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 the ‘ICBC Liability (fault) Cases’ Category

$90,000 Non-Pecuniary Assessment for Partially Disabling Chronic Pain

March 9th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain following a motor vehicle collision.

In today’s case (Swieczko v. Nehme) the Plaintiff was involved in an intersection collision in 2011.  The Plaintiff committed to the intersection on a green light but could not turn due to oncoming traffic.  The Plaintiff waited until the light turned a stale yellow and began the turn.  The Defendant, who was in the oncoming curb lane, came through on what was likely a red light and the vehicles collided.  The Court found the Defendant fully liable for the collision.

The Plaintiff sustained  soft tissue injuries which resulted in chronic symptoms.  In assessing non-pecuniary damages at $90,000 Madam Justice Koenigsberg provided the following reasons:

[40]         Mr. Swieczko suffered significant soft tissue injuries as a result of the accident.  The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities.  His prognosis is poor.  Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.

[41]         Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline.  She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.

[42]         Mr. Swieczko was 27 years old at the time of the Accident.  He is now 31.  He has been engaged in the video game industry for close to nine years.  He began as a “quality assurance” tester.  This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public.  It requires concentration and repetitive tasks.  It was described as being a form of detective work.  The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days.  This career is generally somewhat insecure, as most of the employment is on contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]         Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job.  Mr. Swieczko is obviously a talented, hard-working, ambitious young man.  He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted.  However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days.  Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.

[44]         Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now.  While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident.  The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter.  However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child.  Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain.  This in turn has required more pain medication and led to frustration.

[45]         It must be recognized that this state of affairs is costing Mr. Swieczko psychologically.  He is far less able to socialize and enjoy family get-togethers – or physical activity that he enjoyed before the Accident.  Thus, Mr. Swieczko is struggling with frustration and emotional despondency from time to time as he contemplates the immediate future, wherein he may not be able to be an active participant in his daughter’s physical recreational life.  It was clear from Mr. Swieczko’s evidence that he was taken aback by receiving his poor prognosis in relation to living relatively pain-free and being able to do what he did before.  In particular, he had ambitions of participating in such physical activities as karate with his daughter as she matures.  He is now very unlikely to be able to do this…

The most significant factor in this case making the assessment of general damages suggested by the plaintiff more appropriate than that suggested by the defendant is the severity and chronicity of pain, which combines with Mr. Swieczko’s increasing emotional struggle over the impairments to his family, marital and social relationships.  Adding to this is Mr. Swieczko’s stoicism, which, in this case, has meant he has and continues to work longer and harder to achieve his career goals, but at a significant cost in pain and resort to strong medications.

[52]         I assess his non-pecuniary damages at $90,000.


Injury Claim Dismissed Following Collision That Was “Impossible” To Recall

January 14th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving an alleged hit and run.

In today’s case (Havens v. ICBC) the Plaintiff was involved in a 2010 motorcycle collision.  He sustained a brain injury.  The Plaintiff alleged that the collision was caused through the careless actions of an unidentified motorist operating a red truck.  The Court dismissed the claim finding it was not proven, most notably accepting medical evidence that the plaintiff’s recollection was medically ‘impossible‘ given the nature of his head injury.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

[22]    ICBC obtained a report from a psychiatrist, Dr. Roy O’Shaughnessy, to address the likelihood of the plaintiff being able to recall the accident reliably after receiving the blow to the head.  He referred to the plaintiff’s memory as being “recovered memory”, which is memory that occurs much later after the fact.  Dr. O’Shaughnessy opined that Mr. Havens’ reported memory is not consistent with the physiology of memory in two ways.  The first was that:

… he states he has developed a memory of being struck in the head by lumber extending out the rear of a pick-up truck that he states was in the lane beside him and crossed into his lane. He then recalls seeing the pick-up truck passing by him in his lane before becoming unconscious. This is physiologically impossible. If he were to have received a blow to the helmet or head that would have rendered him unconscious, it would have occurred immediately with impact and not some time later. He would not have been able to recall seeing the red pick-up truck pass by him and enter into his lane as he believes he recalled. Invariably any blow to the head of such a nature to cause unconsciousness does so immediately post blow. Were he to have actually been struck in the head, he would not have recalled anything post impact and would certainly not have recalled seeing the red pick-up truck accelerate away from him.

