MEMORANDUM TO: FROM: CC: RE: Lawyer-client Virtual Associate Project Manager, Taran Virtual Associates Client-Matter reference DATE: November 5, 2007 BRIEF DESCRIPTION OF ASSIGNMENT You have asked us to conduct research and provide a memorandum of law respecting the expected assessment of negligence as against the Plaintiff on the facts of this case. The facts and issues are more particularly set out below under the heading FACTS AND ISSUES. BRIEF CONCLUSIONS As you may be aware, there are thousands of cases which address the issue of liability in a motor vehicle collision. This memo does not attempt to discuss every case, instead I have first outlined the principles that apply in apportioning liability for left turning drivers and secondly, reviewed case law which is similar in fact. Assuming that your client was driving prudently in all the circumstances and did not enter the intersection on a red or amber light, case law with similar fact scenarios have assessed liability between 0-75% as against the Plaintiff. With respect to opposing counsel s offer of a 60/40 split in liability, although perhaps a bit high, it is not unreasonable. It is entirely possible that the evidence at trial would indicate that the Defendant simply made an error in judgment and liability would be assessed fully against the Defendant. However, if there is evidence (or there are doubts) that your client may not have been driving with reasonable care and attention, liability could easily be assessed against your client at 50% or higher. The fact that your client moved from behind the bus to pass it while it was waiting for traffic to clear should be of no consequence. It does not appear that your client was in violation of the Highway Traffic Act and therefore, he had the right of way and could assume that the other vehicles on the road would yield to him. - 1 -
FURTHER SUGGESTED RESEARCH As with all questions of liability, further research could always be conducted to provide a more fulsome estimate. However, no further substantive research is contemplated at this time. FACTS AND ISSUES Your client was travelling north behind a bus on Smith Road near its intersection with Main Street in the early evening of October 7, 2003. There are two lanes travelling north at the intersection, one which functions both as a left hand turning lane and a lane for traffic wishing to proceed straight through the intersection and the second which is a dedicated right hand turn lane. The left-most lane is wider than a regular lane where it meets Main Street. The bus, wishing to turn left at the intersection, stopped to wait for the traffic to clear. Your client pulled out to the right of the bus as he wished to continue travelling straight on Smith Road. While he was passing through the intersection, he was struck by the Defendant who was turning left from the opposite direction. Your client was severely injured in the collision. Counsel for the Defendant has suggested that liability should be split 60% against the Defendant and 40% against the Plaintiff. The issue is whether this proposal is appropriate. ANALYSIS Legislation Whether a driver will be liable for a collision depends in part on whether she has the right of way. Rights of way are determined by the Highway Traffic Act. Section 141(5) governs left turns at intersections: No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision. 1 From this section, I would submit that a driver that is travelling straight through an intersection is the dominant driver as she has the right of way. A driver who is turning left is the servient driver. 1 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 141(5). - 2 -
