Judging by the comments of readers, this headline and story in the Vancouver Sun struck a cord with angry drivers...or more accurately angry people who comment on such stories. See the article here:
The accident occurred just outside of the convergence of three school zones, in an area where there is frequent jaywalking by students. The trial judge found that the driver was negligent for not expecting that a pedestrian may be present, even though the pedestrian, a 16 year old boy, was not in a cross walk.
The judge outlined the negligence of both the driver and the pedestrian and split liability 60% against the pedestrian and 40% against the driver. This means that the pedestrian will only receive 40% of the cost of medical care and other damages. The rest of the costs will be born by the family.
The trial judge described the accident, some of which is below:
Once in the southbound lane, she proceeded to a point just beyond where the road expands to include a right turn lane. She then moved into that lane. It was empty; there were no cars in it between her and the Leathead intersection. Both the through lane and the left turn lane were full of vehicles, and those vehicles were stopped.
As Ms. Plummer proceeded along the right turn lane, she noticed a large tractor-trailer truck to her left. It was stopped in the line of through traffic. As a result, her view of the left turn lane and the through lane in front of the truck was entirely obscured.
Neither the trial judge nor the Court of Appeal makes reference to s.158 of the Motor Vehicle Act which reads:
158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except
(a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,
(b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or
(c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.
(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right
(a) when the movement cannot be made safely, or
(b) by driving the vehicle off the roadway.
The motorcyclist entered the right turn lane lawfully and was lawfully allowed to overtake the large tractor trailer on the right, if it was safe to do so. This imparts a duty on the driver to take steps to ensure that it is safe to pass on the right for the exact reasons that this accident occurred.
This section of the Motor Vehicle Act is seldom relied upon by lawyers in cases like this and I do not understand why. It codified the reason why the motorcyclist in this case should have been more careful. Had the lawyer told the trial judge about this section and the trial judge relied upon it, then the entire analysis about when to expect a jaywalking pedestrian would have been unnecessary.
In my view, this case does not expand the law in any way. Drivers and pedestrians have to each be careful on the roadway and neither can just barrel along without regard for the other.
You can read the actual Court of Appeal decision here:
and trial decision here:
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