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Injury Claimant in Vancouver Found 85% at Fault for Car Accident on Oak Street


In a dramatic personal injury decision (Lutley v. Southern,2011 BCCA 299)the BC Court of Appeal overturned a judge’s finding that the injury claimant was only 40% at fault and found her 85% at fault. Take a read of my review of the trial judge’s decision in this flashing green light car accident case.
The Court of Appeal found that the trial judge was wrong when he found as a fact the other driver (the appellant) left the stop sign and started to cross Oak Street when the light was flashing green for traffic on Oak Street and was also wrong when he found the  appellant negligent for leaving the stop sign and failing to keep a proper lookout as she crossed Oak Street.
Surprisingly Judge Donald of the BC Court of Appeal found that it really did not matter what colour the light was when the drivers entered the intersection. As he points out,

“In my view, that determination does not depend on whether the light was red when the appellant entered the intersection, although logically on the evidence it is an irresistible inference that the light was red at that time [para 18]…[34]  Although, the colour of the light when the appellant entered the intersection was not determinative of whether she entered the intersection lawfully, there appears to have been no basis for the trial judge’s rejection of the appellant’s contention that she entered when the Oak Street light was red or his conclusion that she was not confident this was so.”

The unique circumstance of this case is that the injury claimant was approaching a flashing green light. Because the light was a flashing green light, pursuant to section  131(5)(a) of the Motor Vehicle Act the injury claimant was required “to approach the intersection or signal in such a manner that … she [was] able to cause the vehicle to stop before reaching the signal or any crosswalk in the vicinity of the signal if a stop should become necessary”. As Judge Donald states, “Clearly, the respondent [ injury claimant] did not do so and the trial judge so found.”
For many drivers in the Lower Mainland, and BC generally,  this decision comes as a shock and may add to the confusion already out there with respect to who is required to yield to who. This dilemma is evident in the dissenting reasons of Judge Chiasson in this same Court of Appeal case. As he points out,

“[55] Both drivers proceeded in the intersection at lane 6 without knowing whether it was safe to do so. Neither could see the approach of the other. They were both careless in causing the accident.

[56] With all due respect for the contrary view, I do not think the apportionment of fault in this case depends on the statutory provisions governing the right of way. Each party can assert a right of way but, on the facts, neither exercised the common law duty of care in a situation requiring caution.

[57]  In my judgment, it was not an error to find the parties roughly equal in liability. While the apportionment might have been reversed or assessed at 50:50, the judge’s determination is within a reasonable range and I would not disturb it.” Posted by Mr. Renn A. Holness

Issue: Should drivers approaching a flashing green light have a higher legal burden than drivers approaching a solid green light?

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