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This 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.
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 the ‘ICBC Liability (fault) Cases’ Category
May 16th, 2013
Reasons for¬†judgement¬†were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80%¬†responsible¬†for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle¬†through¬†a¬†construction¬†zone when he drifted over the fogline to his right. ¬†There was a two inch drop off in the pavement level due to on-going construction. ¬†The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial¬†judge¬†found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care. ¬† The Defendants “failed to adhere to several of those standards“. ¬†In finding that this was an¬†appropriate¬†standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Sections 138 and 139 of the¬†Motor Vehicle Act, R.S.B.C. 1996, c.¬†318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138¬† On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139¬† On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The Ministry of Transportation‚Äôs Traffic Control Manual for Work on Roadways [the ‚ÄúManual‚ÄĚ] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways. ¬†Section 1.1 states that the examples provided within the Manual are ‚Äúgenerally the minimum required‚ÄĚ…
¬†¬†¬†¬†¬†¬†¬†¬†¬†As already noted, the trial judge held at para.¬†93 of her reasons that s.¬†138 of the¬†Motor Vehicle Act¬†and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances. ¬†(Although not specifically mentioned, s.¬†139 is of relevance as well.) ¬†She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para.¬†71:
¬†¬†¬†¬†¬† In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual.¬† By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained.¬† The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
¬†¬†¬†¬†¬† In my view, the defendants failed to adhere to several of those minimal standards.¬† With respect to many of them, Mr.¬†Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The errors identified by the appellants are findings of fact made by the trial judge.¬† The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court.¬† Those findings of fact are amply supported by the evidence. ¬†I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.
May 7th, 2013
Reasons for judgement were released this week by by BC Supreme Court, Chilliwack Registry, addressing the issue of implied or express owner consent following a motor vehicle collision involving an impaired driver.
In this week’s case ¬†(Gibbs v. Carpenter) the¬†Defendant¬†Carpenter was driving a vehicle owned by the Defendant Kusch. ¬†She denied giving him permission to drive the vehicle. ¬†He was “impaired by alcohol” when he “crossed the centre line and collided head on” with the Plaintiff vehicle.
Mr. Justice Joyce had to decide whether there was consent for him to drive. ¬†There was conflicting evidence on this point and the Court ultimately made the call that there was no express or implied consent letting the owner off the hook. ¬†Prior to deciding this issue the Court grappled with whether a written statement the owner gave the police was admissible.
In the aftermath of the collision the owner provided the police with a verbal statement indicating that consent for the trip was not given or if it had been the owner expected someone else to drive. ¬†This statement was admitted into¬†evidence¬† ¬†The owner provided a more fullsome written statement to the police¬†following¬†this. ¬†The owner attempted to get the written statement into evidence arguing it formed part of the original statement or in the alternative that it was needed to rebut an allegation of recent fabrication. Mr. Justice Joyce disagreed and excluded the statement. In doing so the following useful summary of the law was provided:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms.¬†Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms.¬†Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As for the submission that the written statement should be admitted to clarify the equivocal oral statement, the trial was the opportunity to testify whether the oral statement was made or not, whether it was accurate or not, whether Constable Wright‚Äôs version of what Ms. Kusch said was complete, or whether his recall and recording of the statement were incomplete. I, therefore, do not accede to Mr.¬†Harris‚Äô first ground.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†R. v. Stirling, 2008 SCC 10 [Stirling], Mr.¬†Justice Bastarache reviewed the principles applicable in determining when prior consistent statements can be led to rebut an allegation of recent fabrication and how such statements, if admitted, are to be used. The context in which the issue arose in¬†Stirling¬†is set out in paras.¬†1 – 2:..
