Dominant and servient drivers

This page discusses principles related to dominant and servient drivers.

 

Meaning of dominant and servient

A key consideration in assessment of fault in many accidents is which driver had the right of way (the dominant driver) and which was supposed to yield (the servient driver). Although dominant drivers are generally entitled to expect servient drivers to yield, as indicated by the discussion below dominant drivers are nevertheless required to keep a sharp lookout and are required to yield if it becomes apparent that a servient driver is not yielding as they ordinarily would.

 

The terms “dominant” and “servient” are generally used when there are statutory provisions determining which road user has the right of way:

 

In my opinion, Cartwright J. employed the term "servient" as a convenient means of indicating that the legislature had laid down rules as to who was, in some circumstances, to yield to whom.

(Samograd v. Collison, 1995 CanLII 708 at para. 20 (BCCA)).

 

In Samograd v. Collison, 1995 CanLII 708 (BCCA) the plaintiff was riding a motorcycle on the Island Highway just south of Campbell River when he overtook the defendant who was driving a motorcar. The plaintiff motorcyclist did not notice that the motorcar’s left turn light was on signaling that the defendant intended to turn left. Although the defendant looked in his rear-view mirror before turning left, he did not look in his side mirror before he commenced his turn and so did not see the motorcyclist overtaking. The defendant commenced his left turn and the two vehicles collided. Neither driver was speeding or driving in any other obviously foolish way.

 

I am of the opinion that the concept of dominant and servient driver, which is derived from the statutory rules of the road, has no application on the facts of this case and the learned judge erred when he concluded the appellant was, as a matter of law, under a greater obligation than was the respondent.

(Samograd v. Collison, 1995 CanLII 708 at para. 11 (BCCA)).

 

All drivers to keep a reasonable lookout

There is an obligation on all drivers to pay attention:

 

[W]here there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible.

(Swartz v. Wills, [1935] SCR 628 at 634).

 

Dominant drivers are entitled to assume servient drivers will obey the law

Dominant road users are entitled to assume that servient road users will obey the law:

 

She was then entitled to assume that the driver of a motor vehicle coming from the north would obey the law and yield her right of way…

(Petijevich et al. v. Law (1968), 1 D.L.R. (3d) 690 at 698 (S.C.C.)).

 

Similarly:

 

The party lawfully within the intersection is entitled to assume that the other party will obey the law and yield the right of way.

(Melgarejo-Gomez v. Sidhu, 2002 BCCA 19 at para. 27).

 

Similarly:

 

The plaintiff was not bound to guard against every conceivable eventuality but only against such eventualities as a reasonable person ought to have foreseen as being within the ordinary range of human experience. The plaintiff was entitled to proceed on the assumption that all other vehicles will do what it is their duty to do, namely observe the rules regulating traffic.

(Pacheco (Guardian ad litem) v. Robinson, [1993] BCJ No 154 at para. 11 (CA)).

 

More recently, the British Columbia Court of Appeal affirmed the principal that it will generally not be a defence to a servient road user to say that a dominant road user should have noticed the servient road user breaching the law earlier:

 

No provision in law requires a driver to exercise a duty such that one could say that Mr. Sidhu ought to have seen the pedestrian earlier. Regardless of whether Mr. Sidhu applied his brakes before or after striking Mr. Melgarejo-Gomez, one can assume he applied them upon first becoming of aware of the pedestrian. That is all that was required of Mr. Sidhu, as (according to the jury's finding) he was lawfully within the intersection and Mr. Melgarejo-Gomez was not.

[A] driver owes no duty to a pedestrian unlawfully entering the intersection except to take all reasonable steps to avoid a collision if the driver sees such traffic…

 

(Melgarejo-Gomez v. Sidhu, 2002 BCCA 19 at para. 25).

