Key terms relevant to assessment of liability
This page discusses some of the key terms that are used when discussing motor vehicle accident liability.
The Motor Vehicle Act, RSBC 1996, c. 318 sets out many of the “rules of the road” and its terms are often relevant to the assessment of fault for motor vehicle accidents. An important defined term in the Motor Vehicle Act which has a statutory meaning somewhat different from its everyday meaning is the word “highway”, which is defined as follows:
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
(Motor Vehicle Act, RSBC 1996, c. 318, s. 1).
Part (b) of the definition captures the essence of what types of roads are highways i.e. they are roads used by the general public. The definition of “highway” in the Transportation Act, S.B.C. 2004, c. 44, referred to in part (a) of the definition above, confirms this general principle:
"highway" means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by [an official act of government]
The general effect of these two definitions for “highway” is that all public streets, roads, trails, lanes, bridges, trestles, tunnels, ferry landings, ferry approaches and other public ways will all be “highways”.
Roads that are excluded from the definitions of highway are industrial roads, and private roads.
Certain provisions of the Motor Vehicle Act, RSBC 1996, c. 318 state that servient drivers must yield to dominant drivers who are an “immediate hazard”. For example, s . 176(2) of the Motor Vehicle Act, RSBC 1996, c. 318 says that servient drivers pulling out onto a road must yield to dominant drivers who are an immediate hazard:
The driver of a vehicle about to enter or cross a highway from an alley, lane, driveway, building or private road must yield the right of way to traffic approaching on the highway so closely that it constitutes an immediate hazard.
(Motor Vehicle Act, RSBC 1996, c. 318, s. 176(2)).
The cases have discussed the principle of “immediate hazard” as follows:
[A]n approaching car is an immediate hazard if the circumstances are such as to require the driver of that car to take some sudden or violent action to avoid threat of a collision if the servient driver fails to yield the right-of-way. I agree with Currie, J., in Peek et al. v. S. Cunard & Co. (1958), 40 M.P.R. 236 at p. 241, that ‘Speed and distance generally determine what constitutes an immediate hazard’, or as it was put by Cannon, J, in Swartz Bros. Ltd. v. Wills,  3 D.L.R. 277 at p. 279,  SCR 628 at p. 632: ‘... distances must be translated into time in order to determine what are the rights of the parties.’
(Keen v. Stene (1964), 44 D.L.R. (2d) 350 at 359 per Davey J.A. (BCCA))
I do not propose to attempt an exhaustive definition of “immediate hazard”. For the purposes of this appeal it is sufficient for me to say that, in my opinion, if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard”
(Raie and Raie v. Thorpe, (1963) 43 W.W.R. 405 at 410 per Tysoe J.A. (BCCA)).
The phrase “right of way” is not defined in the Motor Vehicle Act, RSBC 1996, c. 318, but has been judicially considered:
"Right of way" is not defined by the Motor Vehicle Act. The 6th edition of Black's Law Dictionary defined the term in this way: "'Right of way' is also used to refer to a preference of one of two vehicles, or as between a vehicle and a pedestrian, asserting right of passage at the same place and time, but it is not an absolute right in the sense that possessor thereof is relieved from duty of exercising due care for his own safety and that of others."
In my view this correctly defines the notion of a right of way and its position in the law of negligence. Where an accident occurs on a highway, it a useful starting place to determine who had the right of way in accordance with the prevailing rules of the road. Whoever has the right of way is entitled to assume that others will abide by the rules of the road but cannot do so without regard for his own safety or the safety of others.
(Enright v. Marwick, 2004 BCCA 259 at para. 21-22).
Legislative bodies have, for many years, been enacting provisions intended to facilitate and make safer the movement of pedestrians and vehicular traffic on the highways and public streets. The general rule is that these provisions and regulations are supplementary, or in addition, to the common law duty that rest upon all persons using the highways to exercise due care. Swartz Bros. Ltd. v. Wills,  SCR 628]; Royal Trust Co. v. Toronto Transportation Commission,  SCR 671]. In the latter case Mr. Justice Davis, with whom the majority of the Court agreed, stated at p. 674:
Generally speaking a motorman on a street car is entitled to assume that a pedestrian or motorist approaching the street car tracks will stop to permit the street car to pass by and there was in this case a statutory right of way in favour of the street car. But the existence of a right of way does not entitle the motorman on the street car to disregard an apparent danger that confronts him.
(British Columbia Electric Railway Company Limited v. Farrer,  SCR 757 at 763).
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