¬†¬†¬†¬†¬†¬†¬†¬†¬†Thus, the purpose of the prior consistent statement is to remove a potential motive to fabricate and a trial judge may consider the removal of this motive when assessing the witness‚Äôs credibility.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the recent decision delivered from the Ontario Court of Appeal,¬†R. v. Kailayapillai, 2013 ONCA 248 at para.¬†41, I note that Mr.¬†Justice Doherty adopted the phrase ‚Äúmotive or reason‚ÄĚ to fabricate and discussed the importance of the timing of the statement in relation to when the motive or reason arose:
¬†¬†¬†¬†¬† … The value of the¬†prior consistent statement¬†does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged¬†motive or reason¬†to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness‚Äôs evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness‚Äôs evidence is made more credible to the extent that the asserted¬†motive or reason¬†advanced for fabrication has been negated by the evidence of the¬†prior consistent statement: see¬†R. v. Stirling,¬†2008 SCC 10,  1 S.C.R. 272, at paras.¬†5-7.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Once admitted, the trial judge may not use the prior consistent statement for the truth of its contents. At para.¬†11 of¬†Stirling, Bastarache J. said:
¬†¬†¬†¬†¬† Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. …. What is clear from all of these sources is that credibility is necessarily impacted ‚ĒÄ in a positive way ‚ĒÄ where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the present case, any reason that Ms.¬†Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner‚Äôs permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.
April 29th, 2013
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the¬†responsibility¬†of transit operators to drop their passengers off at a safe location.
In last week’s case (Falconer v. BC Transit Corporation) the Plaintiff (who the judge and defence counsel described as “one of the most honest and direct people I have ever come¬†across“) was a passenger on a bus in Kamloops, BC. ¬†It was a winter day and the bus “was not brought to a stop at the bus stop where there was a curb“. ¬† As a result, the Plaintiff ¬†”had a greater distance to step down from the bus than if the bus had been brought to a halt right at the bus stop“.
The Plaintiff slipped on a skiff of snow and was injured. ¬†In finding the bus drier 75% at fault for this incident Mr. Justice Abrioux provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, a¬†prima facie¬†case of negligence has been established by the plaintiff. Although Mr. Falconer may not have been able to say what caused him to fall, I have found it was the lower level, icy surface upon which he stepped off the bus due to where the bus driver chose to stop the bus.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The issue then becomes whether the defendant has presented evidence negating the¬†prima facie¬†case of negligence that has been established. In my view it has not. The reasons for this include:
¬∑¬†¬†¬†¬†¬†¬†¬†it has led no evidence as to why the bus stopped where it did. Perhaps there was another bus which had pulled up at the stop sign in front of it, but there was no evidence to that effect;
¬∑¬†¬†¬†¬†¬†¬†¬†it has led no evidence from which I could conclude that the location where the rear doors opened was a ‚Äúreasonably safe place for [Mr. Falconer] to debark‚ÄĚ. See:¬†Grand Trunk Pacific Coast Steamship Co. v. Simpson;
¬∑¬†¬†¬†¬†¬†¬†¬†viewed within the context of the ‚Äúvery high degree of care‚ÄĚ required of a public carrier, the fact Mr. Falconer erroneously believed it was safe for him to debark cannot be interpreted to mean it was in fact reasonably safe for him to do so;
¬∑¬†¬†¬†¬†¬†¬†¬†the defendant has led no evidence as to whether a warning to passengers was not required under the circumstances.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, there was a ‚Äúheightened need to adduce evidence in response, either to prevent the drawing of adverse inferences or to negate a¬†prima facie¬†case‚ÄĚ. See:¬†Parsons and Sons Transportation Ltd.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In addition, Mr. Rogers breached the standard of care expected of a bus driver by leaving the bus stop. An elderly passenger had slipped and fallen in the immediate vicinity of the rear door of the bus. The fact Mr. Rogers left the scene can only mean he did not perform the appropriate check in his right mirror. To quote Mr. Cameron, ‚ÄúI don‚Äôt see how a person can drive away in a bus without checking the right mirror to see that they are clear.‚Ä¶ You could have a kid reaching in there for a ball under the tires or whatever‚ÄĚ. Although this breach of the standard of care did not cause the plaintiff‚Äôs injury, it indicates to me a ‚Äúgeneral lack of care and inattention‚ÄĚ by Mr. Rogers in so far as his responsibilities to passengers were concerned. See:¬†¬†Donald v. Huntley Service Centre Ltd., (1987) 61 O.R. (2d) 257 (S.C.J.) at para. 9.
April 18th, 2013
As previously discussed,¬†admissions¬†in the aftermath of a collision can be important evidence when a liability case proceeds to trial. ¬†Reasons for judgement were released this week where such evidence was the crucial tipping point.
