BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury 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 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 the ‘ICBC Liability (fault) Cases’ Category

Negligence Claim Dismissed Following Vehicle / Sled Collision

April 16th, 2014

Reasons for judgement were released today (Scott v. Brown) by the BC Court of Appeal addressing motorist liability following a vehicle collision with a two children who were “riding their sled westbound on 4th Street (in Nakusp, BC) down a gentle slope.“. ¬† The Defendant motorist was driving eastbound. ¬†It was “snowing heavily and visibility was poor“. ¬† ¬† The trial judge found that while the vehicle, travelling with its lights on, should have been visible to the Plaintiffs they may not have been visible to the Defendant with sufficient time to react. ¬†The claim was dismissed. ¬†In upholding this result the BC Court of Appeal provided the following reasons:

30]         Visibility was the most contentious issue. The trial judge found that the truck’s headlights would have been visible to the girls when they were on the dark hill and that there was no explanation for why they did not see the truck approaching. Mr. Brown testified that visibility was limited to 100-200 feet. He also testified that the light from his headlights projected 100-200 feet. He kept them on dim, as high beams reflected brightly off the snow. He could see streetlights several blocks ahead, but he could not see anything in between them. Critically, as he passed under a streetlight, the downward light reflected off the snow and made it difficult to see. He described his vision was blanketed, a whiteout, some of the worst conditions he had ever seen. Mr. Brown testified that he did not see the sled until he was halfway through the streetlight just west of the intersection. The trial judge found that if Mr. Brown was travelling 47 kph and visibility was 100 feet, he would not have been able to stop when an object came into view. However, he would have been able to stop in time if visibility was 200 feet. The trial judge found that it was not possible to determine which estimate of visibility was more accurate. The trial judge weighed the evidence and found she was unable to establish Mr. Brown was driving too fast for the road conditions. The plaintiffs had not met their burden. ..

32]¬†¬†¬†¬†¬†¬†¬†¬†¬†The evidence was unsatisfactory. The trial judge was alive to the ‚Äúpaucity of the evidence and its obvious frailties‚ÄĚ (para. 95) and the difficulty faced by Ms.¬†Armstrong and Ms. Scott in the circumstances as they bore the burden of proof.¬†

[33]         At the end of the day, the trial judge could not decide the very issues that had bearing on negligence. She could not say Mr. Brown was driving too fast for the road conditions having regard to all the circumstances. There was insufficient evidence to make key findings. She decided the case on the basis of who bore the burden of proof. The appellants failed to prove their case.

[34]         I find the trial judge made no palpable and overriding errors, and did not misapprehend evidence regarding visibility and speed. I would dismiss the appeals.

 


Bus Driver Liable Following Injury to “Elderly, Frail and Hunched” Passenger

April 2nd, 2014

Adding to this site’s archived cases addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a bus driver partly liable after putting the bus in motion when an elderly passenger was attempting to exit.

In this week’s case (Bideci v.Neuhold) the 93 year old plaintiff boarded a bus. ¬†When the bus came to his stop he “spent several seconds in the process of attempting to rise from his seat“. ¬†The bus driver failed to see this, closed the door and put the bus in motion prior to the plaintiff exiting. ¬†This caused the Plaintiff to fall resulting in injury.

In finding the bus driver liable Mr. Justice Abrioux provided the following reasons:

[72]¬†¬†¬†¬†¬†¬†¬†¬†¬†The standard of care to which Mr. Neuhold was subject included taking a careful enough look into the rear-view mirror as was appropriate under the circumstances in existence at the time. As he candidly admitted in his evidence, he was under no specific time constraints: ‚ÄúIf you‚Äôre late, you‚Äôre late‚ÄĚ. Safety of his passengers was his primary consideration.

[73]         Mr. Neuhold’s evidence was that photograph 8 of Exhibit 7 was the most accurate approximation of what he would have seen as he looked in his rear-view mirror, with a caveat being that he would not have been able to see the wheel well on the passenger side of the bus.

[74]          Mr. Bideci’s seat is clearly visible in this photograph and there were no obstructions such as someone standing or moving which would have obscured Mr. Neuhold’s view of this area.

