What is the test to determine contributory negligence in a motor vehicle accident?

British Columbia, Canada


The following excerpt is from Fenster v. Yuen & Sun, 2003 BCPC 33 (CanLII):

In the same case, Mr. Justice Spence provided a test to determine if there was contributory negligence by the dominant driver, citing Walker v. Brownlee, 1952 CanLII 328 (SCC), [1952] 2 D.L.R. 450 (S.C.C.) when he wrote, at paragraph 29: "Hence the duty upon the through traffic only arises under the following circumstances: 1. the entry past the stop sign has been made ...in "disregard of the law", 2. through traffic became aware or should have become aware of the [servient driver's] disregard of the law..., 3. the through traffic had a sufficient opportunity to avoid the accident.... and further, in paragraph 33, that: "... a much greater duty rests on the vehicle making the entry than on the through traffic."

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