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Liability

I was waiting in the intersection  to make a left hand turn. When the traffic light turned red I made  the turn in order to clear the intersection. An oncoming car ran the light and hit me. Whose fault is it?

Liability was at issue in the recent case of Severud v. Smit (2016 BCSC 1021). The plaintiff was hit by an oncoming vehicle while turning left on a red light after having had to wait through a green and then yellow. The defendant testified that the light had just turned yellow when she entered the intersection and was seeking an equal apportionment of liability. An independent witness’s testimony corroborated that of the plaintiff in that the light was red and the plaintiff would have had to have turned in order to clear the intersection. The witness also stated that his impression was he could see that the collision was going to happen as the plaintiff began her turn.

Justice Sunders assessed fault to the defendant at 90% with a portion of liability assigned to the plaintiff for not anticipating the possibility the defendant might have been about to run the light.

[10]        The defendant seeks an equal apportionment of liability, but the case authorities relied upon by the defendant – principally Mitchell v. ICBC, 2004 BCSC 983, and Tejani v. Greenan, 2001 BCSC 803 – involve vehicles entering an intersection on a yellow light, in circumstances where the left-hand turning driver ought to have appreciated that the oncoming vehicle was an immediate hazard.

[11]        The governing authorities in situations where the oncoming vehicle enters on a red light are Uyeyama v. Wittenberg, [1985] B.C.W.L.D. 4209 (B.C.C.A.), and Morgan v. Hauck (1988), 27 B.C.L.R (2d) 118 (B.C.C.A.). These decisions support the proposition that a left-turning driver is entitled to expect that an oncoming vehicle will not enter the intersection on a red light. In Uyeyama, the trial judge had found the left-turning driver contributorily negligent to the extent of 15%; the Court of Appeal disagreed, and substituted a finding of 100% liability on the part of the defendant. In Morgan, the trial judge had divided liability 90/10 in favour of the left-turning vehicle. On the appeal, MacFarlane J.A. stated his agreement with the trial judge that the plaintiff had been guilty of some negligence in failing to keep a proper lookout before proceeding to make the turn. In concurring reasons, Esson J.A. observed that that the finding of contributory negligence might be open to doubt, given the heavy onus resting upon oncoming drivers not to “run the red”, and given the decision in Uyeyama, but he agreed with MacFarlane J.A.’s view that an apportionment of liability should not be disturbed except in very strong and exceptional circumstances. MacFarlane J.A. recorded his agreement with those observations.

[12]        In my view it is clear that the defendant bears an overwhelming degree of responsibility for this collision, at least. The question is whether in the circumstances there ought to be any finding of contributory negligence on the part of Ms. Severud, given her evidence as to having observed the defendant’s vehicle approaching the intersection at speed when it was only a relatively short distance back from the intersection, at the point in time when she began her turn. The plaintiff’s own testimony as to the defendant’s position is consistent with that of the independent witness. Although the plaintiff testified that she believed the defendant was slowing down, this came across only as having been an impression on her part. The defendant gave no evidence to that effect. From the testimony of the two parties and the independent witness, I conclude that at the point in time when the plaintiff began her turn, the defendant, regardless of whether she was in fact slowing, was close enough in proximity to the intersection and proceeding at such speed that there was not enough distance for the defendant to be able to bring her vehicle to a stop. The plaintiff, having seen the defendant’s vehicle, ought to have anticipated that the defendant might have been about to “run the red”.

[13]        I also accept the plaintiff’s evidence that there had already been one oncoming vehicle proceed through the intersection on the red, and that the plaintiff was therefore in the position of posing an obstacle to any traffic intending to travel eastbound through the intersection along Hurd Street. Ms. Severud would have been under a duty to clear the intersection and as she was late into the light cycle it would only have been natural for her to have felt some urgency to do so. However, this was not a situation akin to an error in judgment being made in the agony of collision. Ms. Severud, though she was under an obligation to clear the intersection, remained under an obligation to use due care in driving her own vehicle. Given the evidence of Mr. Henriksen that he could anticipate the accident from the moment the plaintiff began the turn, and given that Ms. Severud did see the defendant’s vehicle and was in a position to make an accurate judgment as to the defendant’s probable intentions, I find her to have been contributorily negligent. Her degree of fault relative to that of the defendant, however, is very minor, and I assess the defendant’s fault at 90%.

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