[75]         I appreciate that Mr. Neuhold is not subject to a standard of perfection nor is he the plaintiff’s insurer. But when I apply the legal principles to which I have referred above to my findings of fact, I conclude that the defendants have not satisfied the burden on them to establish that Mr. Neuhold used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff.

[76]¬†¬†¬†¬†¬†¬†¬†¬†¬†Based on my review of the video, I am of the view that Mr. Neuhold did not look carefully enough in his rear-view mirror before deciding to perform his final outside mirror check, which preceded his putting the bus in motion. Had he in fact taken a ‚Äúlong hard look‚ÄĚ or a ‚Äúpretty significant look‚ÄĚ in his rear-view mirror as Ms.¬†Trott stated that he did, he would have seen his elderly, frail and ‚Äúhunched‚ÄĚ passenger in the process of slowly rising from his seat.

[77]         Accordingly, I conclude the defendants have not satisfied the burden on them to answer the prima facie case of negligence and I find them liable for the Accident.

 


Negligent RCMP “Bait Car” Pursuit Results in nearly $1 million in Damages

April 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, resulting in a nearly $1 million judgement following the RCMP’s negligent response to a ‘bait car’ theft.

In today’s case (Watkins v. Dormuth) the Defendant RCMP officer was responding to a bait car activation call. ¬†He proceeded North in the southbound lanes to get around traffic. ¬†At the same time the Plaintiff was making a left hand turn at an intersection. ¬†A t-bone collision occurred which resulted in serious injuries whith profound consequences and were expected to have a permanent disabling effect on the Plaintiff. ¬†Damages of close to $1 million were assessed.

The RCMP argued the Plaintiff was to blame for the collision.  Mr. Justice Blok disagreed finding the RCMP were entirely at fault.  In reaching this conclusion the Court provided the following reasons:

[78]         The provisions show there are certain prerequisites that must be met before a police officer may exercise the privileges set out in s. 122 of the Motor Vehicle Act.  In particular, the police officer must have reasonable grounds to believe that the risk of harm to members of the public from the exercise of those privileges is less than the risk of harm to the public should those privileges not be exercised.  Even where the prerequisites are met, the driving privileges afforded by the Motor Vehicle Act must be exercised with due regard for safety, having regard to certain factors.

[79]         I conclude that Cst. Dormuth did not have reasonable grounds to believe that the risk of harm to the public from exercising emergency vehicle privileges was less than the risk to the public should he not exercise those privileges.  All he knew was that there had been a bait car activation.  An activation did not mean that there was a risk of harm to the public because an activation signal could be caused by the mere opening of the bait car door or trunk.  It did not necessarily mean the car was being driven, let alone driven in a manner dangerous to the public.

[80]         This conclusion is consistent with the detachment’s bait car policy, which provides that the normal response level to a bait car activation is Code 2, that is, by proceeding immediately but without using lights or siren.  In other words, the detachment’s own policy recognizes that a bait car activation is a non-emergency event.

[81]¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendants assert that Cst.¬†Dormuth was not negligent in responding at a Code 3 level because that is how he had been trained, erroneous as it was.¬† However, I do not see that this absolves the defendants of liability since it is plain that the training given to Cst.¬†Dormuth was faulty….

[95]         Emergency vehicles do not have free rein in exercising the driving privileges accorded by s. 122 of the Motor Vehicle Act.  They may only do so within the limits set by the Emergency Driving Regulation and they are constrained by the duty to drive with due regard for safety: Frers, at para. 89.  I conclude that Cst. Dormuth had no basis to exercise any emergency vehicle driving privileges, and I conclude that in exercising those privileges he did not drive with due regard for safety in the circumstances of this case.

[96]         For these reasons I conclude that the responsibility for this accident rests entirely with the defendants.

 


BC Court of Appeal Discusses Duties of Motorists and Pedestrians in a Parking Lot

March 19th, 2014

Reasons for judgement were released today by the BC Court of Appeal addressing the legal duties of both motorists and pedestrians while in a parking lot.

