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Personal Injury Claimant Wins Appeal as Other Driver Passing on the Right Illegally


The claimant was injured in a car accident and her claim at trial was dismissed.  For reasons given orally, the judge found the claimant was totally at fault.  the claimant appealed, contending the judge was wrong and the Court of Appeal agreed. The injury claimant won her personal injury appeal (Smeltzer v. Merrison,2012 BCCA 13).
 Essentially the claimant was turning left when the other driver, passing vehicles to her right in an unmarked lane, hit into her vehicle causing the collision.  Section 158(1) on the Motor vehicle Act prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle…”  The Judge pointed out that, “There are only three exceptions.  Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits.  A “laned roadway” is defined.  It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction.  The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road.”
In finding both drivers equally at fault and sending the case back for a new trial the Court of Appeal stated:

“[22]  Ms. Smeltzer[the claimant] may not have expected a vehicle would proceed toward the right-turn lane as Ms. Merrison did.  However, given the width and configuration of the road with the right-turn lane beginning a short distance to her left, the traffic with which she was confronted, the parked cars, and the limitation on what she could see, I consider it to have been incumbent on Ms. Smeltzer to “inch” her way over the solid line and past the truck, as drivers do, until she could see there was no obstacle to her completing her turn – no car was in fact approaching in a manner she did not expect – rather than turning blindly in front of the truck and proceeding as she did.  She could easily have done this and the collision would have been avoided.  In the result, Ms. Smeltzer bears a measure of fault for the injury she suffered.

[23]  This accident happened because neither driver saw the other before they collided.  That was because both proceeded in a manner that contravened the provisions of the Act: Ms. Merrison breached s. 158 and Ms. Smeltzer breached s. 166.  Ms. Merrison could not see Ms. Smeltzer’s vehicle while she was wrongfully passing the cars and the truck ahead of her on the right and she was not looking where she should have been; Ms. Smeltzer could not see Ms. Merrison’s car while her vision was obstructed and she did not take steps to ascertain her turn could be safely made.  I do not consider it is possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.”

Posted by personal injury lawyer Mr. Renn A. Holness

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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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