However, a consideration of rights of way is only applicable if the dominant driver enters into the intersection in a lawful manner. Your client passed the bus on the right hand side. Passing on the right is permitted under the Highway Traffic Act only when it is safe to do so and: (a) the vehicle overtaken is making or about to make a left turn or its driver has signalled his or her intention to make a left turn; (b) is made on a highway with unobstructed pavement of sufficient width for two or more lines of vehicles in each direction; or (c) is made on a highway designated for the use of one-way traffic only. 2 Although a driver is not permitted to leave the roadway when passing a vehicle on the right, it is lawful if the driver is overtaking a vehicle where the shoulder to the right is paved and the vehicle overtaken is making or about to make a left turn or its driver has signalled his or her intention to make a left turn. 3 General Principles A driver wishing to turn left has an obligation not to proceed unless it can be done safely. 4 Where each party's vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs. 5 The Court in Vibert v. Stern upheld the general principles outlined by the Supreme Court of Canada in Walker v. Brownlee and Harmon 6, and noted that the dominant driver will be absolved of all liability unless the servient driver can demonstrate that the dominant driver was, or reasonably should have been, aware of the impending accident 2 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 150(1). 3 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 150(2) and (3). 4 Pacheco (Guardian ad litem) v. Robinson, [1993] B.C.J. No. 154 at para. 15 (C.A.), online: QL(CJ) 5 Pacheco (Guardian ad litem) v. Robinson, [1993] B.C.J. No. 154 at para. 15 (C.A.), online: QL(CJ) 6 Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), online: QL(CJ). - 3 -
and could have taken evasive action. Once it is established that the servient driver failed to yield the right of way, he must show that the dominant driver, acting with reasonable care, could have and should have avoided the accident. This obligation of proof placed on the servient driver is commonly referred to as the reverse onus provision. 7 The dominant driver is not required to drive in anticipation of every possible danger that may arise. He may assume that other drivers on the road will obey the law and yield the right of way. 8 Without such an assumption, traffic would come to a standstill. 9 The dominant driver is still required to obey the rules of the road and ensure that he is driving with due care and attention in accordance with all of the circumstances, otherwise he will be found contributorily negligent. 10 A dominant driver must attempt to avoid a collision if possible and act reasonably. 11 If a dominant driver is travelling at an excessive rate of speed he may be liable for some or all of his injuries if he collides with a servient driver who is turning left. 12 It is assumed that the dominant driver is driving reasonably. The servient driver has the onus of proving that the dominant driver was not driving appropriately in the circumstances, otherwise no liability will attach. 13 A servient driver who makes an error of judgment and miscalculates whether he can turn left in safety will likely be held fully liable for the collision. 14 It has been held in several cases that if a dominant driver is travelling in a through lane and, on seeing that the light is about to turn red, pulls out into an adjacent lane in order to accelerate quickly to make the light, that driver will be held 100% liable for her injuries. 15 Similarly, if it is proven that the driver in the through lane could have stopped for an amber or red light, she may be responsible for any injuries sustained when she collides with 7 Vibert v. Stern, [1997] A.J. No. 1216 at para. 14 (Q.B.), online: QL(CJ); see also Pacheco (Guardian ad litem) v. Robinson, [1993] B.C.J. No. 154 (C.A.), online: QL(CJ). 8 Johnston National Storage Ltd. v. Mathieson, [1953] 2 D.L.R. 604 (S.C.C.), online: QL(CJ); Hill v. Bradley, [2001] N.B.J. No. 443 (Q.B.), online: QL(CJ). 9 Vibert v. Stern, [1997] A.J. No. 1216 at para. 15 (Q.B.), online: QL(CJ); Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), online: QL(CJ). 10 Vibert v. Stern, [1997] A.J. No. 1216 at para. 15 (Q.B.), online: QL(CJ); Wittmeier v. Scholes, [1998] A.J. No. 495 (Q.B.), online: QL(CJ). 11 Vibert v. Stern, [1997] A.J. No. 1216 at para. 16 (Q.B.), online: QL(CJ); Bishop v. Blake, [2003] N.J. No. 333 at para. 33 (Supt. Ct. T.D.), online: QL(CJ) quoting from Ryall v. Coombs (1995), 131 Nfld. & P.E.I.R. 299. 12 Giles v. Canada (Attorney General), [1996] B.C.J. No. 449 (C.A.), online: QL(CJ). 13 Vibert v. Stern, [1997] A.J. No. 1216 at para. 17 (Q.B.), online: QL(CJ). 14 Hill v. Bradley, [2001] N.B.J. No. 443 (Q.B.), online: QL(CJ); Au v. Carnegie, [2003] A.J. No. 1438 (Q.B.), online: QL(CJ), aff d [2005] A.J. No. 88 (C.A.), online: QL(CJ). 15 See for example: Waiting v. Brown, [2002] A.J. No. 684 (Q.B.), online: QL(CJ); Snow v. Toth, [1994] B.C.J. No. 563 (S.C.) as noted in Shahidi v. Oppersma, [1998] B.C.J. No. 2017 (Sup. Ct.), online: QL(CJ); Groen v. Abad, [1992] B.C.J. No. 2210 (C.A.), online: QL(CJ). - 4 -
