ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for December, 2012

Defendant Ordered to Pay 25% Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

December 31st, 2012

Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants.  Failure to attend can have a variety of consequences.  Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.

In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000.  Prior to trial the Defendant failed to appear at an examination for discovery.  Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been.  In reaching this decision the Court provided the following reasons:

[6]             Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.

[7]             I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…

[10]         I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.

[11]         Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

[12]         Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.

[13]         In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.

 


Plaintiff Awarded Partial Costs Despite Having Claim Dismissed at Trial

December 28th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.

In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot.   Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident.  After factoring this split in the Plaintiff’s assessed damages came to  $28,305.  Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.

Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:

[20] In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.

Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’.  The Court needed to consider what costs consequences ought to flow in these circumstances.  In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:

[21] The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.

[22] The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..

[28] Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.

[29] The next issue is whether the payment of the Part 7 benefits should affect the award of costs…

[43] This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.

[44] Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…

[45] What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…

[62] Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.

[63] Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.

 


Miscarriage Reference Results in Jury Discharge

December 27th, 2012

Adding to this site’s archives of judicial commentary on the boundaries of opening statements, reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, finding that comments addressing the Plaintiff by his first name and further discussing his wife’s miscarriage crossed the line.

In the recent case (Demello v. Chaput) the  Plaintiff was involved in a series of collisions.  During his opening statement he was referred to by his first name and further a miscarriage his wife had was referenced with the following statement being made:

His wife is pregnant during this period of time. She’d like a little bit more support. He’s not able to give that to her. In July, Michael was supposed to do a number of things in anticipation of having some friends over, July of 2012, and at that point his wife was pregnant with her third child. He didn’t get around to doing it. Out of frustration, she did it herself. She did all the work he was supposed to do that day in addition to getting the house ready for a party that they were having. They were having some friends over. She started bleeding and two weeks later she has a miscarriage. Now, whether or not or what caused the miscarriage is not the point here. The point is that she blamed Michael for that, so you can see that’s an obvious point of tension.

Madam Justice Maisonville found these comments crossed the line and discharged the jury.  In doing so the Court provided the following reasons:

[30] I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage. To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.

[31] I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials. I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury. As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.

[32] The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged. While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so. I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.

[33] In all of the circumstances, I order that the jury in this matter be discharged.

[34] I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone. In the circumstances, I am going to order that the matter carry on as a judge alone trial.


Agony of Collision Doctrine Shields Driver From Fault Following Head on Crash

December 24th, 2012

Update November 28, 2013 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today

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I have previously discussed the ‘agony of collision’ doctrine which can shield a motorist from liability following a collision if they are faced with a sudden and unexpected hazard not of their making.  Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, demonstrating this doctrine in action.

In last week’s case (Brook v. Tod Estate) the Defendant Goodrick changed lanes when it was unsafe to do so.   Her lane change resulted in a potential collision with a vehicle driven by the Defendant Tod who swerved away into the oncoming lane of traffic.  The decision proved fatal with his vehicle striking the on-coming Plaintiff’s vehicle in a head-on collision.  The Defendant Tod died in the crash and the Plaintiff sustained injuries.

The Plaintiff sued both Defendants.  The Court found the Defendant Goodrick was negligent in making an unsafe lane change.  The Defendant Tod, however, was found faultless for the “agonizing choice made…in the last two or three seconds of his life as he attempted to avoid an accident“.  Mr. Justice Affleck provided the following reasons addressing ‘agony of collision':

[26]         Mr. Tod’s counsel  stresses the law in relation to the agony of collision which would exonerate Mr. Tod of mistakes which he made in an emergency situation. In Van Zanten v. Bruhs, 1991 CanLII 1023 (BCSC), Mr. Justice A.G. Mackinnon referred to Carswell’s Manual of Motor Vehicle Law, Volume III, 3rd edition, at page 22, where there is a discussion of agony of collision. These words are found:

