In Vagramov v. Zipursky, the Plaintiff was injured in a motor vehicle accident. As the Plaintiff was traveling through an uncontrolled intersection, the Defendant attempted to traverse the uncontrolled intersection, at which point a collision occurred. The Plaintiff brought an ICBC claim for injuries. The Court, in discussing the area of law with respect to uncontrolled intersections, found the Defendant to be 100% at fault.
[130] Section 173(1) of the MVA sets out the statutory rules of the road for vehicles that approach an uncontrolled intersection of the nature present in the case at bar. That section provides:
Except as provided in section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.
[131] The law relating to the duties of motorists as they approach uncontrolled intersections was set out in the seminal case of Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) [Brownlee]. The following observations of Mr. Justice Cartwright, at 461, are apposite to the case at bar:
While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that 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 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.
[137] Both Mr. Vagramov and Mr. Kam say the Zipursky vehicle was travelling very quickly. Mr. Kam confirms the Zipursky vehicle was going faster than the Vagramov vehicle. Mr. Vagramov says he was travelling approximately 40 kilometres per hour, while Mr. Zipursky says he was travelling 20 to 30 kilometres per hour. I accept the evidence of Mr. Vagramov and Mr. Kam over that of the defendant and find Mr. Zipursky was travelling at a much higher rate of speed than he maintains when the collision occurred.
[138] I also conclude that the Vagramov vehicle was the dominant vehicle and had the right of way. It had reached the intersection before the Zipursky vehicle and was in the process of traversing it when it was struck by the Zipursky vehicle. Contrary to the submission of counsel for the defendant, I find it was the Zipursky vehicle that struck the Vagramov vehicle, not vice versa.
[141] Mr. Vagramov was the dominant driver with the right of way. Mr. Zipursky was the servient driver whose responsibility it was to yield to Mr. Vagramov.
