I Hit a Car Pulling Out of a Driveway – Who Is at Fault?

by Mark Raftus

Car Pulling

Imagine yourself driving down the street to work on a typical day. Suddenly, a car appears in front of you backing out of a driveway. You react, applying your brakes as hard as you can. Unfortunately, the other car is too close for you to stop in time and you hit the rear of it with a huge thump. You are jerked violently forward. You lose awareness of time for a short period. When you come to you feel dizzy and wonder if you sustained a concussion or suffered whiplash. Your chest hurts but you are glad you wore your seatbelt as without it you could have been sent hurtling through the windshield. 

You have just been in a car accident.

Now, put yourself in the position of the other car’s driver. Imagine you just finished placing your two-year-old daughter in the child safety seat in the back of the car. You pass over her favourite teddy bear which makes her smile. You close the door and hop into the driver’s seat. You shoot a glance at the dashboard clock and breathe a sigh of relief because unlike yesterday you are on time to drop your daughter off at the daycare a few blocks away. You glance at the roadway and all seems clear. You put the car in reverse and start backing out. Suddenly, you hear screeching tires and before you realize what is happening, glass shatters and your car gets pushed sideways. When you gather yourself the first thoughts you have are about your little girl in the back seat. You turn around, see her looking at you and notice she is crying a little but otherwise seems fine. 

You have just been in a car accident.

This type of collision is quite common in Nova Scotia and results in claims for compensation routinely by either driver. In order to successfully make a claim for personal injury compensation it is important to understand what legal considerations exist to determine who is at fault for this type of collision.

Who is at fault?

Are you the car pulling out of the driveway?

Generally, a driver backing up onto a public street has a duty of care to look out for traffic on the street and to yield the right of way to it. Nova Scotia’s Motor Vehicle Act states in section 120(1) “The driver of a vehicle shall not back the vehicle unless such movement can be made in safety”. The Act also does not prevent a driver of a vehicle from backing his/her vehicle to the curb for purposes of loading or unloading items provided it is done so in compliance with standard road safety rules.

Many driver safety courses teach that when backing up, you should hold the steering wheel firmly with a hand in the 12 o’clock position so you can perform a safety check scan over both shoulders for other vehicles or people. Vision is key when backing up so make sure you can perform the manoeuvre with clear sight lines for all oncoming vehicles. Many vehicles are now  equipped with rear-view back-up cameras but the fact the car is equipped with this option does not negate the need to also look around the car as you perform the backing up.

If you enter a street without taking proper safety precautions you will likely be at fault for the collision unless the car moving down the street has also engaged in some conduct which violates safety standards. In that circumstance, both vehicles may share in being responsible for the collision and the compensation will be awarded proportionate to the percentage of responsibility each driver bears. It is the duty of the backing up vehicle to give an appropriate warning or signal before entering a roadway. Given the wording of the Motor Vehicle Act section 120 a greater duty is placed on the vehicle backing up to ensure the maneuver can be made safely.

Are you the car driving on the street?

Having the right of way does not, however, imply that in ALL situations, the driver of the car that is already driving on the street is exempt from all fault. The Motor Vehicle Act in section 100(1) states “Every person driving or operating a motor vehicle on a highway or any place ordinarily accessible to the public shall drive or operate the same in a careful and prudent manner having regard to all the circumstances”.

The Nova Scotia Driver’s Handbook states that users of the road have a duty to choose a safe speed to drive despite posted speed limits. They must drive in a manner that will not endanger the life, limb, or property of others. 

To do so a driver must consider all of the circumstances present including following posted speed limits, the overall visibility [crest of a hill, bushes, trees etc, weather conditions existing such as fog, the level of traffic and whether the roadway is slippery due to ice, oil etc. Using common sense, the faster the car is moving, the farther ahead the driver must be able to see to allow enough distance for stopping when a hazard presents itself.

Should the driver of the car already on the roadway be deemed to have failed to heed the presence of a hazardous circumstance and adjust his speed accordingly some fault for the collision may be apportioned to him and the compensation entitlement adjusted on a percentage of fault basis. 

An example would be if you were driving above the speed limit in a residential neighborhood at a curve in the roadway and you collided with a car backing out of a driveway whose driver stated he had looked both ways before backing out and all seemed clear.

Nova Scotia’s Contributory Negligence Act – 0% to 100% fault

When assessing claims for compensation in personal injury claims – including but not being limited to car accidents – courts in Nova Scotia have legislation governing how to determine the degree of fault each side bears. The name of the legislation is the Contributory Negligence Act

The Act states in section 3(1) “Whereby the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be proportioned equally”.

The wording of this section provides a lot of latitude with the court to assess the facts of each case when determining which percentage split to apply (if any). If the court can’t come up with a firm division the claim will be split 50/50. A phrase seen in many of these types of cases is the court assessing the “comparative blameworthiness” of the parties. Also, a healthy dose of common sense is apparent in the decision-wording.

Seek Legal Help

If you or a loved one have been injured in an automobile accident involving a rear backing vehicle McKiggan Hebert is here to help. Their personal injury lawyers represent both automobile and truck accident victims to ensure they receive the compensation they deserve. 
Contact McKiggan Hebert today at (888) 510-3577 or by filling out a contact form. You have nothing to lose and everything to gain if you have been injured.

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