In a number of cases concerning what is commonly called ‘agony of the collision,’ it has been pointed out that a driver acting in an emergency created by another vehicle or by some extraneous fact cannot be expected to exercise nice judgment and prompt decision, and mere errors of judgment in such circumstances may often be excusable … Where an emergency arises, it is not necessary for a driver to possess extraordinary skill, presence of mind, poise or self-control, and his failure to act as an ordinary person in an emergency is not held to be negligence. He is not necessarily required to adopt the most prudent course and is entitled to a reasonable time, depending on the circumstances, to exercise his judgment as to what steps should be taken to avoid a collision [citations ommitted.]

[27]         Counsel has submitted that it was Mr. Brook who faced the agony of collision and yet his evasive efforts, although fruitless, have not been characterized as negligence. On the other hand it is argued Mr. Tod had choices available to him and his circumstances cannot be properly characterized as the agony of collision. Notwithstanding the able arguments of Ms. Goodrick’s counsel, I do not agree that Mr. Tod did not face an agonizing choice with no time to make a considered decision. I have found Ms. Goodrick’s vehicle intruded into the fast lane already occupied by Mr. Tod’s vehicle. She began her lane change and simultaneously saw Mr. Tod’s vehicle overlapping hers by several feet. It was not realistic to expect Mr. Tod to make an instantaneous decision to accept a collision, no matter how minor it might in retrospect have been, with Ms. Goodrick’s vehicle. In the negligible time available to Mr. Tod, he cannot have been expected to weigh that fine calculation. It is true he could have braked. One difficulty with that proposition is that it cannot be now known if he both braked and swerved. What we do know from the evidence of Mr. Leggett is that Mr. Tod was travelling at a safe speed. He did not create the danger that caused him to react in the agony of the moment. If there had been a collision between his car and Ms. Goodrick’s car, we cannot know if one or both of those cars would have lost control leading to this accident.

[28]         Mr. Garner for the plaintiff submits Mr. Tod had a higher standard of care imposed on him because Ms. Goodrick’s car had an “N” plate on the back indicating she was a novice driver. I doubt if the presence of that letter on a car changes the standard of care of other drivers, but in any event, Mr. Tod was driving with reasonable care before he was cut off by Ms. Goodrick’s failure to see his car before beginning her lane change. It is not open to this Court to criticize the agonizing choice made by Mr. Tod in the last two or three seconds of his life as he attempted to avoid an accident which I find was caused solely by the negligence of the defendant, Ms. Goodrick.

 


"Fat Bottomed Girls" and "Kangaroo Court" Comments Strip Successful litigant of Costs

December 21st, 2012

Update – July 22, 2013the below action was overturned on appeal with the Defendant being ordered to pay general damages, punitive damages and special costs due to his “misconduct during the trial

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Earlier this year I highlighted a judgement addressing whether a litigant blogging about witnesses during the course of a trial, and referenceing ‘fat bottomed girls’ in the process, amounted to witness intimidation.

Reasons for judgement were released today (Mainstream Canada v. Staniford) by the BC Supreme Court, Vancouver Registry, dealing with the costs consequences following the underlying trial.

Ultimately the Plaintiff’s defamation claim against the Defendant was dismissed.  The Defendant would ordinarily be awarded his costs and disbursements under the BC Supreme Court’s ‘loser pays’ system.   Madam Justice Adair refused to follow this ordinary course, however, finding that the Defendant’s conduct during the trial was ‘deserving of rebuke‘ and ultimately stripped him of 75% of the costs he otherwise would be entitled to.  In doing so the Court provided the following reasons:

 [5]             The general rule is stated in Rule 14-1(9) of the Supreme Court Civil Rules:  “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.”  Thus, Rule 14-1(9) continues to confirm the residual discretion of the court to deny, on a principled basis, a successful party the costs to which it would otherwise be entitled:  see LeClair v. Mibrella Inc., 2011 BCSC 533 (“LeClair”), at para. 9.  Where the successful party has engaged in misconduct, the outcome of the litigation is irrelevant, and the court has the power to deprive the successful party of costs…