[23]    The second is that when he was admitted to the hospital, Mr. Havens had an impaired Glasgow Coma Scale of 7 out of 15.  Given that, it would have been impossible for him to have laid down long-term memory after the blow to the head:

… If there is a disruption in the person’s abilities to attend, focus, or concentrate, they will not be able to lay down memory or recall it at a later date. Individuals who have suffered a head injury of this magnitude will invariably experience impairment in their capacity to attend or concentrate such that the memory will never have been laid down in the first place and it is not “recoverable” at a later date.

[50]    I accept the evidence of Dr. O’Shaughnessy that it would have been impossible for Mr. Havens to be able to recall the accident.

[51]    That would be sufficient to dismiss the action, but the other inconsistencies in Mr. Havens’ evidence and the evidence of the other witnesses confirm that conclusion.


BC Court of Appeal Confirms Negligence for Passing Vehicle Blanketing Others in Snow

December 16th, 2015

Reasons for judgement were released today by the BC Court of Appeal confirming that a motorist can be negligent by passing others in poor conditions therby blanketing the other vehicles in snow.

In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

At trial the Defendant vehicle was found at fault for the collision.  ICBC’s appeal was dismissed with the BC Court of Appeal finding negligence can exist in these circumstances.  The Court provided the following reasons:

[12]        It appears to me it was clearly open to the judge to find that the speed of the SUV was excessive for the conditions. The plaintiff was travelling 40 to 60 kilometers per hour and, on his examination for discovery (the whole transcript of which ICBC put in evidence), he said the SUV “roared right by” and suggested it was twice as fast as he was “putting along”. He agreed that could have been 100 kilometers an hour, although he said he could not speculate because it all happened so fast. There was, of course, no evidence to the contrary and common sense dictates that, as any driver would know, the greater the speed of a vehicle the greater the amount of snow it may throw up when changing lanes on a snow-covered highway. It simply could not be said that if the SUV had passed more slowly and had not cut in front of the Jaguar as quickly as it did, the windshield of the Jaguar would have been completely obscured as it was. The speed of the SUV was excessive for the conditions because of the effect its speed had.

[13]        In my view, no error has been shown in the judge’s concluding that, in what he described as the “treacherous” conditions prevailing, the driver of the SUV had not met the standard of care required of him in the circumstances. That vehicle was required to be operated with due care and attention and with reasonable consideration for the plaintiff who was driving the Jaguar at a slow speed in the right-hand land. If undertaken, the passing and change of lanes was required to be done safely without adversely affecting the travel of that vehicle. It was open to the judge to conclude as he did the driver of the SUV knew or ought to have known the risk that was inherent in his operating that vehicle as he did. Clearly the standard of care was breached.

[14]        It follows that I would dismiss the appeal.


No Negligence Found in Case of Failed Emergency Brake

November 23rd, 2015

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.

In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.

He sued the vehicle owner alleging negligence.  The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[18]        The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.

[19]        In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.

[20]        Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.

[21]        An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.

[22]        In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:

[175]    ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.

[23]        There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.

[24]        There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.

[25]        In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.

[26]        The action must be dismissed with costs.


Failing to Overtake Traffic “As Quickly and as Reasonably As Possible” Found Negligent

October 22nd, 2015

Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that it is negligent for a motorist to not drive ‘as quickly and as reasonably as possible‘ when overtaking another vehicle on a highway.

In today’s case (Borgiford v. Thue) the Plaintiff vehicle was in the left hand lane of a highway overtaking tractor-trailers who were travelling at a low rate of speed as they ascended a steep hill.  The Plaintiff vehicle’s motorist was a ‘timid’ driver and was overtaking the slow moving vehicles at a speed of 85 kmph despite a speed limit of 110 kmph.  At the same time a Suburban approached the vehicles at a high rate of speed, clipped one of the slow moving tractor-trailers and lost control resulting in apparent profound injuries to his passengers.

