In Tang v. Rodgers et al., the Plaintiff was attempting to turn right into his driveway, when the Defendant attempted to pass the Plaintiff on the Plaintiff’s right. A collision ensued, and the Plaintiff brought an ICBC claim for damages for his injuries. There were conflicting versions of events as to what actually transpired. ICBC’S lawyer claimed that the motor vehicle accident was the Plaintiff’s fault, and vice versa. The court apportioned 25% liability to the Plaintiff for failing to activate his turn signal in a timely way, and 75% liability to the Defendant for negligently passing on the right without making sure that is was safe to do so.
[21] Section 158 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, prohibits passing to the right in most circumstances. Mr. Rodgers was negligent in passing on the right without ensuring that it was safe to do so. Mr. Tang was moving slowly in the travel lane when Mr. Rodgers decided to pass. Mr. Rodgers did not know what Mr. Tang was doing and thought he was confused. Mr. Rodgers took a significant risk.
[22] Mr. Tang was also negligent. Section 167 of the Motor Vehicle Act provides that a driver of a vehicle must not turn the vehicle to the right from a highway at a place other than an intersection unless the driver causes the vehicle to approach the place as closely as practicable to the right hand curb or edge of the roadway. Mr. Tang did not do so. Rather, as some drivers do, he placed his vehicle to the left before turning right. His vehicle was not as close as practicable to the right hand curb or edge of the roadway. Second, Mr. Tang did not shoulder check or look to his right before turning right. Finally, Mr. Tang only turned his right turn signal on immediately before the accident, which was too late to give warning to those behind him.
[23] The circumstances of this case are very similar to the circumstances that were before Mr. Justice Curtis in Boyes v. Mistal, [1990] B.C.J. No. 1755, 1990 CanLII 528 (SC), aff’d 1992 CanLII 1954 (BCCA). There Mr. Justice Curtis said:
Mrs. Boyes did not give sufficient warning when she signalled. Like many drivers she signalled and turned almost simultaneously, too late to warn Mr. Mistal. Nor did Mrs. Boyes turn from as close as practicable to the right hand edge of the roadway, she turned when there was more than a car width to her right – thereby risking the sort of collision that did occur. Mrs. Boyes is at fault in the collision for these reasons.
I find Mr. Mistal’s fault to be the greater. Mrs. Boyes was occupying the only lane of travel, she never left her lane, and had a right to be there. Mr. Mistal chose to pass Mrs. Boyes when she slowed down on the basis of what he assumed was happening. She had not signalled and Mr. Mistal should have known that in choosing to pass a vehicle which was obviously intending some maneuver not yet signalled, in its own lane, he was taking a significant risk. I find Mr. Mistal to be 75% at fault and Mrs. Boyes 25%.
[24] I, too, conclude that Mr. Rodgers’ fault was the greater. I find Mr. Rodgers 75% at fault and Mr. Tang 25% at fault.