In this week’s case (Koshman v. Brodis) the parties were¬†involved¬†in an intersection collision. Both claimed to have a green¬†light. ¬†Both had¬†independent¬†witnesses confirming their versions of events. ¬†Ultimately the Court held that while it was a close call the Plaintiff likely had the green light and held the Defendant fully at fault. ¬†In reaching this conclusion the Mr. Justice Ehrcke provided great weight to an at-scene admission made by the Defendant. ¬†The following reasons were provided:
¬†¬†¬†¬†¬†¬†¬†¬†¬†A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.
¬†¬†¬†¬†¬†¬†¬†¬†¬†What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr.¬†Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr.¬†Fontaine testified that the defendant said to him, ‚ÄúOh my God, I‚Äôm so sorry, I didn‚Äôt see the red light.‚ÄĚ The defendant denies having said those words.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I do not accept the defendant‚Äôs explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr.¬†Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.
One matter of interest that did not appear to be canvassed was whether this admission should have been admitted give section 2 of BC’s Apology Act which holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”
March 12th, 2013
In what can only be described as a unique and bizarre collision, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, assessing fault for a collision where an individual was struck by his own vehicle put in motion by his spouse.
In this week’s case (Mayne v. Mayne) the Plaintiff was in his vehicle with his wife, the Defendant, occupying the passenger seat. ¬† As he was pulling out of his garage he stopped the vehicle and went back in his home to retrieve a key. ¬† He left the vehicle running in neutral (mistakenly¬†believing it had been placed in park). ¬†The vehicle slowly started to run down into the roadway. ¬†His wife,¬†concerned¬†it would be involved in a collision, reached over and attempted to put the vehicle in park. ¬†She was not successful, however, and shifted the vehicle into drive. ¬†The vehicle lurched forward and struck the¬†Plaintiff¬†who was just coming back out of the home.
The Court found both individuals equally to blame for the incident. ¬†In placing 50% of the fault on the Defendant Madam Justice Bruce provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Having regard to the circumstances of this case, I am unable to find that Mrs. Mayne has satisfied the onus of proof regarding the defence of ‚Äúagony of the moment‚ÄĚ. There was only a nominal risk of harm to the neighbour‚Äôs home and Mrs. Mayne panicked and took unreasonable and dangerous steps to stop the backward rolling vehicle. While Mrs. Mayne did not expect the Buick to roll backward, having no foreknowledge of Mr. Mayne‚Äôs failure to engage the emergency brake or to leave the vehicle in park, she nevertheless severely overreacted to the perceived danger. Given the very slight slope of the driveway, and viewed in light of the video presentation showing the likely speed of the Buick as it rolled backward, it is apparent that things were not happening quickly at all. The Buick was travelling ever so slowly albeit in a backward direction. There was no one in the area and the roadway was devoid of other traffic. The neighbour‚Äôs home was a considerable distance away. The Buick would have to travel out of the driveway, over the first curb, cross the roadway and negotiate the next curb, and travel through the lawn and the hedges of the neighbour‚Äôs home before it would have come into contact with a structure.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In these circumstances, Mrs. Mayne had time to consider what to do. She could have easily unbuckled her seatbelt to make it easier to reach over and place the vehicle in park. She could have simply taken the key out of the ignition. There was no imminent danger from any objective point of view.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The court must not make armchair judgments based on hindsight; however, clearly Mrs. Mayne panicked in a situation that would not have panicked a reasonable person in the same circumstances. Counsel argued that her age should be a factor. At 81, her reaction times and her judgment would be impaired. However, the law cannot countenance a lower standard for elderly drivers. Mrs. Mayne had a drivers‚Äô licence and regularly operated the Buick. As a consequence, the court must presume that she possessed sufficient competence to operate a motor vehicle safely.
¬†¬†¬†¬†¬†¬†¬†¬†¬†For these reasons, I find that Mrs. Mayne was negligent when she took control of the Buick and struck Mr. Mayne.
March 5th, 2013
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a Defendant who u-turned into a parking spot behind a backing up vehicle.
In this week’s case (Ferguson v. Yang) the Plaintiff stopped along the curb of 8th Street in New Westminster to drop his daughter off for school. ¬†There was a gap behind him with a white van parked behind him. ¬†The Defendant, who was approaching from the opposite direction made a u-turn and pulled into the gap. ¬†At the same time the Plaintiff was backing up and a collision¬†occurred.
