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Plaintiff Found 60% At Fault for Left-Turn Accident in ICBC Case

In the recently published case of Nerval v. Khehra, 2011 BCSC 1245, Mr. Justice Armstrong found the plaintiff 60% at fault for a motor vehicle accident which occurred in Abbotsford in October 2007. In that accident, the defendant drove into the side of the plaintiff’s left-turning vehicle.

The defendant argued that she was the “dominant driver” and that the plaintiff should have delayed her left turn in order to avoid the collision. The defendant argued that, in the circumstances, her vehicle was an “immediate hazard” and that the plaintiff was not looking and didn’t stop before making her turn. For her part, the plaintiff argued that the defendant was travelling at an excessive speed and that her vehicle was not an immediate hazard as alleged. She argued that the defendant’s car could have avoided the collision. It was alleged that the plaintiff passed a left turning van on the right prior to entering the intersection without proper care.

An independent witness testified at the trial and stated that the defendant was speeding at the time she entered the intersection.

In assessing who was at fault for the accident, the judge noted that the onus on the left turning driver is not absolute, and may be qualified based on the conduct of the through driver. In this case he found that both drivers had not met the duty of care imposed upon them by the law. He found the following:

[92] The distinguishing feature of this accident compared with the authorities cited by counsel … is that each of those cases involve circumstances in which the dominant driver occupied one of several marked lanes of traffic. In my view, that fact distinguishes those cases from the present. In this case, at the Intersection Blue Jay was a single southbound lane. Therefore, when Ms. Khehra “swerved” around the stopped southbound van she failed to see what, if anything, was at or in the Intersection. Similarly, Ms. Nerval was unable to see behind the stopped van and, although she saw some portion of the road north of the white van, she could not have seen directly behind that vehicle.

[93] When Ms. Khehra’s vision of the Intersection was compromised she was obliged to take additional care while swerving around the stopped white van; there was the possibility of left-turning vehicles or crossing pedestrians that might become hazards in her way. Ms. Nerval, however, carried a much higher obligation to delay her turn until her turn could be made safely. In Burgess, supra, Barrow J. states the servient driver must assess the distance and speed of the through travelling vehicle from the intersection. Ms. Nerval could not see the Khehra vehicle and so could not assess distance or speed. In my view, when Ms. Nerval, as the left turning vehicle, could not see the full roadway behind the opposite turning vehicle, she took the risk of starting the turn without sufficient knowledge of the oncoming traffic.

[94] Ms. Nerval was required to prove that “by the exercise of reasonable care” Ms. Khehra “should have become aware, of the servient driver’s own disregard of the law”… Ms. Nerval did not meet this burden of proof.

[95] Liability in this situation is determined according to the rules of the road and the reasonableness of the actions of the parties…

[96] I have concluded that both parties failed to meet their common law duties of care to each other. Ms. Khehra was the dominant vehicle but her conduct was a subsantial contributing factor to this collision. For these reasons I conclude that the liability for this collision rests 40% with Ms. Khehra and 60% with Ms. Nerval.

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