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.

The application of the dominant/servient driver test is sometimes applied by the Courts in order to assist in determining what party is at fault in a car accident. A dominant driver is the driver who has the right of way, and the servient driver is the driver who must yield the right of way to the dominant driver. Despite this, there are certain circumstances in which the dominant driver can be held to be liable for a motor vehicle accident.

 

In Campbell v. Swetland, the Plaintiff was injured as a motorcyclist when the driver of another vehicle turned left across her path. The Plaintiff sustained serious injuries, and brought an ICBC claim for various heads of damages. The Court discussed the legal principle of the dominant/servient driver test in the context of a left turning vehicle and an approaching motorcyclist, eventually holding that the driver of the vehicle was 100% liable for the accident.

 

[32]           In Gervais (Guardian ad litem of) v. Yewdale 1994 CanLII 507 (BC CA), (1994), 99 B.C.L.R. (2d) 62, 51 B.C.A.C. 97, 84 W.A.C. 97 the Court of Appeal held a left turning driver will be negligent when a left turn is commenced in front of a dominant driver when the dominant driver poses an immediate hazard at the time the left turn is made. An immediate hazard was defined by the Court in Raie v. Thorpe, [1963] B.C.J. No. 14, which stands for the proposition that, if an approaching car is so close to the intersection when the driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” (para 18).

 

[33]           Following a review of the law in Luvera v. Benedict, [2010] B.C.J. No. 2492 it was determined the “onus is on the servient driver to prove that the dominant driver was also negligent in that his or her negligence was a cause of the accident” and that a “servient left-turning driver has an obligation to take reasonable steps to determine if the dominant driver poses an immediate hazard. The time this is determined is at the moment just before the turn is commenced”

 

[36]           Finally, according to Beecroft v. Ravenek Greenhouses Ltd. 1997 CanLII 457 (BC SC), (1997), 46 B.C.L.R. (3d) 324 a speeding motorcycle was not at fault when it struck a left turning vehicle because the driver of the truck failed to prove that the motorcyclist deprived themselves of opportunity to avoid collision. Similarly, inBurgess v. Fisher, 2009 BCSC 1766 the plaintiff had accelerated to above the speed limit when the defendant made a left turn. Speed was the main point of dispute as the plaintiff was likely travelling above the speed limit however, given the facts it was not possible to know if the collision could have been avoided even if the plaintiff was travelling at the speed limit. Therefore, since the defendant did not look far enough ahead to assess whether the plaintiff would pose an immediate hazard the defendant was 100 percent liable.

 

[37]           The defendant here has not shown how the plaintiff denied herself an opportunity to avoid similarly striking the defendant.

 

[38]           The plaintiff was there to be seen by the defendant before commencing her left turn. The defendant failed to keep a proper lookout for oncoming traffic and commenced her turn without stopping. She was also distracted by looking in her rear view mirror for any potential speeding vehicle behind her and looking at the same time at Sturbo Road to line up her turn to avoid gravel pot holes. Unfortunately she quickly made her turn without further consideration of potential oncoming traffic. The collision was unavoidable. I find the defendant one hundred percent in the wrong and wholly liable for the collision.

In Ulmer v. Weidmann, the Plaintiff’s husband was killed as a motorcyclist in a collision with a motor vehicle. The accident occurred when the Plaintiff’s husband struck a left turning vehicle. Liability was in issue, however the Court ruled that the Defendants were fully liable for the accident. The Defendants acknowledged some liability on their party, but argued that there should be an apportionment of liability with the Plaintiff’s husband. The Court ruled that the Plaintiff’s husband’s proximity to the intersection constituted an immediate hazard, that the Plaintiff’s husband was not speeding,

 

[70]           However, he was entitled to proceed on the basis that any left-turning vehicle would comply with the rules of the road and yield the right of way to him as the dominant driver in the position of an immediate hazard proceeding through the intersection.

 

[71]           The principle laid down in Walker v. Brownlee, [1952] 2 D.L.R. 450, is applicable here. Where the driver in the servient position disregards his statutory duty to yield the right of way and a collision results, if he seeks to cast any portion of the blame on the driver having the right of way he must establish that after that driver became aware, or by the exercise of reasonable care should have become aware of his disregard of the law, that driver had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself. Any doubts are to be resolved in favour of the driver having the right of way.

 

[72]           The decision of the Court of Appeal in Pacheco (Guardian ad litem) v. Robinson, 1993 CanLII 383 (BC CA), [1993] B.C.J. No. 154; 75 B.C.L.R. (2d) 273 at para. 15 of that judgment is also applicable. There Legg J.A., writing for the Court, said:

 

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. Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs.

 

[73]           It is my conclusion that Mr. Ulmer was not negligent in proceeding into the intersection in reliance on his rights as the dominant driver and there was no opportunity for him to avoid the collision with the defendants’ vehicle that was proceeding into and across the curb lane in complete disregard of the driver’s obligation to yield the right of way. Mr. Ulmer was not obliged to presume that the defendants’ left-turning vehicle would not yield the right of way to him nor cast any duty on him as the dominant driver to take any extra care as there was no sufficient opportunity for him to be aware of the defendant driver’s disregard of the law before the collision occurred.