If I have the right-of-way, can I be found liable for an evasive action – causing a collision or crash – to avoid another vehicle who had a duty to yield? What is my duty as a driver who possesses a statutory right-of-way?
A decision released this week by the British Columbia Supreme Court discusses the duty a driver with a statutory right of way owes to other users of the road and whether such driver will be found liable for taking an evasive action to avoid a collision (Belos v Michaels, 2017 BCSC 1217). In this case a defendant driver, after stopping at a stop sign, entered into an intersection right before an approaching motorcyclist traveling northbound on a through road. The defendant driver claims he couldn’t see the northbound traffic due to parked vehicles obstructing his view. While in the intersection, the defendant driver saw the motorcyclist and he hit his breaks. The motorcyclist took an evasive action to avoid hitting the defendant driver’s vehicle and as result of the maneuver, fell off his motorcycle.
ICBC’s lawyer argued that the defendant driver’s vehicle did not pose an immediate hazard when he was in the intersection and there was plenty of space in the northbound lane for the motorcyclist to get around the vehicle safely. Alternatively, ICBC’s position was that the motorcyclist was contributorily negligent for violating statutory and common law obligations by driving without due care and attention at a speed that was in excess relative to the conditions. At trial the Honorable Madam Justice Hyslop had this to say:
[26] A driver can proceed on the assumption that other vehicles will do their duty and obey traffic regulations: Horsman v. McGarvey (1983), 43 B.C.L.R. 192 (C.A.) and Walker v. Brownlee and Harmon, [1952] 2 D.L.R. (3d) 296 (Man. C.A.) at p. 450.
[27] In Neufeld v. Landry (1974), 55 D.L.R. (3d) 296 (Man. C.A.), the Court said at pp. 298-299 that a driver, by his conduct, who takes evasive action to avoid a collision, is assessed as follows:
The conduct of the plaintiff driver must be assessed in light of the crisis that was looming up before her. If in the “agony” of the moment” the evasive action she took may not have been as good as some other course of action she might have taken – a doubtful matter at best – we would not characterize her conduct as amounting to contributory negligence. It was the defendant who created the emergency which led to the accident. It does not lie in his mouth to be minutely critical of the reactive conduct of the plaintiff whose safety he had imperiled by his negligence.
[28] The duty of a driver, having a statutory right-of-way, was commented upon in Walker at p. 460:
… “… a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it. To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his doing so will be a collision which he reasonably should have foreseen and avoided.
[32] When a driver has the right-of-way, and there is no immediate hazard, but he later creates one, that driver will be responsible or will contribute to the cause of the accident.
[33] An immediate hazard was defined in Neufeld v. McCrae, 2008 BCSC 539 at paras. 38-39:
[38] The leading authority as to when an approaching vehicle constitutes an “immediate hazard” is Raie v. Thorpe (1963), 43 W.W.R. 405, a left turn case. In Raie, Tysoe J.A. stated at p. 410:
I do not propose to attempt an exhaustive definition of “immediate hazard”. For the purposes of this appeal it is sufficient for me to say that, in my opinion, if an approaching car is so close to the intersection when a 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” within the meaning of section 164.
[39] The question of immediate hazard and right of way is to be assessed in the moment before the driver proposing to make the manoeuvre at issue commences to make it: Raie, pp. 413-414.
On the facts at hand:
[43] The defendant was negligent when he entered the intersection of Copperhead Drive and Hugh Allan Drive, as he could not see the traffic proceeding north on Copperhead Drive.
[44] I find the defendant entirely liable for the accident. I find no contributory negligence on the part of the plaintiff.
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