Right of way is a general term used to identify whether a road user must yield to another in a given situation. But there’s a subtle and critical distinction that’s worth discussing. The phrase “right of way” appears in BC’s current Motor Vehicle Act  thirty-three times. Twenty-four occur in text that defines the responsibilities of a driver and is always in the form “… must yield the right of way to…” This is a key point: a driver doesn’t have the right of way until another driver or road user gives it to them.
This distinction is lost on many drivers who believe that in certain situations, they automatically have the right of way, and this perceived ‘ownership’ is often used as an excuse to behave poorly. Having the right of way means you're right and the other guy is wrong. For example, I’m sure you’ve watched a driver not safely yield to a pedestrian crossing a street outside a crosswalk (or maybe you’ve done this yourself). They honk, yell, drive too close; basically they drive dangerously by reasoning, “They’re not in a crosswalk, I have the right of way!” No, you don’t. You only have the right of way if that pedestrian yields it to you. They are supposed to yield it to you, but you don’t have it until they do.
Drivers who behave like this show the irony inherent in the black-and-white manner in which right of way is implemented in law: if there is a collision, the person who is found to have had the right of way probably won’t be ticketed or charged. That’s right — depending on the circumstances, you can injure or kill someone with your car and get off scot-free if you can prove that the other driver broke the rules and you didn’t. Right of way can be and is used as an excuse to behave badly (the legal term is “shield”). Defensive drivers don’t behave this way; they are constantly trying to reduce the chances of a collision and are not hung up on who’s right or wrong.
So, even with these well-defined right-of-way rules (and others), BC has an absurdly high number of collisions every year, resulting in high insurance and injury rates.
Maybe there’s a better way…?
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The maritime world has its own Rules of the Road — they’re called the International Regulations for Preventing Collisions at Sea  (COLREGs). But the COLREGs don’t use the term “right of way,” because vessel operators don’t have rights, they have responsibilities.
The COLREGs are a set of numbered rules that define everything from the proper colors for navigation lights to which vessel must yield to another in a given situation. The latter, called the “steering and sailing” rules, cover cases where vessels’ intended courses might intersect, and designates each vessel either as the “stand-on” vessel or the “give-way” vessel. The operator of the give-way vessel must yield to the stand-on vessel by slowing down, changing course, etc.
But the COLREGs also have a special rule:
Rule 2 - Responsibility
(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.
Rule 2 is known as the ‘General Prudential Rule’ — a vessel operator must follow all the rules, but is also allowed to, and required to, do whatever is prudent (and possible) to avoid a collision or minimize damage and injury. Rule 2 means that for a given situation, the stand-on vessel does not have an absolute right-of-way over the give-way vessel — the operators of both vessels must do whatever is possible to avoid a collision, even if it means breaking one of the other rules.
In some situations, such as when two vessels are approaching each other head-on, both vessels are considered give-way vessels, and both must alter course. Rule 2 recognizes that the steering and sailing rules don’t cover all possible scenarios, so the onus is placed on the vessel operators to do whatever is possible to avoid a collision. If the vessel you are operating is involved in a collision, the fact that you were the stand-on vessel might not get you off the hook — investigators will ultimately assign responsibility based on whether you did everything reasonably possible to avoid the collision.
Rule 2 makes defensive driving — okay, defensive boating — mandatory. It’s one of the first things taught in basic boating courses. Rule 2 means that even if the other boat operator screws up, you still have to do your best to avoid a collision. Put another way, if you get into a collision, you’re basically guilty until proven innocent. That’s why we don’t see the same level of carnage on the high seas as we do on our roads.
Unfortunately, defensive driving is not mandatory. Highly recommended, but not mandatory. So it makes me wonder: how much safer would our roads be — how many fewer people would get injured or killed every year — if there was an equivalent to Rule 2 for drivers? What if defensive driving was mandatory? Let’s explore that…
Everyone — drivers, pedestrians, cyclists — would be obligated to do whatever was reasonably possible to avoid a collision. If you got into one, you would automatically get a ticket and/or an increase in your car insurance. If you felt that there was nothing you could have done to avoid the collision, you’d have to go before a judge and convince them. Offering the excuse “But I had the right of way!” wouldn’t help you. You’d need to convince the judge you did everything reasonably possible to avoid the collision.
Initially, this would cause a lot of confusion and probably clog the courts. But if it were rolled out with a long lead time and a comprehensive public education program, imagine what would happen. Drivers would have to be trained to drive defensively. They’d each have to acknowledge that they are not the most important person on the road. They’d have to learn to cooperate with others using the road system rather than compete with them. There would be a lot less of “I’m in the right here, and the other guy is in the wrong, so let’s see how this plays out.” Drivers would behave better. And there would be a lot fewer collisions, injuries, and deaths.
With ICBC’s financial state being referred to as a “dumpster fire” , I think the time is right for BC to start discussing the implementation of a General Prudential Rule for the Motor Vehicle Act.
The above is an adaptation of a chapter from my book “Letters to a Driving Nation: Exploring the Conflict between Drivers and Cyclists.