CASE COMMENT: Salaam v. Abramovic BC Ct of Appeal May 3, 2010 - by Corey D Steinberg

Normally, a driver is entitled to presume that other drivers will obey the law, and govern their conduct accordingly. Today's judgment in Salaam v. Abramovic, however, indicates there are exceptions. This was a case of "contributory negligence", and underlines the tenet that "insisting" on right of way when it seems unreasonable to do so, could attract liability for personal injury in the event of a collision. It is important to remember that being 75% correct, can still make you 25% wrong - with liability, pro rata.

This is also an important case for people injured in motor vehicle accidents, who may believe they were "in the wrong" at the time of collision, as the law is not always black and white.

A three-judge panel of the BC Court of Appeal found today:

[8] The defendant’s evidence was that the plaintiff’s vehicle continued to move into the intersection at a slow and uneven speed, but without ever coming to a complete stop. As the defendant neared the intersection, the plaintiff’s vehicle “jolted” forward, crossing into his path. He began to brake, tried to gear down, and honked. The plaintiff brought her vehicle to a complete stop directly in front of the defendant’s vehicle. The defendant was unable to avoid a collision; his car slid into the plaintiff’s vehicle, hitting it on the driver’s door.

[11] While there were a number of differences in their approaches, the most important difference lay in their assessment of when the defendant ought to have realized that the plaintiff’s vehicle was a hazard.

...

[21] In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

The Duties of the Dominant Driver

[22] The trial judge’s analysis focussed on the plaintiff’s negligence:

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] … [I]t was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.
…

[36] It is evident that the plaintiff’s responsibility for the accident was much greater than the defendant’s. She entered the intersection without stopping, when she could not safely proceed to make a left-hand turn. She evidently did not see the defendant’s vehicle, though it was, at all material times, there to be seen by her. Further, the evidence established that at the moment that her car suddenly accelerated into the defendant’s path, she was looking to her right, away from oncoming traffic in the lane that she was entering.

[37] The defendant’s negligence consists of his aggressive lane change and his insistence on right of way in a situation when it must have been obvious to him that there was a strong likelihood that the plaintiff would continue to proceed erratically across Scott Road.

[38] I would find the plaintiff 75% at fault and the defendant 25% at fault.

[39] In the result, I would allow the appeal, set aside the dismissal of the action, and, instead, find the defendant to be liable for the accident, subject to the plaintiff’s 75% contributory negligence.

“The Honourable Mr. Justice Groberman”

I agree:
“The Honourable Mr. Justice Donald”

I agree:
“The Honourable Madam Justice Garson”