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Left turning liability

Is the left-turner always at fault in a collision? What if the through driver is also negligent?

Today’s summary comes from a 2010 decision of the Supreme Court (Kelly v. Yuen 2010 BCSC 1794). Mr. Justice MacKenzie provides a thorough overview of the law on left-turns, which can be generally summarized, as a requirement that the left-turning must determine whether a turn can be made safely before making the turn.  When collisions involving a left-turning vehicle occur, liability is assessed on the particular facts of the case.

This case had unique facts: the plaintiff was waiting to turn left at a controlled intersection in Vancouver in heavy rush-hour traffic. The first two lanes of travel were stopped to keep the intersection clear in the heavy traffic, and the plaintiff used this opportunity to make her left turn. The only open lane was the far right HOV lane (the last one she would cross in her left turn) and only buses and bicycles were permitted to travel in that land during this time of day. As she turned, the defendant accelerated into the intersection in the HOV lane (driving a car) and caused the collision. The plaintiff alleged that the defendant was at-fault for the collision and the Judge agreed:

[54]         As stated by Currie J. in Peek et al. v. S. Cunard & Co. (1958), 40 M.P.R. 236 at 241 (N.S.C.A.), and adopted by Davey J.A. in Keen v. Stene (1964), 44 D.L.R. (2d) 350 at 359 (B.C.C.A.), “Speed and distance generally determine what constitutes an immediate hazard.”

[55]         As Ker J. said in Rothenbusch v. Van Boeyen, 2010 BCSC 1518, at para. 146:

The question of immediate hazard and right of way, however, is to be assessed temporally in the moment before the driver proposing to make the left hand turn at issue commences to make it: Raie, pp. 413-414. If an approaching car does not present an immediate hazard when the manoeuvre is commenced but later creates one by unreasonable conduct such as speeding, the approaching driver will be held responsible for the ensuing collision: Devidi v. Lam, [1998] B.C.J. No. 912 (S.C.); Rollins v. Lovely, 2007 BCSC 1752, at para. 35.

[56]         I am mindful of the comments of Legg J.A. in Pacheco. I accept that the presence of a left turning driver does not create a presumption that something unexpected might happen or impose a duty on the dominant driver to take extra care. However as is emphasized in Brucks, and noted in Kokkinis, a dominant driver is obligated to “observe the rules regulating the traffic of the streets”. By failing to operate his motor vehicle in the allowed lane of travel and at a speed appropriate to traffic conditions, Mr. Yuen breached this duty and fell below the standard expected of a careful and prudent driver on the morning in question.

[57]         I appreciate that Goepel J. in Robinson v. Wong, 2007 BCSC 708, considered a dominant driver’s liability under s. 174 of the Motor Vehicle Act in a situation where a dominant driver in a curb lane hit a left turning driver. Goepel J. at para. 22 said the following:

… Mr. Wong was not required to slow down or come to a stop because traffic in the adjoining southbound lanes was backing up. Nothing about the situation would alert him that Ms. Robinson would disregard her statutory duty and fail to yield the right of way. The photographs disclose that impact was between the left front of Mr. Wong’s vehicle and the right front of Ms. Robinson’s vehicle. The location of the damage suggests that the collision would have occurred almost immediately after Ms. Robinson entered into the curb lane. In the circumstances, the defendant had no reasonable opportunity to avoid the collision.

[58]         In drawing this conclusion, Goepel J. found Ms. Robinson not to be a credible witness and did not accept her evidence that she stopped before turning or first checked to see if there was oncoming traffic approaching the intersection.

[59]         The circumstances here are significantly different. This is not a situation where the servient driver has disregarded her statutory duty. Here it is just the reverse. Mr. Yuen flagrantly ignored the restriction on travel in the curb lane in a clear attempt, in my opinion, to drive along the restricted lane in order to get to his destination earlier rather than wait like other responsible drivers who were complying with the curb lane restriction. As Esson J.A. said in Morgan, I am satisfied that Mr. Yuen should have made “due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day”.

[60]          As Ker J. said in Rothenbusch at para. 149, “Who has the statutory right of way is informative; however, it does not determine liability in an accident. Drivers with a statutory right of way must still exercise caution to avoid accidents where possible.”

[61]         In these circumstances, I am satisfied a reasonably careful and prudent driver would not have pulled into the restricted curb lane, as Mr. Yuen did with limited vision, and accelerate towards a backed up intersection at an excessive rate of speed. As the dominant driver, Mr. Yuen was not required to take “extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle.” (Salaam v. Abramovic, 2010 BCCA 212 at para. 25). However, I am satisfied a reasonably prudent driver, exercising reasonable caution, would have had a sufficient opportunity to avoid the accident.

[62]         Furthermore, Ms. Kelly did not breach her statutory duty under s. 174 to yield the right of way. She took reasonable steps to determine she could make the left turn safely. The evidence which I have accepted establishes that when Ms. Kelly looked right and entered the curb lane, the Yuen vehicle was not “so close as to constitute an immediate hazard”.

[63]         As a result, I am satisfied that the accident was caused solely by the negligent driving of Mr. Yuen. The defence has not established any contributory negligence on the part of Ms. Kelly.