The Court found the speeding motorist clearly negligent but went on to find the slow passing plaintiff vehicle was also negligent for not passing the tractor trailers as quickly as possible.  In reaching this finding Mr. Justice Rogers provided the following reasons:

[99]         In my view, the standard of care owed by a reasonable and prudent driver in Mrs. Boizard’s situation required that hypothetical driver to overtake Mr. Einarson’s unit as quickly as reasonably possible. I find that is the standard because the speed limit on the highway was 110 kph and any reasonable operator on that road would have known that motorists often go faster, sometimes much faster, than the speed limit. A reasonable driver in Mrs. Boizard’s situation would have known that for so long as he was in the left-most lane the entire width of the highway was occupied by relatively slow moving traffic. A motorist approaching from the rear and traveling at 110 kph would find his way blocked by the slower vehicle in the left-most lane.

[100]     I must therefore ask myself: was Mrs. Boizard overtaking Mr. Einarson as quickly as reasonably possible? Here Mr. Fiorin’s opinion does not really help Mrs. Boizard. That is because the key element of Mr. Foirin’s opinion is that operators of large vehicles are entitled to take steps to keep up the momentum of their units as they ascend a hill. That may be true, but it does not apply to Mrs. Boizard. That is because on Mrs. Boizard’s own evidence the pickup truck she was driving was capable of going up Larson Hill faster than 85 kph. This was not a case of the Boizard truck struggling to keep up its speed of 80 to 85 kph. This was a case of Mrs. Boizard making a conscious and deliberate decision to not go faster than 85 kph.

[101]     I do not doubt Mrs. Boizard’s sincerity when she testifies that she felt that it was safer to go 85 kph while passing Mr. Einarson. However, her subjective opinion cannot carry the day. The real question is whether a reasonable and prudent motorist in her situation could have and would have overtaken Mr. Einarson more quickly. The evidence does not satisfy me that a higher speed for the camper while passing would, in fact, have created an unsafe circumstance for either the Boizards or Mr. Einarson. I am thoroughly satisfied, however, that clearing the left-most lane would have created a safer circumstance for other motorists approaching from the rear. Put another way, the less time that Mrs. Boizard stayed in the left-most lane, the safer it would be for other, faster traveling, motorists who also wished to overtake Mr. Einarson’s unit.

[102]     In short, I find that Mrs. Boizard was a timid driver – she could have driven her camper faster and could have overtaken Mr. Einarson’s tractor-trailer more quickly. Instead, Mrs. Boizard chose to drive at a relatively leisurely pace and in so doing, she blocked the left-most lane for a longer period of time than was reasonably necessary. I find that Mrs. Boizard’s decision to drive as slowly as she did and to occupy the overtaking lane for as long as she did fell below the standard of care that she owed to other users of the highway. I find that she was negligent in that regard.

[103]     The question now arises whether either of Mrs. Boizard’s negligent acts was a cause of the accident. As we know from Athey it is not necessary that Mrs. Boizard’s negligence be the sole cause of the accident. The law is also clear that causation is not determined by which of the defendants had the last clear chance to avoid the mishap. All that is necessary is for Mrs. Boizard’s negligence to be a cause; that is to say, but for her negligence, the accident would not have happened.

[104]     In my view, the link between Mrs. Boizard’s negligence in changing lanes as she did is too weak to support a finding that that particular act caused the accident. I have come to that conclusion because the Thue Suburban was not in sight when Mrs. Boizard changed lanes. The Suburban came around the first curve on Larson Hill after Mrs. Boizard was in the left-most lane. The lane change itself did not put Mr. Thue and his passengers in jeopardy.

[105]     However, had Mrs. Boizard accelerated her camper to a reasonable overtaking speed, she would have blocked the overtaking lane for a shorter period of time. Given that when the accident happened the camper was at the junction between Mr. Einarson’s tractor and trailer, it would not have taken much more speed on Mrs. Boizard’s part to have gotten past Mr. Einarson ahead of Mr. Thue’s arrival. In my opinion, there is a sufficient causal link between Mrs. Boizard’s decision to overtake at a leisurely pace and the accident to support a finding that but for that decision, the accident may not have happened. Put another way, in order for the accident to have happened the way it did, it was necessary for Mrs. Boizard to have blocked the overtaking lane.


Bus Driver Liable For Driving Over Dip at Excessive Speed

June 19th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for an injury to a bus passenger.

In today’s case (Hutchinson v. Dyck) the Plaintiff was a passenger on a bus.  As the bus drove the plaintiff “was ejected upwards from his seat and hit the seat on the way down.”.  He suffered a burst injury in his low spine which resulted in chronic mechanical back pain.