8]             The discretion conveyed to a judge under Rule 14-1(9) is extremely broad:  see LeClair, at para. 30…

[12]         I described some of Mr. Staniford’s conduct in my Reasons for Judgment as follows, at paras. 88-92:

[88]      . . . During the trial, Mr. Staniford relaunched the GAAIA website, this time using a service provider outside of Canada.  During his cross-examination, Mr. Staniford proclaimed that he would not be stopped by an injunction pronounced in this action.

[89]      Shortly before the trial, and after the witness lists had been exchanged, Mr. Staniford accused the Ahousaht First Nation of accepting “blood money” from Cermaq in one of his Facebook postings. 

[90]      Mr. Staniford looked on the trial as an opportunity to get his message out, and he did not hold back.  For example, in Internet postings during the trial, Mr. Staniford demeaned and mocked the physical appearance of three of Mainstream’s witnesses, Mary Ellen Walling, Leanne Brunt and Dr. Gallo.  Mr. Wotherspoon brought the comments concerning Ms. Walling and Ms. Brunt to my attention when court was convened the morning of January 26, 2012.  The matter was discussed in court and was framed (appropriately) as an issue of Mr. Staniford victimizing Mainstream’s witnesses by his insulting comments.  Mr. Staniford was present during the discussion.  Despite that, Mr. Staniford then repeated his comments about Ms. Walling and Ms. Brunt outside court for an interview that was published on YouTube.

[91]      During his testimony, Mr. Staniford attempted to justify his comments about Ms. Walling and Ms. Brunt as being “very complimentary,” and said he thought Ms. Walling should be “flattered” at being labelled a “fat-bottomed girl.”  The notion that Mr. Staniford would ever pay a sincere compliment to Ms. Walling is, itself, laughable and entirely unbelievable. 

[92]      In another Facebook posting during the first week of the trial, he compared the trial to a kangaroo court….

[15]         By engaging in the conduct I described, Mr. Staniford demonstrated his disrespect for witnesses and his disdain generally for the court and the judicial process. 

[16]         Mr. Staniford’s flagrant disregard of my comments during the discussion on January 26, 2012 concerning his victimization of witnesses and in my ruling (indexed at 2012 BCSC 1609) is particularly troubling.  His YouTube interview shortly after my ruling is roughly equivalent to giving the court “the finger,” as he did to Mainstream and its lawyers in response to their demand letter.  Mr. Staniford’s attitude (as expressed during his cross-examination) seemed to be that since Lord Denning’s comments (which I adopted) had been made in the early 1960s, they did not apply to him and he could ignore them.  Once again, Mr. Staniford demonstrated that he is a bad listener.  His repetition in court, and under oath, of his ridiculous justification for his sexist and puerile comments about Ms. Walling and Ms. Brunt – that the comments were complimentary and flattering – insulted the intelligence of anyone who had to listen to it. …

[20]         Although I consider Mr. Staniford’s misconduct in connection with the trial to be serious and clearly deserving of censure, I think that depriving the defendants of all of their costs of the action is too severe, given the dollar amounts likely involved for a 20-day trial.  I have concluded that an appropriate order is that the defendants have 25% of their assessed costs and disbursements.  (There should be only one set of costs for both defendants.)  Depriving the defendants of 75% of their assessed costs and disbursements, in my view, reflects appropriate condemnation of Mr. Staniford’s misconduct.


Welcome Lawyers Weekly Readers

December 20th, 2012

Earlier this year I had the pleasure of being interviewed by Donalee Moutlon who authored an article for the Lawyers Weekly addressing obligations of motorists involved in hit and run collisions in BC.  Her article was published in this week’s edition.

