even one waiting at a stop sign, is not a static, but a fluid one, calling for quick appreciation and judgment. A driver waiting at a stop sign ought not to enter a through street unless it is clear that oncoming traffic does not constitute an immediate hazard. Excessive refinement of what traffic is an immediate hazard will defeat the purpose of the right-of-way regulations contained in s. 165 [now s. 175], and make them an inadequate and confusing method of regulating traffic at intersections on through streets.

[14]         Therefore to the extent possible, courts must assess evidence of speed, distance and time to assess which vehicle had the right of way at the time the otherwise servient driver entered the intersection. However the law does not require that the measurement be overly precise. This is particularly the case given that a determination of whether the dominant driver was an immediate hazard is only one factor in assessing whether each driver met the requisite standard of care. This is discussed in more detail below.

Additional Obligations

Reasonableness

[15]         The dominant driver must use reasonable care in exercising his right of way. He must act to avoid a reasonably foreseeable collision: Walker v. Brownlee and Harmon, [1952] 2 S.C.R. iv (note), 2 D.L.R. 450 at 460.

[16]         In Walker, Cartwright J. went on to discuss, at 461, what the servient driver must prove in order to place any fault on the dominant driver:

… 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. [Emphasis added.]

[17]         Therefore the dominant driver is at fault if he had a reasonable opportunity to avoid the accident but failed to do so. Note the standard is reasonableness; the dominant driver is not required to take extraordinary steps to avoid the collision: Salaam v. Abramovic, 2010 BCCA 212 at para. 25. Doubts are to be resolved in favour of the dominant driver.

[18]         The provisions of the Act are guidelines for assessing fault in motor vehicle cases. In Salaam at para. 21 the Court said:

[21]      In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

[19]         The Court continued at para. 33:

[33]      The words “immediate hazard” appear in both ss. 174 and 175 of the Motor Vehicle Act and are used to determine when a vehicle may lawfully enter an intersection. They determine who is the dominant driver, but do not, by themselves, define the standard of care in a negligence action.

[20]         In assessing the standard of care, drivers are generally entitled to assume that others will obey the rules of the road: Salaam at para. 25; Walker at 460-61.

Approaching a Flashing Green Light

[21]         Section 131(5) places a duty on a driver approaching a flashing green traffic signal to proceed with caution:

131      (5) When rapid intermittent flashes of green light are exhibited at an intersection or at a place other than an intersection by a traffic control signal,

(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… [Emphasis added.]

[22]         Therefore the presence of a green flashing light at an intersection may affect the liability of the dominant driver involved in a collision: Gautreau v. Hollige, 2000 BCCA 390 at para. 15.

Speed Limit

[23]         In keeping with the legislation and the dominant driver’s common law duty to take reasonable care, “[t]ravelling over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measure[s] to avoid the collision”: Cooper v. Garrett, 2009 BCSC 35 at para. 42.

The court found that the injury claimant was the servient driver and that he was driving impaired and therefore was primarily at fault for the accident.  the other driver was the dominant driver and had no reason to expect that a driver at Angus Drive would create the risk of a collision. He was nonetheless driving too quickly in the conditions and given his experience. Moreover, he was approaching an intersection controlled by a pedestrian-activated flashing green light. His responsibility was to be able to stop if the light was activated. Although he testified that he did not see a pedestrian at the cross-walk on the court’s  view he did not approach the intersection with sufficient caution.
The injury claimant was found 75% at fault and the other driver 25% at fault. Posted by Mr. Renn A. Holness

Tags: Accident Insurance Claim, ICBC Injury claim, Multiple Injuries, Pain and Suffering, Personal Injury, Soft tissue injury

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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