The bus driver denied fault for the incident arguing he drove with reasonable care but the Court rejected this finding he drove with excessive speed over a depression in the road which caused the injury.  In reaching this conclusion Madam Justice Duncan provided the following reasons:

[23]         The defendant was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff is not expected to assume any risk associated with the operation of the bus which could not reasonably be anticipated by a passenger on the bus. The usual route along Grace Road would not cause a passenger to be thrown up off his seat in such a violent fashion.

[24]         The defendant believed he was travelling 30 kilometres per hour when he hit the dip, but he made no note of that or other salient details on the incident form. The first time his estimate of 30 kilometres per hour was recorded came at his examination for discovery. This was an important detail which should have been noted on the incident form. The defendant was aware someone had been injured after he hit the dip in the road. The ambulance attended and took the plaintiff away. It was not a trivial matter. The defendant’s recollection of his speed well after the incident is not credible.

[25]         In addition, the defendant agreed he noted on the incident report form that he knew there was a bump in the road but could not see how deep it was due to the dark and rain prevailing at the time. In other words, he saw it but did not approach it in such a fashion as to judge it properly. The defendant’s recollection of the conditions as dark and rainy are at odds with photographs taken by his supervisor shortly after the incident was called in. While it would obviously be more light out as the morning progressed, the photographs do not depict a roadway soaked with heavy rain, further calling into question the defendant’s recollection of how the accident occurred.

[26]         In all the circumstances, I find the defendant was travelling faster than he thought on a stretch of road he knew contained a dip. He was going too fast to fully appreciate how significant a dip it was and too fast to take evasive action and brake to minimize the impact once he saw the dip. On balance I am not satisfied the defendants have shown the driver conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit and I find the defendants negligent.


BC Court of Appeal Clarifies Limits of “Rescuer” Law

May 26th, 2015

The law recognizes that if a person’s negligence puts one in peril, a rescuer injured in the course of rescue can claim damages against the person who created the peril.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of rescuer law.

In today’s case (Ray v. Bates) the parties were involved in a motor vehicle collision in icy conditions.  The Plaintiff claimed the collision was caused by the Defendants negligence.  Following the collision the Plaintiff slipped and fell while walking with the intention of asking first responders to contact road maintenance authorities to get the icy road salted or sanded.

The Plaintiff argued the Defendant was responsible for the slip and fall as he was acting as a ‘rescuer’ at the time.  In upholding a trial dismissal of the claim the BC Court of Appeal provided the following reasons addressing the scope of the rescuer principle:

[14]        The rationale for special treatment of rescuers is that where a person’s negligence puts another person (or him/herself) in peril, it is entirely foreseeable that a bystander will react by attempting to eliminate the peril. The classic statement of the doctrine is that of Cardozo J. in Wagner v. International Railway Co. (1921), 232 N.Y. Rep. 176 at 180, 133 N.E. 437 at 437-8:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

[15]        In Videan v. British Transport Commission, [1963] 2 Q.B. 650, at p. 669, Lord Denning, M.R. said:

Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.

[16]        These pronouncements were cited with approval by the Supreme Court of Canada in Horsley v. MacLaren, [1972] S.C.R. 441 at 444 and 467, and in Corothers v. Slobodian, [1975] 2 S.C.R. 633 at 638‑9 and 640‑41. They were also cited in Martin v. American International Assurance Life Co., 2003 SCC 16.

[17]        In Toy v. Argenti (1980), 17 B.C.L.R. 365 at 371-2, Esson J., as he then was, adopted statements describing the contours of the rescuer doctrine by Lord Jamieson of the Scottish Court of Sessions (Inner House) inSteel v. Glasgow Iron and Steel Company, [1944] S.C. 237 at 267:

[T]he following propositions … may be extracted …: (1) The intervention of human action does not necessarily per se break the chain of causation between the negligence and the injury sustained. (2) To entitle the sufferer to damages, such intervention must have been reasonable and such as might have been in the contemplation of the wrongdoer. (3) In determining what is reasonable in the circumstances the interests sought to be protected must be measured in comparison with the risks involved in the action taken. (4) If the action taken is reasonable, the injured person will not be debarred from recovering damages by his not having adopted the best possible course in the circumstances, or by his having made a mere error of judgment: but he will be debarred if his action is unreasonable and unwarrantable and outside the exigencies of the emergency: and (5) It is not essential that the action should have been taken on the impulse of the moment. The same result will follow if it arises from a natural response to avert danger after time for deliberation on the consequences of the risk taken.

