Driver Learns Right Of Way Is Not Always Ok

Conversations surrounding motor vehicle accidents inevitably contain the question, “Who’s fault was it?” The distinction between who is at fault in an accident has a significant impact on who is responsible for damages and injuries sustained in the accident. But assigning liability is not always a cut and dry exercise, even if it is clear who had the right of way. In a recent decision from the Court of Appeal of Alberta, a  motorist who had the right of way found they could still be held partially responsible for failing to notice someone else breaking the rules of the road.

The accident

The accident occurred in Calgary, Alberta on the afternoon of August 7, 2004. There were two vehicles involved. The respondent was driving one of the vehicles, while the appellant was operating the other, which was a taxi with passengers. Prior to the accident, the respondent was traveling southeast on 30th Street SE, approaching the intersection with Cottonwood Crescent SE, on which the appellant was driving. The vehicles collided when the appellant’s car entered the intersection where the respondent’s car had already entered. While the respondent was already in the intersection, it was the appellant who had the right of way.

The trial judge’s decision

At trial, the judge found that appellant’s car was likely to have been travelling at excessive speeds. While the respondent said she did not see the appellant’s car,  there was nothing about the weather that day that should have obstructed her view. The judge believed the respondent who said the appellant’s car hit them when they were already in the intersection. However, the judge pointed out that it was the respondent’s obligation to yield to the appellant “where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continued the same course at the same speed.”

The trial judge found the respondent to be liable, but he did not stop there. He then turned to the appellant’s liability, stating,

“(The appellant’s) narrative of the events would lead me to believe that, 1) he knew that the servient [respondent] vehicle was coming very fast and that, when he saw it coming very fast, it was only six to seven car-lengths away, and 2) he then looked to his right for one to two seconds before proceeding forward normally. He was an experienced commercial driver, he had a fare. It’s highly unlikely he would have proceeded under those circumstances without looking left again. Anybody would know that if another car was coming fast and it was only six to seven car-lengths away, it would soon be there. And it was imprudent and careless to proceed in those circumstances. And in fact, I would consider that most drivers would consider that to be taking a big risk. And yet he’s a class 1 and a class 4 commercial driver. And so, in my view, this evidence simply is inherently improbable. [emphasis added].”

The trial judge found that the appellant could have braked to avoid the collision, but he likely wasn’t paying attention. Each driver was found 50% liable for the accident.

The appeal

The appellant took the position that the trial judge did not correctly interpret and apply the law in finding he was negligent in failing to take steps to avoid the collision. The appellant submitted that he had no legal duty to yield to the respondent’s vehicle, since it was to the left of his.

However, although the province’s Traffic Safety Act and Use of Highway and Rules of the Road Regulation, Alta Reg 304/2002, states that when two vehicles enter an intersection at the same time, the person driving the vehicle to the left shall yield, common law has added a way for liability to be split. In a 1952 decision, the Supreme Court of Canada established a test that the court summarized as follows,

“the appellant [dominant driver] cannot be found liable unless the respondent can prove that the appellant was aware or reasonably should have been aware of the impending accident and had an opportunity to avoid the collision which a reasonably skillful driver would have taken. [emphasis added].”

In this case, the trial judge found that while the respondent should have seen the appellant’s vehicle, the appellant “did not do that which a reasonably prudent driver would have done when he saw, in plenty of time, a fast approaching vehicle on his left which did not appear to be adhering to its statutory obligation to yield. In other words, (the appellant) simply ignored the approaching vehicle. He did not slow down or brake (in fact, he admitted to accelerating into the intersection).”

As a result, the appeal was dismissed.

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