Although there was a dispute as to how the collision occurred the Court found the above scenario the likely one as the Defendant’s evidence was “fraught with¬†inconsistencies¬†and obvious exaggerations“. ¬†In finding the¬†Plaintiff faultless for the collision Mr. Justice Weatherill provided the following reasons:
41]¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, the u-turn performed by the defendant in an attempt to secure a parking spot across the street in a school zone where parents were busy dropping their children off for school was a maneuver fraught with danger. ¬†Moreover, I am satisfied that the plaintiff‚Äôs backup lights were illuminated, that the defendant ought to have seen them and that he ought to have anticipated the plaintiff‚Äôs vehicle was in the process of reversing into the space the defendant was attempting to move into. ¬†Captain MacPherson saw these backup lights. ¬†Had the defendant been keeping a proper look out, he would have seen them as well.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant has failed to satisfy me that the plaintiff was contributory negligent in any way. ¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†The law does not require perfection on the part of the plaintiff to guard himself against every conceivable eventuality.¬† He must only guard himself against those eventualities that a reasonable person ought to have foreseen, within the ordinary range of human experience.¬† The plaintiff was entitled to proceed on the assumption that all other vehicles would do what is there duty, namely observing the rules of traffic:¬†Pacheco (Guardian ad Litem of) v. Robinson¬†(1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11;¬†Dechev v. Judas, 2004 BCSC 1564 at para. 22.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff checked the area around his vehicle by looking in his side and rear view mirrors and by looking over his right shoulder. ¬†He did all that he ought to have done. ¬†A reasonably prudent driver should not be expected to anticipate that while in the course of backing up, another vehicle will perform an aggressive and illegal u-turn from the other side of the street in an attempt to occupy the space behind him.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff had no warning of the impending collision. ¬†I do not believe the defendant‚Äôs evidence that he was stopped and that he honked his horn prior to the collision.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†Carson v. Henyecz,¬†2012 BCSC 314, Madam Justice Hyslop stated at para. 99
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† The duty imposed on a reversing driver is not just when the driver starts to reverse, but throughout the entire reversing procedure and to its completion. ¬†The object is to be aware as reasonably possible to what is behind the driver and in the driver‚Äôs path while in reverse.
I agree with those comments. ¬†I find that, in the circumstances here, the plaintiff conducted himself appropriately and was as aware as reasonably possible to what a reasonable driver should have anticipated would be in his path while reversing his vehicle. ¬†He could not have reasonably anticipated that the defendant would do what he did. ¬†
February 27th, 2013
Adding to this site’s archived cases discussing fault for pedestrian collisions, reasons for judgement were released recently addressing contributory negligence of a pedestrian struck in a marked crosswalk.
In the recent case (Bulatovic v. Siebert) the Plaintiff was struck while crossing Granville Avenue in Vancouver. ¬†She had passed the midway point of the street when struck by the Defendant who was making a left hand turn.
Although there was contradictory evidence about the circumstances of the crash the Court ultimately found that the Plaintiff lawfully entered the crosswalk with a walk signal in her favour and that there was no evidence of contributory negligence. ¬†In finding the Plaintiff faultless for the collision Mr. Justice Steeves provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†More generally, the reason for the legal protection of pedestrians in crosswalks is the significant inequality in speed and force between a motor vehicle and a pedestrian. A pedestrian is entitled to walk through a crosswalk, taking reasonable precautions consistent with having the right of way, knowing that she is safe. I find that the plaintiff took those precautions and she is entitled to the legal protection of having the right of way under section 132(1) of the¬†Motor Vehicle Act.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I also adopt the comments of a previous judgement (Hooper v. Nair,¬†2009 BCSC 862 at para. 32),
I accept the plaintiff‚Äôs submission that in order to prove that a plaintiff pedestrian was contributorily negligent, the defendant driver bears the onus of establishing not only inadequate attention on the part of the pedestrian but also must show that by the time the pedestrian realized the driver was not going to yield the right-of-way to the pedestrian, that it would at that point have been possible for the pedestrian to avoid the driver‚Äôs car. As well, the driver must show that a reasonable person in the circumstances of the pedestrian would have taken and succeeded in actions which would have avoided impact with the driver‚Äôs car:¬† Olesik v. Mackin (23 February 1987), Vancouver B860365 (S.C.); Pinto v. Rana,  B.C.J. No. 1312 (S.C.).