 

Duty on dominant drivers to take reasonable steps to avoid accidents

Dominant drivers are not immune from liability for causing accidents. However, if a servient drivers wishes to prove that a dominant driver was partly to blame for the accident the servient driver must show that the dominant driver could have, if excercising reasonable care, avoided the accident.

 

In Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) a taxi carrying the plaintiff and proceeding west into an intersection collided with the defendant proceeding north through that intersection. The east-west road was a through street and so the taxi had the right of way. It was argued that the taxi driver was partly at fault for the accident as at the time of the accident he had been looking right to see an expected friend. The majority of the Supreme Court of Canada held that even if the taxi driver had been paying proper attention he could not have avoided the accident and therefore the taxi driver was not liable. Cartwright J., one of the four majority judges who each gave separate reasons, said the following regarding allocating blame to a dominant driver:

 

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

(Walker v. Brownlee, [1952] 2 D.L.R. 450 at 461 per Cartwright J. (S.C.C.)).

 

More recently the British Columbia Court of Appeal confirmed that a duty to avoid collisions is imposed on dominant drivers when the saw, or ought to have seen, that the servient driver was not yielding:

 

Walker v. Brownlee [[1952], 2 D.L.R. 450 (S.C.C.)] does not stand for the proposition that a dominant driver is not required to anticipate breaches by other drivers. Rather, it states that a duty of care to avoid a collision does arise when the dominant driver ought to see that the other driver is not yielding the right-of-way.

(Bedwell v. McGill, 2008 BCCA 6 at para. 26)

 

Dominant road users must react reasonably to apparent dangers

Dominant drivers are not under any obligation to proceed with special precaution just because it is possible that something unexpected might happen, but once a dominant driver actually observes a hazard they are required to react reasonably to it

 

I conclude that the law can be stated as follows:

·         Users of the streets are entitled to proceed upon the assumption that other users will observe traffic regulations;

·         The right to drive or walk on that assumption is not on absolute one;

·         There is no obligation, as one proceeds, to maintain special preparation for an unforeseen emergency or a mere possibility;

·         If, on the other hand, the possibility of the danger which in fact materialized is reasonably apparent, the failure to take precautions is negligence.

(Buksh v. Franco, 1995 CanLII 581 at para. 27 (BCSC) citing Nelson v. Shinski (1991), 62 BCLR (2d) 302 (SC)).

 

In Wong v. West (1959), 30 W.W.R. 526 (BCCA) the British Columbia Court of Appeal described the care required of a dominant driver proceeding on a green light as follows:

 

[The driver] owed no duty to traffic entering the intersection in disobedience to the lights, beyond a duty that, if he in fact saw such traffic, he ought to take all reasonable steps to avoid a collision.

(Wong v. West (1959), 30 W.W.R. 526 at 528 (BCCA)).

 

In Bennett (Guardian of) v. Allan, 1990 CanLII 760 (BCCA) the court considered an accident in which a pedestrian was struck by a motorist, and held that the onus is on the plaintiff to show that the dominant driver could have avoided the accident after he or she ought reasonably to have become aware of the breach by the servient road user:

 

In my opinion, the defendant driver had every right to expect that the 12 year old plaintiff would obey the pedestrian walk signals. He had a right to continue in that expectation until it became evident or ought to have been evident to a reasonable driver in his position that the boy was going to cross the highway in contravention of that signal thereby creating the risk of his being run down.

 

If that situation arose the defendant driver would then be under the duty to avoid a collision if it was reasonably possible to do so. However, the onus is upon the plaintiff to establish on the evidence that at the time the driver of the truck ought to have appreciated that the plaintiff was going to cross the highway against the pedestrian traffic signal the driver could then have reasonably avoided the collision.

 

(Bennett (Guardian of) v. Allan, 1990 CanLII 760 per Wallace J.A. (BCCA)).

 

Servient drivers must anticipate that dominant drivers may make lawful maneuvers

It is generally no excuse for a servient driver to say about a dominant driver: “what he did was a legal but I did not expect him to do it”.