For those of you visiting this site after reading this article, welcome!  If you are looking for more on the topic of motorist obligations advancing hit and run injury claims in BC you can click here to access my archived posts.


Concussions 101

December 20th, 2012

 

If you are looking for a quick introduction to concussive injuries (or if you need a great aid for explaining concussions to others), this video by Dr. Mike Evans is about as good as it gets.  I first found this while searching the Sport Concussion Library, a great free resource for parents, athletes, coaches and anyone else interested in concussions in sports.


Jury Strike Application Succeeds in Complex Personal Injury Case

December 20th, 2012

Earlier this month I highlighted two decisions addressing whether injury trials with numerous expert witnesses were too complex for a jury to hear.  The first case dismissed the jury notice and the second case upheld the notice.

This week a futher judgement was released addressing this topic finding a case with 475 pages of expert evidence was too complex for a jury.

In this week’s case (Moll v. Parmar) both the Plaintiff and Defendant filed a jury notice.   At the trial management conference the Defendant indicated that a jury trial was still anticipated.   As trial neared, however, the Defendant changed their view and brought an application to strike the Plaintiff’s jury notice.  Mr. Justice Abrioux found that the case was too complex for a jury and in so doing provided the following reasons:

[43]         What militates against the action proceeding before a jury is the sheer volume of medical reports, and in many instances, the scientific aspect of the evidence. I have reviewed many of the medical and other experts’ reports which were provided to me in October 2012. As I noted above, they comprise approximately 475 pages. The reports refer to other reports and assessments. The neuropsychological reports deal with many different tests, as do the vocational and functional capacity evaluations.

[44]         I  emphasize that what is in the record before me are experts’ reports, that is, evidence which, depending on admissibility issues, will be before the trier of fact. In that regard they are to be distinguished from, as I have noted, hospital and other records which may well have much less significance or importance to the trier of fact.

[45]         In my view, there can be little doubt that the issues in this case will require a prolonged examination of documents or accounts or a scientific or local investigation. The plaintiff presents two alternative theories, the first being whether the accident caused an organic brain injury, which is scientifically complex. The reports of the neuroradiologist attest to this…

[51]         I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii) have been met. First this case does involve a scientific investigation which will include a prolonged examination of documents, in particular experts’ reports, that cannot conveniently be heard by a jury. Secondly, the issues are sufficiently intricate and complex that the trial should not proceed with a jury. Justice would not be done if that were to take place. Accordingly, I direct that the trial be heard by the trial judge without a jury.


Medical Advisor Opinion a Prerequisite For Post Trial Discretionary Benefit Deduction

December 19th, 2012

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.

Two sets of reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.

In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries.  ICBC sought to deduct mandatory and discretionary Part 7 benefits from this amount.  In discussing the burden required for these deductions and in denying the application Mr. Justice Smith provided the following reasons:

3]         The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: “I expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses”.

[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.

[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life…

[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.

[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.

In the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial.  ICBC sought to deduct some $16,000 in Part  7 items.  In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:

[24]         In her affidavit, the adjuster says that such a fitness program is “similar to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to “physical therapy”, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be “similar” to the named therapies.

[25]         Having regard to the requirement for strict compliance with the Act and its Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from “the corporation’s medical advisor” is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.

 


Bus Driver Negligent For Injuries Caused in "No-Impact" Incident

December 18th, 2012

As highlighted earlier this year, a motorist can be found negligent for injuries caused to a passenger even in the absence of a collision.  If a motorist makes an abrupt movement causing injuries to occupants liability can follow if the abrupt movement falls below the expected standard of care.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an incident.