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said ‚ÄúWalk‚ÄĚ. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to ‚ÄúWalk‚ÄĚ. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant‚Äôs evidence that he could have looked to his left in order to see the plaintiff.
¬†¬†¬†¬†¬†¬†¬†¬†¬†It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a ‚ÄúWalk‚ÄĚ signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.
February 21st, 2013
Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision. ¬†The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision. ¬†The Plaintiff argued that the vehicle was¬†prematurely¬†destroyed and an adverse inference should be drawn that no mechanical failure took place. ¬†The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Finally, I turn to the plaintiff‚Äôs argument that ICBC‚Äôs (apparent) destruction of the Jeep ‚Äúeffectively destroyed‚ÄĚ her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court‚Äôs inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the ‚Äúreal party in interest‚ÄĚ, such that the vehicle was destroyed by a person who was¬†in effect¬†the defendant in this litigation.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I have considerable sympathy for the plaintiff‚Äôs position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant‚Äôs hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr.¬†Hidasi who requested that the vehicle not be destroyed.)
¬†¬†¬†¬†¬†¬†¬†¬†¬†On the present state of the law, it is clear that spoliation requires¬†intentional¬†conduct: see¬†St.¬†Louis v. Canada¬†(1896), 25 S.C.R. 649;¬†McDougall v. Black &¬†Decker Canada Inc., 2008 ABCA 353 at para.¬†29;¬†Endean v. Canadian Red Cross Society¬†(1998) 157 D.L.R. (4th) 465 (B.C.C.A.);¬†Dawes v. Jajcaj, 1999 BCCA 237 at para.¬†68; and the discussion in¬†Holland v. Marshall, 2008 BCCA 468 at paras.¬†70-2. (I understand ‚Äėintentional‚Äô to mean ‚Äėwith the knowledge that the evidence would be required for litigation purposes‚Äô.)¬† As stated in¬†McDougall v. Black & Decker, ‚ÄúWhen the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.‚ÄĚ¬† (Para.¬†24).
¬†¬†¬†¬†¬†¬†¬†¬†¬†The Court observed in¬†McDougall¬†that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms.¬†Chow-Hidasi. (See¬†McDougall, para.¬†25, British Columbia Law Institute,¬†Report on Spoliation of Evidence¬†(2004), at 10-20.)
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.
January 29th, 2013
As previously discussed, the circumstances of when a social host (ie – the host of a private party at a residence) can be held liable for injuries caused when an intoxicated guest leaves and causes injury to others is an open one. ¬†Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, further addressing this area of the law.
In today’s case (Lutter v. Smithson) the plaintiff was injured when a vehicle in which he was a passenger was struck by the defendant Smithson. ¬†Prior to the collision Smithson, who was 18 at the time, attended a “Bring Your Own Booze” party and became “very drunk“. ¬†The party was hosted by the Defendants Mazus to celebrate their daughter’s 19th¬†Birthday¬† ¬†The Mazus brought a summary dismissal application arguing that they cannot be held liable in these circumstances. ¬†Mr. Justice Macaualy dismissed the application finding this¬†“novel question of liability” should be decided via full trial. ¬†In doing so the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant‚Äôs property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In¬†Sidhu v. Hiebert,¬†2011 BCSC 1364, the summary judgment application judge reached a similar conclusion…
¬†¬†¬†¬†¬†¬†¬†¬†¬†Childs¬†is a very important decision relating to social host liability. In determining the sufficiency of the affidavit material here and whether it is just to decide the issues on summary judgment, a review of the principles that emerge from the case assists.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†Childs,¬†the defendant homeowners hosted a party, during the course of which they served a small quantity of alcohol to adult guests. For the most part, the event was ‚ÄúBYOB‚ÄĚ. The defendants knew that one of the guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux responded affirmatively and drove away. The accident ensued.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Childs¬†was the first time the Supreme Court considered whether social, as opposed to commercial, hosts who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests (para.¬†8).
¬†¬†¬†¬†¬†¬†¬†¬†¬†The court did not accept that the existence of a duty on the part of commercial hosts could be extended, by analogy, to the hosts of a private party (para. 23). Accordingly, the court went on to apply the first stage of the¬†Anns¬†test (Anns v. Merton London Borough Council,  A.C. 728), and concluded, for two reasons, that the necessary proximity had not been established (para. 26):
First, the injury to Ms. Childs was not reasonably foreseeable¬†on the facts found by the trial judge. Second, even if foreseeability were established,¬†no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. [Emphasis added.]