 

In Abma v. Paul, 2008 BCSC 783 the plaintiff was proceeding in the left of two northbound lanes of Clearbrook road. To the plaintiff’s right there was a school. The defendant was exiting the school and planning on turning left to travel south on Clearbrook road. The plaintiff changed lanes at or shortly before the exit from the school. The defendant collided with the rear of the plaintiff’s vehicle. The court held the defendant 100% liable for pulling out into the road when it was not safe to do so. There was conflicting evidence on when the plaintiff changed lanes, but the court found that the plaintiff was entitled to change lanes and that the defendant should not have pulled out into the traffic when cars were approaching:

 

Even if [the plaintiff] changed lanes abruptly, it was [the defendant] who was crossing the line of traffic and who was entering the road from a driveway; in those circumstances she was required to yield the right of way to traffic on the highway. Whether [the plaintiff] changed lanes in front of the driveway or before the driveway, when [the defendant] entered onto the road she did not yield the right of way to [the plaintiff]. While [the plaintiff] was required to execute her lane change with regard to the safety of other vehicles, that did not change the obligation of the driver coming onto the road to yield the right of way to approaching traffic.

(Abma v. Paul, 2008 BCSC 783 at para. 19).

 

In Ferguson v. All-Can Express Ltd. (c.o.b. as Ace Courier Services), 2001 BCCA 57 the plaintiff was proceeding behind a slow-moving semi-trailer truck on a straight piece of highway. The opposing lanes were divided by a single broken line painted on the road. At the time of the accident the painted line was partially covered by snow. The plaintiff pulled into the oncoming lane to pass the truck. The defendant entered the highway from a driveway on the left-hand side of the road and turned towards the plaintiff who was still passing the truck and therefore still in the lane the defendant had pulled into. There was no opportunity for the defendant to avoid the collision. The defendant said he was focusing on looking for cars coming from the left where he considered traffic would likely be approaching from. The court found the defendant 100% liable:

 

[T]he plaintiff was clearly in the position of the dominant driver. The defendant was the servient driver. The plaintiff could only be found to have not used reasonable care if he should have become aware of the defendant’s failure to comply with the obligation cast by law upon him and if the plaintiff had sufficient opportunity to avoid the accident of which a reasonable, careful and skillful driver would have availed himself.

As I see it there was no opportunity for the plaintiff to avoid this accident. As he was engaged in a lawful maneuver I cannot agree with the learned trial judge, with respect, when she found an apportionment of liability should be made against the plaintiff.

(Ferguson v. All-Can Express Ltd. (c.o.b. as Ace Courier Services), 2001 BCCA 57 at para. 23 - 24).

 

In Richards v. Parker, 2003 BCSC 758 the plaintiff was following Ketchen who was traveling west. Ketchen slowed down and began to turn right into a parking lot. The plaintiff pulled left to overtake Ketchen’s turning vehicle. The defendant was exiting the parking lot that Ketchen was turning into and began to make a left turn to travel east. The left turning defendant collided with the overtaking plaintiff. The left turning defendant was found to be 100% liable:

 

In the case at bar, the dominant vehicle was the [plaintiff’s] vehicle and the servient vehicle was the [defendant’s] vehicle. I am satisfied that no negligence can be attributed to [the plaintiff] as I cannot conclude that there was sufficient opportunity for her to avoid the accident by exercising reasonable care and skill.

(Richards v. Parker, 2003 BCSC 758 at para. 23).

 

Even if it could be said that the vehicle driven by [the plaintiff] crossed over the broken line, I am satisfied that the movement she made to pass the Ketchen vehicle was done safely.

(Richards v. Parker, 2003 BCSC 758 at para. 27).

 

The above cases confirm that servient drivers must anticipate and account for dominant drivers making lawful maneuvers and servient drivers may be found 100% liable even if the dominant driver makes an “unexpected” maneuver.

 

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