In last week’s case (Erickson v. Sibble) the Plaintiff was riding as a passenger in the Defendant’s bus.  As he approached an intersection he brought his vehicle to an abrupt stop to avoid running a red light.  The sudden breaking caused injuries to the Plaintiff.  In finding the bus driver negligent and liable for the injuries sustained in this ‘no-impact’ incident Madam Justice Ballance provided the following reasons:

[62]         I have found that Mr. Sibble made the following oral and written statements:

·       he apologized to Ms. Erickson and Ms. da Silva for the manner of the stop and declared that he did not want to get a “red light” ticket;

·       he told Ms. Erickson that he had applied the “emergency brake”, by which he was referring to the maxi-break, at the time of the stop;

·       the statements that Mr. Pearson captured in his incident report and those that Mr. Pearson testified about, as detailed above; and

·       that he had stopped “a little harder than normal”, as recorded in his incident report.

[63]         Mr. Sibble’s statements constitute admissions and are admissible against him, either as admissions against interest or as an exception to the hearsay rule:  R. v. Evans, [1993] 3 S.C.R. 653; R. v. Foreman (2002), 169 C.C.C. (3rd) 489 (Ont. C.A.); R. v. Mapara, 2005 SCC 23.  If admitted on the latter basis, I find that the requisite features of reliability and necessity are present.  Under either doctrine, his admissions are admitted for their truth.

[64]         I am satisfied that from the outset of Ms. Erickson’s journey, Mr. Sibble’s driving pattern was erratic, by which I mean that he engaged in a pattern of acceleration and braking that caused the bus to lurch and jerk as it travelled along.

[65]         The evidence establishes that the bus was moving at not less than 40 kilometres per hour on its approach to the Intersection, and when Mr. Sibble was a distance of ten or, at most, fifteen metres from it, he became aware that the light was amber.  The evidence supports the inference that when he noticed the amber light, he could not be sure how long it had been that colour, and was therefore concerned that he was approaching the Intersection on a stale amber that was about to turn red.  Mr. Sibble was concerned about whether he had enough time to stop safely or sufficient time to proceed through.  He anticipated that were he to opt for the latter, the light could change to red and he might get a “red light” ticket.  By the time Mr. Sibble elected to stop, the bus was even closer to the Intersection than when he had first noticed the amber light.

[66]         I accept that, at first Mr. Sibble braked “softly”.  However, it became readily apparent to him that despite his braking efforts, the front of the bus was moving over the crosswalk and trespassing into the Intersection.  The probabilities of the situation show that in recognizing this unwelcome state of affairs, Mr. Sibble applied the brakes suddenly and with much greater force, equivalent to slamming hard on the brakes, to prevent the bus from ingressing further into the Intersection.  I think it is more likely than not that he also drew on the maxi-brake in a misguided attempt to fortify the conventional braking.

[67]         Mr. Sibble’s sudden and vigorous braking caused the bus to come to an abnormally abrupt and jarring stop.  The stop was not in the nature of a movement that would fall within the normal range reasonably expected by the transit travelling public, as was the case for example in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.).  There was no reason, such as a pedestrian stepping out in front of the bus or a vehicle unexpectedly appearing or threatening to appear in Mr. Sibble’s oath, so as to justify stepping on the brakes with such sudden and excessive force.  Even by jamming on the brakes, Mr. Sibble was not able to stop the bus until approximately one-third of its length had intruded into the Intersection.

[68]         I find that Mr. Sibble glanced into his interior mirror as soon as he had made the stop to ensure that his passengers were safe precisely because he knew that the stop had been abnormally abrupt.  It is not clear why at that time he did not see evidence of Ms. Erickson’s mishap.

[69]         The evidence supports a finding that had Mr. Sibble been maintaining a proper lookout and exercising due care and attention as he advanced on this major intersection, he would not have been “caught short” in the sense of not having sufficient time to safely stop or proceed through safely before the light turned red.  The evidence as a whole supports the conclusion that he failed to exercise the due care and attention and otherwise conduct himself in a manner reasonably expected of a prudent bus operator in all of the circumstances.  Stated another way, I find that the Accident would not have occurred just the same had Mr. Sibble acted in accordance with his standard of care in discharge of the high duty that he owed to Ms. Erickson.