¬†¬†¬†¬†¬†¬†¬†¬†¬†Of potential significance here, the trial judge in¬†Childs¬†never found that the hosts knew, or ought to have known, that the guest who was about to drive was too drunk to do so. For that reason, foreseeability, and accordingly proximity, were not established. Although there was evidence that Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his intoxication was absent (para. 28).
¬†¬†¬†¬†¬†¬†¬†¬†¬†At first blush, Mrs. Mazu‚Äôs admission that she knew Smithson was drunk before he left the party appears to fill the foreseeability gap that the Supreme Court first identified in¬†Childs.¬†That appears to strengthen the application respondents‚Äô contention that foreseeability may be established here.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As to the second point made in¬†Childs¬†respecting the lack of a positive duty to act,¬†the hosts and guests were all adults. The court identified the lack of paternal relationship between host and guest, coupled with the autonomy of the guest, as factors that militated against imposing a positive duty to act on the hosts (see paras.¬†42‚Äď45).
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the present case, the application respondents point out that s. 33(1)(c) of the¬†LCLA¬†forbids a host permitting a minor to consume liquor ‚Äúin or at a place under his or her control.‚ÄĚ At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty. The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority.
¬†¬†¬†¬†¬†¬†¬†¬†¬†To adopt some of the language in¬†Childs,¬†found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in¬†Sidhu,¬†that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.
¬†¬†¬†¬†¬†¬†¬†¬†¬†There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a summary trial. I dismiss the application.
January 23rd, 2013
Reasons for¬†judgement¬†released recently by the BC Supreme Court, Vancouver Registry, assessing damages for various injuries sustained in a motorcycle accident.
In the recent case (Taylor v. Depew) the plaintiff was riding a motorbike which was involved in a head-on collision with a dune buggy on a narrow road near Campbell River BC. ¬†Fault was disputed with the court ultimately finding that both motorists were to blame. ¬†Liability was split with the plaintiff shouldering 30% of the fault and the defendant 70%.
The plaintiff suffered various injuries the most serious of which was a fractured femur. ¬†This resulted in ligamentous laxity in his knee. ¬† In addition to this the plaintiff suffered disc herniation’s in his low back and ultimately went on to develop chronic pain syndrome.
In assessing nonpecuniary damages at hundred and $115,000 Madam Justice Fenlon provided the following reasons for¬†judgement:
57]¬†¬†¬†¬†¬†¬†¬†¬†¬†After the accident, Mr.¬†Taylor‚Äôs life changed dramatically. In the days immediately following the accident, he underwent surgery to install a rod and pins to stabilize his femur; he remained in hospital for one week. Two further surgeries on his left leg were required: in October 2001 to remove the proximal locking screw; and in March 2003 to remove the remaining hardware in his leg. The recovery from all three surgeries was long and painful, lasting a number of weeks.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Taylor required assistance with day-to-day tasks such as cooking, cleaning and bathing during these recovery periods. After the first surgery he had the help of a homecare nurse, and then his friends Sarah Zimmer and Jamie Gonzalez assisted him. The two women helped him again after the second and third surgeries. The surgeries have left Mr.¬†Taylor with marked permanent scarring on his left hip and knee.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Before the accident, Mr.¬†Taylor had enrolled in an environmental engineering degree program to commence in September 2001. He tried to carry on with his plan to return to school but the pain killers he was taking made it difficult for him to concentrate and his general physical condition and inability to drive made it hard to attend classes. Depression set in and ultimately Mr.¬†Taylor abandoned the environmental engineering program.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Taylor has had difficulty dealing with the changes to his life caused by the accident. For a few months he turned to street drugs and alcohol. He became depressed and uses anti-depressants like Effexor to help relieve the symptoms of depression.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Although Mr.¬†Taylor has seen some improvement in the state of his injuries over time, he still experiences pain on a daily basis. When he sits, stands, or walks for long periods he suffers from pain and numbness in his left leg…
¬†¬†¬†¬†¬†¬†¬†¬†¬†Awards of damages in other cases provide a guideline only. I must apply the factors listed in¬†Stapley¬†to Mr.¬†Taylor‚Äôs particular case. I conclude that an award of $115,000 is an appropriate sum for non-pecuniary damages…