HERGOTT: Blind hazards in traffic

Lawyer Paul Hergott finishes part three of a three part series

This is the last of a three part series about blind hazards arising when traffic in lanes to your left come to a stop.

It’s a road recipe for disaster because other road users might try to cross in front of (or between) the stopped vehicles and your vision is likely blocked by those stopped vehicles.

Each of you and the other road user are on a blind collision course.

You might well have “right of way”, but your roadway rights are always tempered by the obligation to exercise caution in dangerous circumstances.

And then there’s section 158(2)(a) of the Motor Vehicle Act which provides that “…a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right when the movement cannot be made safely”.

I am going to provide you with three examples of how courts have assessed degrees of fault when these hazardous circumstances have led to collisions.

In Zaborniak v. Smerdal, 2014 BCSC 1367 , a driver had moved into the right of two lanes to pass a bus that had stopped at an intersection to turn left. The passing vehicle had cautiously slowed to 20-30 kms/hour, but was still assessed 40 percent at fault for colliding with an oncoming left turning vehicle:

“The fact that the plaintiff was driving below the speed limit did not make it safe to overtake and pass the bus. The plaintiff’s assumption that any left turning traffic would observe the rules of the road does not relieve her of responsibility. On approaching an intersection, such as the congested intersection at 177B Street and 56A Avenue, a driver must be able to see it fully in order to proceed safely into it.”

In Kirby v. Loubert, 2018 BCSC 498, Mr. Kirby faced a green light as he approached an intersection in the curb lane when the two lanes beside him were at a stop. His vehicle collided with an oncoming left turning vehicle. Even though he faced a green light, Mr. Kirby was still assessed 25 percent at fault:

“Given that traffic in the two lanes to his left was at a standstill, blocking his view of anything in the intersection, I find that reasonable care required him to move past that stopped traffic into the intersection with caution, reducing his speed below the speed limit. Had he done so, I find it probable that he would have been able to come to a stop, albeit a sudden one, before colliding with the defendant’s SUV. Instead, he proceeded at full speed.”

And finally, there is our Court of Appeal decision in Fabellorin v. Peterson, 1994 CarswellBC 278. A curb lane driver was assessed two-thirds at fault for colliding with a jaywalking pedestrian. Traffic in the next two lanes had stopped to allow the nanny with three year old in hand to cross. The court had this to say:

“Section 160 (now section 158) imposes a heavy onus on the driver of a vehicle attempting to pass other vehicles on the right. More especially is this so when the vehicles ahead have stopped or slowed on the roadway other than at an intersection or a crosswalk when there is no apparent reason for their doing so. The very fact that they have done so should alert the driver of the overtaking vehicle, intending to pass, that there must be some reason for the drivers ahead of him to have acted as they did and this should have alerted the overtaking driver to exercise extra caution to ensure that he or she can pass on the right safely.”

Each of these collisions would have been avoided if each road user had exercised appropriate caution in these dangerous circumstances that arise all the time on our roadways. Please use this column trilogy as a topic of discussion with those close to you and contribute to being a road safety solution.

READ MORE: Don’t believe in blind luck while driving

READ MORE: Don’t blame road conditions

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