In today’s case (Russell v. Parks) the Plaintiff pedestrian was walking in a parking lot and was “about 6 feet into a a marked parking stall” when the Defendant backed his vehicle into the same stall and struck the Plaintiff. ¬†At trial the the Court found the pedestrian was 2/3 at fault for the incident. ¬†In overturning this to a 25/75 split in the pedestrians favour the BC Court of Appeal provided the following reasons addressing the parties duties:

[16]¬†¬†¬†¬†¬†¬†¬†¬†¬†In my respectful opinion, the trial judge erred in law by applying s.¬†179(2), rather than ss.¬†180 and 181, to the circumstances of this case. Madam Justice Rowles‚Äô analysis in¬†Loewen v. Bernardi, and the wording of s.¬†179, when viewed as a whole, describe a code of conduct for vehicles and pedestrians who are approaching or entering a crosswalk. Where, as in this case, there are no crosswalks, ss.¬†180 and 181 are more appropriate. Section 180 imposes a duty on the pedestrian to yield the right of way to a vehicle when crossing a highway at a point¬†not in a crosswalk. Under the¬†Motor Vehicle Act, a parking lot falls within the definition of ‚Äúhighway‚ÄĚ. Mr.¬†Russell was crossing through a parking lot and it is clear that he was not using a crosswalk, therefore s.¬†180 applies. Section 181 imposes a corresponding duty on a driver ‚Äúto exercise due care to avoid colliding with a pedestrian on a highway.‚ÄĚ ¬†The standard of ‚Äúdue care‚ÄĚ will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space. This approach is consistent with¬†Bohati v. Jewell¬†(1996) 84 B.C.A.C. 161, another ‚Äúparking lot‚ÄĚ case, where this court relied on what are now ss.¬†180 and 181 to apportion liability. Sections 180 and 181, rather than s.¬†179(2), have also been relied upon in lower court decisions involving parking lots: see¬†Gray v. Ellis, 2006 BCSC 1808, and¬†Davidson v. Donnelly, [1996] B.C.J. No.¬†800 (S.C.).

[17]¬†¬†¬†¬†¬†¬†¬†¬†¬†Even if Mr.¬†Russell did leave a place of safety, the trial judge erred in his interpretation of s.¬†179(2) by considering only part of it. This provision has two components: a pedestrian must leave a place of safetyand¬†this must be done so suddenly that it is ‚Äúimpracticable for the driver to yield the right of way.‚ÄĚ The trial judge‚Äôs findings clearly indicate it was not impracticable for Mr.¬†Parks to yield the right of way. He found that Mr.¬†Parks could have stopped and avoided the accident had he been keeping a proper lookout (para.¬†34). In my view, s.¬†179(2) contemplates a situation where the pedestrian steps onto a path designated for pedestrians (such as a crosswalk) but in doing so steps immediately into the path of a moving vehicle that could not practicably yield the right of way in time. According to the trial judge‚Äôs findings, this does not describe the situation in which Mr.¬†Russell and Mr.¬†Parks found themselves.

[18]         Mr. Russell argues that if he was not in violation of the statutory obligation pursuant to s. 179(2), he is not contributorily liable. I would not disturb the trial judge’s finding that he breached his common law (and statutory) duty to exercise due care and that this contributed to his injuries. The trial judge found that Mr. Russell was looking down as he walked into the parking stall, and as a result, failed to take reasonable care for his own safety. There is no basis on which to interfere with this conclusion.

[19]¬†¬†¬†¬†¬†¬†¬†¬†¬†The next question is whether the apportionment of liability was grossly disproportionate to what this court would have ordered (see¬†Moses, supra, para.¬†33). Each assessment will turn on the facts of the case. In this instance, Mr.¬†Russell was looking down as he stepped over the barrier, and continued to look down as he took a few steps into the parking stall. Mr.¬†Parks was aware that there were pedestrians in the area, entered the lot from a direction that required him to swing wide to enter a parking stall, changed his mind at the last minute in terms of which stall he would take, shoulder checked numerous times, and ended up driving forward when he was looking backward, striking Mr.¬†Russell. Clearly both were at fault. However, finding that Mr.¬†Russell was two-thirds responsible for the accident, in my respectful view, is grossly disproportionate to his fault. The trial judge was clearly influenced by the finding that Mr.¬†Russell had breached his statutory duty under s.¬†179(2) of the¬†Motor Vehicle Act¬†by leaving a ‚Äúplace of safety‚ÄĚ. As I have explained above, this finding was in error. Although Mr.¬†Russell was looking down as he walked, he did not step off a curb or shoulder into moving traffic (which is what s.¬†179(2) is designed to prevent) and his fault should not be assessed as if he did.

