What is the burden of proof for a driver in the servient position in a motor vehicle collision?

British Columbia, Canada


The following excerpt is from Neufeld v. McCrae, 2008 BCSC 539 (CanLII):

Where a dominant driver poses an immediate hazard, the burden of proof on the servient driver to cast a portion of the blame on the dominant driver is significant. In the words of Cartwright J. in Walker v. Brownlee 1952 CanLII 328 (SCC), [1952] 2 D.L.R. 450 (SCC): 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.

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