“There to Be Seen” right of way on BC Roads

Right of Way and road accidents

BC’s “Rules of the Road” are mostly set out in the Motor Vehicle Act. The act covers vehicle licensing and regulation, explains traffic signals, and governs how drivers must conduct themselves on the road. When it comes to determining liability in a motor vehicle accident though, common law principles are also important. There is a duty of care on drivers and pedestrians: to keep a proper lookout and take reasonable precautions in response to apparent potential hazards. In practice this means that even if you have the right of way under the Motor Vehicle Act, you still owe a duty to other drivers, as well as pedestrians, cyclists – even horses – to exercise caution. To avoid liability, you may be expected to yield to someone who does not have the right of way, as long as you could see them in time.

Swartz Brothers Ltd. v. Wills was an early Supreme Court of Canada case where the Court set out the proposition that “where there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible.” What this has meant in many court cases is that having the right of way is not a complete defence to liability for an accident. Whether failing to yield, driving improperly, or crossing against a light, if the other party was “there to be seen,” and you did not see them, you might be found to be at fault. In court, this often comes down to the very slight differences in the facts of a situation as described by the witnesses.

One recent BC Supreme Court case, Edwards v. Stroink, involved a driver who struck a pedestrian on Vancouver Island’s Pat Bay highway. The pedestrian was very intoxicated, and ran across the highway at night. She was badly injured. A friend who was with her, and also intoxicated, testified that he and the victim were at the median for about a minute before she became upset and crossed over onto the opposite side of the highway where she was hit. The driver testified that she suddenly saw the pedestrian jump over the median and run into the road. The judge observed that their versions of events clashed on precisely the important point: whether the victim and her friend were stationary at the median, “there to be seen” in enough time for the driver to notice them and stop. Ultimately the judge believed the driver’s version of events. He found that the pedestrian was not “there to be seen” and therefore 100% responsible for the accident.

In another case where a pedestrian was crossing midblock, Ashe v. Werstiuk, she was found to be only partly at fault. The driver of the backhoe that struck her was tried and found 75% responsible. This was probably because despite the clear day, dry roads, excellent visibility, and his slow rate of speed, the driver testified that he simply did not see the pedestrian. The judge found that he should have seen her, and if he had seen her, he would not have struck her. On appeal, the liability was reapportioned and the driver and the pedestrian were found equally at fault.

Many drivers think that if they have the right of way, they can proceed without further consideration of the other users of the road. Nothing could be farther from the truth! If you are involved in an accident, whether as a pedestrian, a driver, or a passenger, you should consult a personal injury lawyer. The team of experienced ICBC lawyers at John Mickelson Law Corporation can help ensure you receive compensation for your injuries, even if ICBC tries to argue you were partially at fault. Call us today at 604.684.0040 for your free consultation at our Vancouver or Surrey offices.

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