[20]¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†Loewen v. Bernardi, this court reduced a finding of liability against the pedestrian plaintiff from 25% to 10% on the basis that the plaintiff‚Äôs contribution was minor. In that case, the plaintiff was half-way through a marked crosswalk when he was struck by a vehicle. I would not characterize Mr.¬†Russell‚Äôs degree of fault as ‚Äúminor‚ÄĚ. On the other hand, it was not the main cause of the accident. The main cause was the fact that Mr.¬†Parks drove forward while he was looking backward. I would allow the appeal on this ground and apportion liability on the basis of 75% against Mr.¬†Parks and 25% against Mr.¬†Russell.

 


Rollerblader 10% at Fault Following Crosswalk Collision

February 28th, 2014

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a rollerblader and a vehicle.

In this week’s case (Chabot v. Shaube) the Plaintiff was rollerblading and entered an intersection in a marked crosswalk. ¬†She had the right of way. ¬†She passed 4 of 5 lanes when the Defendant motorist, who failed to see her, moved forward attempting a right had turn. ¬†A collision occurred. ¬†Despite having the right of way the Plaintiff was found 10% at fault for the collision due to her speed when crossing. ¬†In reaching this division of fault Mr. Justice Brown provided the following reasons:

[30]         The defendant should not have rolled to a stop and proceed as she did, considering the traffic, the time of day and the marked crosswalk in front of her. Her passenger saw the plaintiff and called out a warning.

[31]¬†¬†¬†¬†¬†¬†¬†¬†¬†As for the plaintiff, once she chose to skate across the intersection, she should have skated at a pace that slow enough to allow her to stop as quickly as if she were walking or at most slowly jogging, which is, for all practical purposes, instantaneously, after allowing a moment to see and react. In other words, she departed from the standard of care of a reasonable person in similar circumstances. By skating at a fairly brisk jog, she failed to exercise sufficient care for her own safety when crossing a busy intersection during morning rush hour at UBC…

[34] The plaintiff was not walking. She was travelling considerably quicker than a pedestrian walking. She does not have to guard against every conceivable eventuality, or to assume a vehicle in the designated right turn lane might not respect her right of way. Only, considering the circumstances, to be more vigilant and to take reasonable precautions for her own safety, considering she was skating across the intersection, could not see traffic on the other side of the bus and could not stop as quickly as she could on foot.

[35] The law does not declare the plaintiff broke the law by skating across the crosswalk. Cyclists are obligated to dismount when they enter a crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. But the Motor Vehicle Act does not include roller blades in its definition of ‚Äúcycle‚ÄĚ, see s. 119(1) ‚Äúcyclist‚ÄĚ; they are pedestrians. Further, I appreciate inline skating is a popular way to get around in good weather. Some road skaters appear very adept and agile skaters. I accept the plaintiff was an experienced skater and that she knew how to stop properly on skates. She was not obliged to remove her skates to cross. But having chosen to skate across the crosswalk, she needed to take reasonable precautions for her own safety, commensurate with her speed and visibility of traffic beyond the stopped bus.

[36] As noted in Karran, ‚Äúfault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.‚ÄĚ I find the plaintiff‚Äôs conduct falls within the range of a momentary or minor lapse of conduct, which nevertheless, carries with it the risk of foreseeable harm. Based on this finding, and the circumstance that she was always within a marked crosswalk, I apportion 90% fault to the defendant and 10% to the plaintiff.

 


Wide Left Turn Leads to Contributory Negligence Finding

February 3rd, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing fault for a crash involving a wide left hand turning vehicle.

In this week’s case (Le v. Point) the Plaintiff was operating a scooter and passed a vehicle which was stopped ahead of him waiting to turn left. ¬†The Plaintiff passed on the right hand side of the vehicle. ¬†At the same time the Defendant, coming from the opposite direction, was attempting a left hand turn through the intersection. ¬†The Defendant almost cleared the intersection when the Plaintiff clipped the rear of the vehicle.

The Court found the Defendant was established in the intersection and was the dominant vehicle with the Plaintiff failing to keep a proper lookout.  Despite this the Defenant was found partially at fault because she was turning wide into the curb lane.