To these I would add that, as the instinct to save human life is greater than the instinct to save property, a hazardous intervention for the former purpose is more likely to be a natural and probable consequence of a negligent act than one for the latter, and in the reasonable contemplation of the wrongdoer.

[18]        While Steel was not a common law case, I accept, as did Esson J., that the propositions referred to are also applicable in the common law.

[19]        There are a number of British Columbia cases in which plaintiffs have attempted to recover for slip and fall injuries that occurred while walking along roads in the aftermath of motor vehicle accidents. In Goodman v. Baxendall (1991), 8 B.C.A.C. 144, the plaintiff was involved in a motor vehicle accident on a hill. After the collision, in order to warn approaching traffic that there were stopped vehicles on the highway, she walked up the hill, but slipped and fell, resulting in personal injury. The trial judge denied recovery, holding the injury was not caused by the defendant’s negligence. This court allowed an appeal, saying at 146-7:

[T]he proper approach here is to ask whether it was reasonably foreseeable that following an accident such as this and in these circumstances someone ought to walk up the roadway, and would walk up the roadway, to warn oncoming traffic of the danger of the vehicles on the roadway over the crest of the hill and, that being so, was it reasonably foreseeable that in those conditions that person could slip, fall and sustain further injury? The trial judge found the plaintiff walking up the highway was a sensible thing to do. That being so, in my opinion it follows that what happened here was reasonably foreseeable as a consequence of the negligence of the driving of the defendants and they are, as a result, responsible in law for this slip and fall and the consequent damages.

[20]        On the other hand, in Schlink v. Blackburn (1993), 109 D.L.R. (4th) 331 (B.C.C.A.), the plaintiff’s wife was involved in a motor vehicle accident outside their home. The plaintiff ignored the accident until he learned that his wife was involved, at which time he rushed out of his house, tripping on the way out and injuring his ankle. The trial judge awarded damages, treating the case as a rescue case. This court disagreed, saying at 339:

This is not a “rescue case” any more than it is a “nervous shock” case. There is no evidence of danger, escape from entrapment, risk of death from delayed treatment or otherwise which would support such a classification. Accordingly, the “rescue case” authorities cited to us must be distinguished along with the authorities dealing with “nervous shock” cases.

[21]        Finally, I will refer to Bridge v. Jo (1998), 53 B.C.L.R. (3d) 338 (S.C.), in which a woman went to assist a person involved in a motor vehicle accident. After attending on the accident victim, she concluded that she should call an ambulance. While walking down the icy road toward her home to do so, she slipped and fell. Mr. Justice Boyle found that it was reasonably foreseeable that the defendant’s negligence would result in an injury to a rescuer, and found for the plaintiff.

[22]        In rescue cases, the law does not find the chain of causation to be broken by the rescuer’s actions because they are considered to be foreseeable consequences of the peril created by the negligence. In order for a plaintiff to bring him or herself within the principles applicable to rescue cases, therefore, the plaintiff must demonstrate that his or her actions were motivated by a reasonable perception of a peril that was caused by the defendant’s negligence.

[23]        In my opinion, the plaintiff fails to meet this requirement in two respects. First, the plaintiff could not reasonably have perceived a peril in the circumstances of this case. Everything was under control, and there was no reason to believe that road maintenance authorities had not been advised of the situation. This is what the judge meant when he said “Whatever else may be said of the plaintiff’s decisions, it cannot be said that he needed to walk to the ambulance to summon road maintenance personnel when all of the emergency personnel described were already in attendance.” He was not applying a standard of necessity in rescue cases, but rather was making a finding that there was no purpose to be served by the plaintiff walking on the road.

[24]        The plaintiff’s claim to be a “rescuer” in this case must also fail because any peril that the plaintiff was attempting to alleviate was one that was unconnected with the accident. This was not a case (like Bridge) where the plaintiff was attempting to assist a victim of the accident, nor was it a case (like Goodman) where he was attempting to reduce the danger posed to other drivers by the detritus left by the accident. The plaintiff was attempting to contact road maintenance officials to deal with the slipperiness of the road. That problem was purely a product of weather conditions, and not of the accident.