a left turning vehicle. 16 Certainly in both of these circumstances, the actions of the driver going straight through the intersection have, at a minimum, contributed to his or her injuries. Generally, liability for the driver who takes such a chance will be high (70-100%). Pertinent Case Law The following cases are factually similar to the present case. Shewchuk v. Nardi, [1990] O.J. No. 157 (Dist. Ct.), online: QL(CJ). From the very brief reasons for this decision, it appears that the fact situation was very similar to the case at hand. The Plaintiff passed several vehicles on the right before entering the intersection. The Defendant was turning left and collided with the Plaintiff. The Defendant saw the Plaintiff s vehicle before entering the intersection and traffic was heavy at the time. The Court stated that the Plaintiff created an unreasonable risk of a collision occurring by passing the other southbound vehicles to their right and by entering the intersection as he did. The Court did not find the Plaintiff to be entirely responsible for the accident as the Defendant should have seen the Plaintiff before he commenced his turn. The Court apportioned liability as 25% as against the Defendant and 75% as against the Plaintiff. Dong v. Ho, [1993] B.C.J. No. 404 (Sup. Ct.), online: QL(CJ). 17 In this case, it was the left turning driver that brought the action against the driver travelling straight through the intersection. According to the facts, there was one lane for each direction of traffic plus a parking lane to right. The dominant driver entered the parking lane to the right of a bus which had stopped to turn left at the intersection in order to pass the bus and continue straight through the intersection. The headnote summarizes the Court s findings with respect to liability as follows: The defendant as dominant driver had the right of way. The driver making the left turn was obliged not to proceed unless it was safe to do so. Where visibility was blocked the dominant driver proceeding across the intersection was entitled to continue. The presence of the left turning vehicle did not raise the presumption of an unexpected happening and cast a duty to take extra care on the defendant. The plaintiff as servient driver disregarded her statutory duty to yield the right of way. To fix blame on the dominant driver it had to be established that after he became aware of the servient driver's disregard he had 16 See for example: Waiting v. Brown, [2002] A.J. No. 684 (Q.B.), online: QL(CJ). 17 Although this is a case from British Columbia, the facts are remarkably similar and the legislation is comparable. - 5 -
sufficient opportunity to avoid an accident. Any doubt was to be resolved in the dominant driver's favour. The Court dismissed the Plaintiff s claim. Ayoub v. Dreer, [2000] O.J. No. 3219 (S.C.J.), online: QL(CJ). In this case, the Plaintiff was driving his motorcycle and was the dominant driver. While the Plaintiff was doing a wheely at a speed in excess of 50 km/hr over the speed limit, the Defendant quickly turned left and collided with the Plaintiff s vehicle. The Court noted that a driver making a left hand turn must exercise caution and only proceed when safe to do so. 18 The Defendant should have seen the Plaintiff given the amount of light in the area and attributed 20% liability to the deceased Plaintiff for driving so carelessly at the time. SCOPE OF RESEARCH I reviewed prior research completed that was relevant to the issue. I also conducted searches using electronic databases and noted up any pertinent cases. The precise queries conducted in electronic databases are described below under the heading ELECTRONIC DATABASE QUERIES. ELECTRONIC DATABASE QUERIES Quicklaw: principle /p liability & left turn & vehicle left /10 turn & liability & accident OR colli! & pass! /10 right CanLII: left turn /p accident OR collision pass /7 right AND NOT crown (only Ontario cases) 18 Ayoub v. Dreer, [2000] O.J. No. 3219 (S.C.J.), online: QL(CJ). - 6 -