In finding the Defendant 30% at fault Madam Justice Russell provided the following reasons:

[51]         I find that Mr. Le did not keep a proper lookout as he entered the intersection. If he had, he would have seen Ms. Dickson’s vehicle conducting a left turn. By the time he entered the intersection, Ms. Dickson’s vehicle was in the northeast corner of the intersection, which was directly in front of his line of vision.

[52]         However, Ms. Dickson has admitted that she violated s. 165 of the Motor Vehicle Act by turning wide into the northbound curb lane of traffic on Arbutus rather than the lane of traffic closest to the centre line. While this in itself is not sufficient to establish that she breached her duty of care, if she had turned into the nearest northbound lane as required, it is likely she would have been clear of the intersection by the time that Mr. Le entered it and the collision may never have occurred. On this basis, I find Ms. Dickson was contributorily negligent in causing the collision despite the fact that she was the dominant driver.

[53]         In closing arguments the plaintiff referred to several cases in which a left turning driver was held 100% liable for collisions: Andrews v. Mainster, 2012 BCSC 823, Clarke v. Stephan, 1993 CanLii 1554 (B.C.S.C.), Djukiv v. Hahn, 2006 BCSC 154, Tait v. Dumansky, 2012 BCSC 332, Pasemko v. Van Varner, 1994 CanLii 1043 (B.C.S.C.). These cases are not of assistance to the Court in deciding the issues at hand. In all of these cases it was found that the left turning driver failed to observe traffic which constituted an immediate hazard and breached an obligation to yield the right-of-way. Since I have found that Mr. Le was not an immediate hazard and Ms. Dickson was the dominant driver, these cases are distinguishable on their facts.

[54]         In the circumstances of this case, I apportion the fault for the 2010 Collision as 70% to Mr. Le and 30% to Ms. Dickson.


Passenger Partly Liable for Collision After Grabbing Steering Wheel

January 13th, 2014

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing fault for a single vehicle collision involving a passenger who grabbed the steering wheel.

In last week’s case (Sikora v. Brown) both the motorist and her passenger were driving home from a nightclub. ¬†Both had been drinking but neither was “seriously intoxicated“. ¬†As they drove through an intersection the steering wheel was shaking and the driver invited the passenger to feel this. ¬†He held on to the steering wheel and shortly thereafter the collision occurred. ¬†In finding both the driver and passenger equally to blame Mr. Justice Verhoeven provided the following reasons:

[37]¬†¬†¬†¬†¬†¬†¬†¬†¬†In these difficult circumstances, where neither version of events is reliable and where there is essentially no independent corroborative evidence one way or another, I find as follows.¬† Ms.¬†Sikora had been drinking some alcohol at the nightclub but was not seriously intoxicated.¬† Mr.¬†Brown had been drinking as well, somewhat more than she had, but was a large man and was also not seriously intoxicated. ¬†They left the nightclub together intending to go to Ms.¬†Sikora‚Äôs home. Along the way they discussed going to a restaurant. ¬†Whether they actually agreed to go to the restaurant is immaterial.¬† Ms.¬†Sikora was driving at about 60 km/h as they drove through the intersection. ¬†She was aware that the intersection caused her vehicle to shake, and that the steering of her vehicle was notably ‚Äúloose‚ÄĚ and prone to shaking.¬† Either before entering the intersection or in its midst, in the context of telling Mr.¬†Brown about the new car she had ordered that very day, she commented about the condition of the intersection, complained that it should be repaired, and complained about the poor condition of her vehicle‚Äôs steering in common with Fords generally.¬† She did not slow down before entering the intersection.¬† She invited Mr.¬†Brown to observe the shaking of the steering wheel, and to feel the steering wheel of the car for himself.¬† He held it for a few seconds then let go. ¬†The combined effects of Mr.¬†Brown‚Äôs holding of wheel, the condition of the road and vehicle, and Ms.¬†Sikora‚Äôs manner of driving the vehicle caused her to lose control of the vehicle some seconds after Mr.¬†Brown let go of the wheel.¬† The precise mechanics of this are impossible to sort out. She did not brake at any time. ¬†The vehicle likely swerved left before veering to the right, and then left the roadway to the right side, before eventually coming to rest in the ditch upon impact.

