Traffic Law
"I consider it negligence for a man driving a motor car to take his eyes off of the road ahead of his car."

These words of Justice Bigelow of Saskatchewan's Court of King's Bench in Kleisigner serve as a basis for what is known as the common law duty of all drivers on the road to maintain a proper lookout at all times failing which, the driver is negligent.

Maintaining a proper lookout is not a term typically found in highway traffic statutes. Instead, it is a requirement developed and imposed by the common law. Where an accident occurs as a result of a driver not keeping a proper lookout, the driver is negligent in tort. In the result, where personal injury or property damage occurs, the driver could be exposed to a significant judgment in damages.

In the 3rd Edition of the Canadian Encyclopedic Digest, the authors summarize the law as follows:

"It is a primary duty of drivers on a highway to keep a reasonable lookout for obstructions or traffic ahead in time to avoid a collision. Whether a driver is excused for failing to see an obstruction in time must be determined on the facts of the particular case. While a driver cannot be excused for failing to keep a proper lookout, it may not be unreasonable to expect a driver to keep a sharper and more vigilant lookout for something he or she may reasonably expect to be on the highway than he or she would for something he or she is entitled to expect would not be there.

"It is the duty of a motorist to do more than watch the road. The motorist must watch for objects approaching from both sides, and if the condition of the road itself or the traffic situation is such that he or she is required to give all his or her attention to the road, it becomes the motorist's duty to slow down to such a rate as will give others ample opportunity of avoiding him or her without his or her being able to do his or her full part in avoiding them when an emergency arises."

Situations where a proper lookout is essential include:

  • Deciding whether to cross an intersection,
  • Approaching a pedestrian crossing,
  • Backing up - reverse;
  • Changing lanes on a highway; and
  • Turning left across the path of approaching traffic.

In Higgins, Justice Disbery of the Saskatchewan Court of Queen's Bench wrote:

" The manoeuvre of turning left across the path of approaching traffic is fraught with peril as many who failed while trying it, and in consequence rest peacefully in the cemetery, could testify were they not beyond the jurisdiction.

"To keep a reasonable and proper lookout when approaching an intersection does not require that a driver look as far as he can see down an intersecting street and note and observe all vehicles approaching thereon no matter how distant. A driver's duty is to look with care and observe whatever vehicles are sufficiently close to the intersection that they might endanger him, or that he might endanger by continuing onward. His vigilance should be concentrated upon such area of the intersecting street adjacent to the intersection, and not dissipated by observing vehicles further away which present no apparent danger to him. He is also entitled to assume that drivers of distant approaching vehicles will use due care and travel at lawful speed."

Similarly, in Swartz Brothers, Justice Duff added:

"The driver approaching an intercommunicating highway is to keep a lookout for drivers approaching upon the right upon that highway and to make way for them. If everybody does this a collision is not only improbable, it is hardly possible. The respondent failed in this plain duty. This neglect of duty was the direct cause of the collision.

"Where there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible." 

The obligation to maintain a proper lookout includes keeping the windshield clean or free of contraptions, so that the driver has, at all times, good visibility for objects in the roadway.

In Nelson, the Court held that a driver had not maintain a proper lookout adding:

"Users of streets are entitled to proceed upon the assumption that other users of the streets will observe traffic regulations. The right to drive or walk on that assumption is not an absolute one. There is no obligation, as one proceeds, to maintain special preparation for an unseen emergency or a mere possibility. If, on the other hand, the possibility of the danger which in fact materialised is reasonably apparent, the failure to take precautions is negligence."

In Corrigan, the driver changed lanes in a traffic circle without looking first, causing a collision. The court:

"... the plaintiff, by failing to keep a proper look-out when he changed his lane, and by driving into the rear side of the defendant's car, is entirely responsible for the accident."

In Dalby v Reece, Justice Oliver of the British Columbia Supreme Court heard of a 2 a.m. motor vehicle accident. At issue was a fatal multiple vehicle accident on a busy international highway. As Dalby approached, his gaze was diverted to one of the vehicles and not realizing that others lay strewn on the highway just before him, by the time he returned his gaze to the road, it was too late and he plowed into the defendant's car. The argument was made that if Dalby had of kept his eyes to the road, the collision could of been averted.

The judge disagreed, not wanting to impose upon drivers superhuman lookout powers:

"The plaintiff was keeping a proper lookout at all material times and that the momentary diversion of his gaze from the road immediately ahead to the scene of an apparent accident was not, in the circumstances, negligent."

REFERENCES:

  • Corrigan v Evans , 13 DLR (3d) 253 (ABCA, 1970)
  • Dalby v Reece, 84 BCLR (2d) 146 (1993)
  • Duhaime, Lloyd, Negligence: An Introduction
  • Duhaime, Lloyd, Traffic Law
  • Higgins v Tilling, 42 WWR 361 (1963)
  • Kleisigner v Diminyatz, [1937] 1 WWR 600 and [1937] 3 WWR 481
  • Nelson v Shinske, 35 MVR (2d) 210 (1991)
  • Portman, E., "Motor Vehicles", being Title 93 of the Canadian Encyclopedic Digest, 3rd Edition (Toronto: Carswell, 2001), §258.
  • Wills v Schwartz, [1935] SCR 628