65/35 Fault Split Following Vehicle / Bicycle Collision

April 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry addressing fault for an intersection collision between a motorist and a cyclist.

Blanca and Drummond

In today’s case (Matkin v. Hogg) the Plaintiff was travelling on a bicycle Northbound on Blanca Street in Vancouver.  At the same time the Defendant was operating a vehicle travelling in the same direction.  While the Defendant was turning at a stop sign controlled intersection the Plaintiff drove past the vehicle and both collided.  The Defendant did not signal his intended turn and the Plaintiff failed to appreciate there was a stop sign at the intersection.  In finding the cyclist 65% at fault with the motorist shouldering 35% of the blame Mr. Justice Kent provided the following reasons:

[63]         Adopting a robust and pragmatic approach to the evidence and to the circumstances of the collision, I find as a fact that the following sequence of events occurred:

•           Mr. Hogg’s vehicle was parked on the eastside of the road approximately halfway down the block between 2nd Street and Drummond Drive;

•           While it was not completely dark, it was dusk and the street lights were on;

•           Mr. Hogg started his vehicle, thereby illuminating his running lights, and also turned on his headlights and checked his mirrors before pulling out onto the road;

•           When he checked his mirrors he did not see any of the cyclists further up Blanca Street;

•           He travelled north, slowed at the stop sign, likely performed a rolling stop in the absence of any visible traffic from any other direction and once in the intersection started to make a turn to the left in order to complete his intended turn-around maneuver;

•           In the meantime the plaintiff was proceeding northbound down the hill on the Blanca Street towards the intersection and towards Mr. Hogg’s car at approximately 20 km/hr;

•           She was unaware of the existence of a stop sign at the intersection and had not noticed the “stop sign ahead” sign posted further up Blanca Street;

•           Thinking there was no traffic around him, Mr. Hogg did not activate his left turn signal before starting his u-turn maneuver;

•           As she approached the intersection on her bike, the plaintiff formed the impression that the Hogg vehicle ahead of her was going to continue through the intersection in a northbound direction on Blanca Street;

•           At the time she was travelling faster than the Hogg vehicle and the distance between them was closing rapidly;

•           She did not see the stop signal, did not in fact stop or brake, but simply continued to ride over the putative stop line and into the intersection intending to travel north beside or close behind the Hogg vehicle;

•           When the Hogg vehicle started its left turn maneuver in the intersection, the plaintiff simply had no time to take any effective evasive maneuvers and her bike collided with the front left fender of the Hogg vehicle in the vicinity of the wheel well, launching her from her bike and onto the road; and

•           Mr. Hogg either did not check his mirrors at the stop sign and before commencing his turn, or did so and simply failed to see the plaintiff on her bike travelling behind him, but either way there was sufficient illumination from the diminishing daylight and the illuminated street lamps for her to have been visible to Mr. Hogg.

[64]         It follows from these findings of facts that the collision was caused by the actions of both the plaintiff and the defendant. What remains is the manner in which fault should be ascribed and allocated between the two…

[74]         In terms of assessing the relative degrees of fault of the parties, I conclude that the plaintiff’s conduct attracts more blame than that of the defendant’s. Both had similar duties of care vis-à-vis each other but the plaintiff was particularly careless of her own safety. Riding a bike at night on city streets without a light and without a helmet creates a grave risk indeed. It was also deliberate rather than accidental conduct on her part. Further, since she was behind the Hogg vehicle for some period of time before the actual collision, she had a greater opportunity to prevent the accident.

[75]         Pursuant to s. 6 of the Negligence Act the determination of degrees of fault is a question of fact. Based on the totality of the evidence and the considerations referred to above, I find as a fact that the fault for causing this accident rests 35% with the defendant and 65% with the plaintiff herself. Whether that allocation of fault to the plaintiff should be further increased (and the defendant’s liability to make good plaintiff’s loss should be further reduced) by further conduct on her part which increased the extent of loss or injury arising from the accident, e.g. the failure to wear a helmet, is a matter the parties have agreed will be determined at the trial of the damages portion of the case.


