I passed cars on their right side, and was hit by an oncoming left-turning car – who is at fault?

  • The straight-through driver has the right-of-way, and the left-turner must yield
  • However, the straight-through driver can only pass on the right if it is safe to do so
  • Liability may be shared as each driver must take due care to assess the situation

In Nerval v. Khehra, Nerval was trying to turn left.  Her view was blocked by a van on the other side of the intersection, also turning left.  She made her left turn and was hit by Khehra, who was passing the van on the right.  Khehra did not have her own lane, but there was plenty of room for two cars to pass.  Khehra was speeding, going considerably faster than the speed limit of 50 km/h, but less than 80 km/h.

The Court of Appeal approved the trial decision that Nerval was 60% at fault and Khehra was 40% at fault.  The court said that the left-turner must yield to the straight-through driver.  A left turn must not be started unless it is clearly safe to do so.  It is only safe when there is no oncoming traffic that is an immediate hazard.  Nerval turned when it was not safe to do so, and she was at fault.  However, Khehra was also at fault.  She had the right to pass the van on the right, but only if she could do so safely.  Her view of the intersection was limited by the van, so she should have taken extra care while swerving around it as she should have considered that there might be left turning cars present.  By speeding though the intersection she failed to live up to her duty.

In Smeltzer v. Merrison, Smeltzer was southbound on the road, trying to turn left ,id-block into a parkade.  A truck stopped and motioned to her to make her left turn, so she did.  Merrison was northbound, a couple of vehicles behind the truck.  She intended to turn right at the intersection ahead, using a marked right-turn lane.  Merrison pulled out to the right and passed the other cars, hitting Smeltzer when Smeltzer appeared from in front of the truck.

Merrison’s lane was wide enough that two cars could easily drive side by side.  Despite this, the city had only painted lane dividing marks on the last 95 feet of roadway before the intersection.  The collision occurred 35 feet short of where the line began.

The Court of Appeal held that both were equally at fault.  A car is only allowed to pass on the right if the overtaken vehicle is turning left, when passing on a laned roadway or when passing on a one-way street, if room permits.  Since the road did not have lane markings in that area, Merrison did not have the right to pass the other vehicles.  She should have realized that this was dangerous.  She failed to proceed cautiously, keeping a proper lookout.

Smeltzer was also at fault.  She was turning left in mid block, over a solid yellow line.  She had a duty not to turn unless it was safe to do so.  She should have considered the width of the road, with the right-turn lane beginning immediately to her left, and the limitation on what she could see beyond the truck.  She should have inched out past the truck until she could see that no car was coming.

If you do not agree with ICBC’s assessment of liability in your collision, contact us.  We can help.

Read the cases:  Nerval v. Khehra

                            Smeltzer v. Merrison

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