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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

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Archive for October, 2017

Punitive Damages Awarded Against Suspended Driver Involved in Hit and Run Collision

October 16th, 2017

In a rare case awarding punitive damages in a motor vehicle collision case reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, making such an award.

In the recent case (Howell v. Machi) the Plaintiff pedestrian was struck by a motorist who fled the scene of the collision.  The Plaintiff was jaywalking at the time and found partly at fault for the crash.  The Defendant was identified.  He had a suspended licence at the time of the collision.  In finding these circumstances warranted an award of punitive damages Madam Justice MacNaughton provided the following reasons:

[517]     Ms. Howell was unable to refer me to any case in which punitive damages had been awarded in a motor vehicle accident case involving a hit-and-run. However, in Legualt v. Tiapis, 2015 BCSC 517, Master Harper dismissed an application to strike a claim for punitive damages against a breached defendant for leaving the scene of an accident on the basis that she could not conclude that the punitive damages claim would prejudice or embarrass the fair trial of the proceeding. As that case did not proceed to trial, there is no authority for whether punitive damages are appropriate in a hit-and-run situation.

[518]     Punitive damages have been awarded against defendants who have shown reprehensible conduct in causing motor vehicle accidents. For example, punitive damages have been awarded in the following cases relied on by Ms. Howell:

·       In McIntyre v. Grigg, 83 O.R. (3d) 161 the Ontario Court of Appeal reduced a jury’s $100,000 punitive damage award to $20,000 against a defendant driver whose blood alcohol level, at the time of the accident, was two to three times over the legal limit;

·       In McDonald v. Wilson, [1991] B.C.J. No. 3137, Justice Hood awarded $5,000 in punitive damages and $1,000 in aggravated damages against a defendant driver who intentionally tried to strike the plaintiff. Similarly, in Stevenson v. Vance, [1988] N.S.J. No. 384, $2,500 in punitive damages was awarded against a defendant who intentionally ran over the plaintiff’s legs after stealing from a store in which the plaintiff worked as a security guard; and

·       In Herman v. Graves, 1998 ABQB 471, a plaintiff was awarded $3,500 in punitive damages arising from a road rage incident and, more recently, in McCaffery v. Arguello, 2017 BCSC 1460, I awarded $30,000 in punitive damages arising from a road rage incident.

[519]     I have concluded that Mr. Machi’s actions are worthy of denunciation and retribution beyond the compensatory awards I have made in favour of Ms. Howell. In particular, although I concluded that his failure to stop after striking Ms. Howell did not amount to further negligence on his part, it is relevant to the punitive damages analysis. I have also taken into account the fact Mr. Machi has repeatedly shown complete disregard for the suspensions of his driver’s licence.

[520]     In all the circumstances, I award Ms. Howell punitive damages of $100,000 against Mr. Machi.


BC Supreme Court – Suggesting Driver At Fault for Collision Based on Past Convictions is “Frivolous”

October 2nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, describing the suggestion of deciding fault for a collision based in part on a motorist’s past driving convictions as ‘frivolous’.

In today’s case (Rezai v. Uddin) the Plaintiff was a pedestrian involved in a collision with the Defendant.  Fault was disputed.  Prior to trial the Plaintiff sought to amend her pleadings to allege “The Defendant Driver had on several previous occasions driven in a manner that put pedestrians and motorists at risk of injury” based on

a.   on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;

b.   on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;

c.   on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;

d.   on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;

e.   on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.

The court rejected this request noting that past convictions likely do not constitute similar fact evidence.  In dismissing the application Master Wilson provided the following reasons:

[22]         The parties agree that there is no British Columbia authority on the issue of whether a pleading alleging similar fact evidence in the context of a prior driving record should be allowed in British Columbia. The defendant refers me to some Ontario authorities in support of his position that such pleadings are improper.

[23]         In Wilson v. Lind, (1985) 35 C.C.L.T. 95, O’Brien J. struck from the pleadings allegations of prior or subsequent impaired driving by the defendant. The application was brought on the basis that the allegations were prejudicial, scandalous or an abuse of process, a rule akin to our R. 9-5(1). At paragraph 12 the court held the following:

Our Courts have held for a long time, and for good reason, that prior negligence of a party is generally irrelevant to proof of subsequent negligence. …

[24]         I note that of the five driving infractions in our case, only two of them are for the same offence, namely speeding. Both were over five years old at the time of the accident. Indeed four of the five convictions were over five years old, with the fifth occurring some months after the accident. The defendant was not issued a violation ticket arising out of the accident.

[25]         The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.

[26]         It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.

[27]         In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.

[28]         After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:

The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.

[29]         I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.