Left Turning Vehicle 60% At Fault For Intersection Collision

In Nerval v. Khehra, a left turning vehicle collided with a vehicle traveling through an intersection, which had passed another vehicle in its’ lane, and swung to the right. The Plaintiff, the driver of the left turning vehicle, brought an ICBC claim for pain and suffering and other heads of damages. At trial, the Court held that the driver of the left turning vehicle was 60% liable for the accident, and the driver of the through vehicle 40%. The trial judge ruled that the Plaintiff had misjudged the risks associated with turning left into the path of the oncoming vehicle when it was unsafe to do so. However, the trial judge also determined that the Defendant should bear some substantial responsibility as well for driving through the intersection at a high rate of speed, in the process unsafely passing to the right of a stationary left turning car in her original lane of travel. The apportionment of liability was appealed to the British Columbia Court of Appeal, which dismissed the appeal.

 

[28]        Ms. Nerval submits that there is no presumption giving the obligation imposed by s.174 on a left turning driver priority over the obligation imposed on a through driver only to pass to the right of the vehicle when it is safe to do so.  She argues that the trial judge erred in principle in finding that there was such a presumption.  This error underlay both his finding that Ms. Khehra was the dominant driver and that Ms. Nerval bore the burden of proving that when she started her left turn the Khehra vehicle was not an immediate hazard.  Ms. Nerval contends that she was entitled to assume that any vehicle approaching the intersection behind the stationary white van that was attempting to turn left in front of her would respect the speed limit and not try to pass on the right unless the driver had established that it was safe to do so.  Ms. Nerval’s argument, in other words, asserts the priority of a left turning driver over a through driver, at least where the through driver is driving recklessly as it is alleged Ms. Khehra was here.  In effect, Ms. Nerval argues that, on these facts, she had the right of way, not Ms. Khehra.

 

[29]        I do not agree.  In my opinion, the trial judge correctly concluded that the obligation created by s.174 has priority over the obligation created by s.158.  This result follows from the reasoning of this Court in Pacheco (Guardian ad litem of) v. Robinson, (1993), 75 B.C.L.R. (2d) 273 (B.C.C.A.) at para. 15, in which Legg J.A. stated:

 

In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. …

 

[35]        The effect of s.174 is to cast the burden of proving the absence of an immediate hazard at the moment the left turn begins onto the left turning driver.  This result flows inevitably from the wording of the section itself, given the nature of the absolute obligation the section creates.  If a left turning driver, in the face of this statutory obligation, asserts that he or she started to turn left when it was safe to do so, then the burden of proving that fact rests with them.

 

[38]        Whether a through driver is dominant turns on whether the driver’s vehicle is an immediate hazard at the material time, not why it is an immediate hazard.  Dominance identifies who must yield the right of way.  One consequence of this analysis is that negligence on the part of a through driver does not disqualify that driver as the dominant driver.  The through driver remains dominant, even though their conduct may be negligent.  Indeed, the through driver’s fault may be greater than the servient driver’s fault.  In other words, a through driver may be an immediate hazard even though that driver is speeding and given her speed would have to take sudden action to avoid the threat of a collision if the left turning driver did not yield the right of way.  The correct analysis is to recognize that the through driver is breaching his or her common law and perhaps statutory obligations and to address the issue as one of apportioning fault, not to reclassify the through driver as servient based on the degree to which the through driver is in breach of her obligations.

 

 [43]        In my view, the trial judge did not err in the principles he relied on in assessing the evidence.  The findings of fact he made were open to him on the evidence.  It was open to the judge to conclude that Ms. Nerval started her turn when Ms. Khehra’s vehicle was an immediate hazard.  Ms. Nerval did not discharge her burden of proving that the Khehra vehicle was not an immediate hazard.  Whether Ms. Khehra’s vehicle was an immediate hazard is broadly a function of its speed and distance from the intersection, but Ms. Nerval did not provide the judge with a sufficient evidentiary basis to make findings of fact in her favour on this issue.  I cannot conclude that the trial judge erred in finding that Ms. Khehra’s vehicle was an immediate hazard because Ms. Nerval failed to prove that it was not.

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