[38]         I find that both parties were negligent and that they both contributed to causing the accident in equal measure.  Ms. Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects.  In somewhat precarious circumstances, she invited Mr. Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle.  She did not slow down when he held the steering wheel for several seconds.  She lost control of the vehicle after he let go of the wheel.

[39]¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms.¬†Sikora‚Äôs comments about the problems with her vehicle‚Äôs steering, that his actions could affect Ms.¬†Sikora‚Äôs ability to control the vehicle.¬† I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise.¬† I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking. ¬†He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle…

[45]         I find that Ms. Sikora and Mr. Brown are equally at fault for causing the accident.  As a result it is not strictly necessary to apply s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides that where the fault of two or more persons causes damage or loss to one or more of them, liability must be apportioned equally if having regard to all the circumstances of the case it is not possible to establish different degrees of fault.


“Poor, Homeless and Sick” Plaintiffs Not Negligent For Accepting Ride in Box of Pick Up Truck

January 9th, 2014

While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances.  Reasons for judgment were released this week by the BC Supreme Court addressing this.

In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops. ¬†Many of the workers were unrestrained in the box of the pick up truck. ¬†The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.

The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck. ¬† Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride. ¬†In reaching this conclusion the Court provided the following reasons:

[282]¬†¬†¬†¬†¬†I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people….

[284]     I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions:

1)    Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals;

2)    Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness;

3)    Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay;

4)    The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks;

5)    On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold;

6)¬†¬†¬†¬†The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated….

296]     Annie controlled the workers’ transportation and she called the shots.

[297]     The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.

[298]     By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.

[299]     These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in Iannone, Bissky, Massey and Fraser.

[300]     Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.


RCMP Liable for Fatal Collision in Course of Pursuit of Suicidal Motorist

January 7th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability for a fatal collision which occurred during a police pursuit.

In today’s case (Bergen v. Guliker) the Plaintiff vehicle was struck head on by the Defendant vehicle which was fleeig from police at the time of collision. ¬†The court noted that “Prior to the Collision, it was known that Mr. Guliker was suicidal, had stated an intention to jump into traffic to kill himself, and was a flight risk. When the RCMP first approached Mr. Guliker, he was parked at a chicken farm on Bustin Road. On sighting the RCMP, Mr. Guliker fled north on Bustin Road at a high rate of speed.”.

The Court found that the RCMP were in part responsible for the tragic collision.  In reaching this conclusion Mr. Justice Savage provided the following reasons:

[249]     Once Mr. Guliker accelerated down Bustin Road, it was obvious to the RCMP officers that Mr. Guliker’s sighting of their vehicles precipitated his flight. A proper risk assessment at this point would have alerted the officers to the significant public safety risk of chasing a suicidal individual who is determined to evade apprehension down unfamiliar rural roads at high rates of speed.

[250]     Nevertheless, the officers commenced and continued a pursuit of Mr. Guliker up to the point of the Collision.

[251]     To summarize, in my opinion Constables Huff and Brand failed to conduct a proper risk assessment at two critical times: (1) before deciding to proceed down Bustin Road without a plan in place that recognised the likelihood of Mr. Guliker fleeing in his vehicle, and (2) after proceeding down Bustin Road toward Mr. Guliker’s location and seeing him accelerate away. A proper first risk assessment would have precipitated the development of a plan to address the likelihood of Mr. Guliker fleeing. A proper second risk assessment would have called off the chase and considered other options.

[252]     I find that Constables Huff and Brand did not act within the standard of a reasonable police officer, acting reasonably and within the statutory powers imposed upon them in the circumstances of this case. In the result, the RCMP officers breached their duty of care owed to the plaintiffs.

 


Motorcyclist At Fault for Collision After Making “Poor Reactive Choice”

November 22nd, 2013

Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.

In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff. ¬†The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“. ¬†In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:

[42]         I find that the accident happened through no fault on the part of the defendant.  She did what was reasonably expected of her.  She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again.  She cannot be held responsible for his decision to veer to the right.

[43]         The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn.  That evidence struck me as a post hoc rationalization of the plaintiff’s actions.  There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.

[44]         I find this accident happened solely due to the plaintiff’s fault.  He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant.  He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.

[45]         The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.

[46]         The action is, therefore, dismissed.


 

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