Pedestrian Struck in Cross Walk Faultless for Collision

March 23rd, 2015

Reasons for judgement were released today addressing whether a pedestrian struck in a cross walk bared any responsibility for their collision.

In today’ case (Gulati v. Chan) the Plaintiff entered a crosswalk when the Defendant motorist coasted through a stop sign and struck the Plaintiff.  The Defendant admitted partial fault but argued the Plaintiff should shoulder 10-20% of the blame for failing “to avoid his on-coming vehicle which, he maintains, was a visible and foreseeable risk to her.”  In rejecting this argument and finding the Defendant fully at fault Mr. Justice Gaul provided the following reasons:

[23]         Mrs. Gulati says she looked to her right and left before entering the crosswalk. At that time, she did not see any vehicular traffic coming in her direction. When she was approximately half way across the crosswalk she saw Mr. Chan’s vehicle approaching the nearby intersection that was controlled by stop signs. According to Mrs. Gulati, the vehicle was approximately 4 to 5 car lengths away from her when she first saw it. To Mrs. Gulati’s surprise, the vehicle did not stop at the stop sign; instead it turned left and struck her while she was in the crosswalk.

[24]         Mr. Leverett was standing at the southern end of the crosswalk, directly in front of the stop sign for the intersection. He saw Mrs. Gulati exit the Mall and stand at the northern end of the crosswalk. He saw her look both ways and then proceed into the crosswalk. According to Mr. Leverett, there was no vehicular traffic in the vicinity when Mrs. Gulati began to cross the road. Mr. Leverett saw Mr. Chan’s vehicle approach the stop sign. It appeared to Mr. Leverett that Mr. Chan was not paying attention to what he was doing, because his vehicle coasted through the stop sign. Mr. Chan’s vehicle then accelerated and collided with Mrs. Gulati who was still in the crosswalk.

[25]         Constable Lorne Smith of the Surrey RCMP attended at the scene of the Accident shortly after it occurred. While he was there, he spoke with Mr. Chan. According to Constable Smith, Mr. Chan said he had been leaving the Mall’s parkade, had not seen Mrs. Gulati in the crosswalk and had collided with her when she suddenly appeared in front of his vehicle. The officer issued Mr. Chan a violation ticket alleging that he had been driving without due care and attention and had failed to yield to a pedestrian contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “MVA”). Mr. Chan did not dispute the violation ticket…

9]         I accept the evidence of Mrs. Gulati and Mr. Leverett with respect to how the Accident occurred. In particular I am satisfied that Mr. Chan was not paying attention when he was driving and that he did not bring his vehicle to a stop when he should have. Instead, without any notice or warning to Mrs. Gulati who was legally crossing the road, Mr. Chan proceeded through the stop sign and turned left, leaving Mrs. Gulati with no time to react and avoid the collision. It was not unreasonable for Mrs. Gulati to believe that Mr. Chan’s vehicle would stop at the stop sign and it cannot be said that a reasonable person would have anticipated his decision to breach the rules of the road in the manner that he did.

[30]         In my opinion, Mr. Chan is 100 percent liable for the Accident.


Motorist at Fault For Collision With Scooter During U-Turn

March 3rd, 2015

Reasons for judgement were released today addressing fault for a collision involving a vehicle conducting a U-turn.

In today’s case (Longford v. Tempesta) the Plaintiff was operating a scooter and was travelling behind the Defendant’s vehicle.  The Defendant “put on his brakes aggressively” and the Plaintiff then stopped.  The Defendant then “went to the right parking lane and stopped, aggressively applying his brakes again, and then hesitated.“.  The Plaintiff then proceeded to pass the Defendant who then commenced a U-turn and the vehicles collided.

In finding the Defendant 100% responsible Madam Justice Hyslop provided the following reasons:

[34]        I find that the plaintiff could not have anticipated that the defendant, after briefly stopping, would then turn in front of her. Nor do I find that she had enough time to observe the defendant’s actions and avoid the accident.

[35]        The plaintiff did not state that the defendant was driving erratically when he stopped aggressively in front of her and when he parked. The defendant in his written argument, states:

14.       The Plaintiff in her statement seems to have assumed that the Defendant had missed his turn, was driving erratically and ought to have anticipated some other erratic move from the Defendant and driven accordingly.

15.       Further, the physical evidence of where the collision took place is more consistent with the Defendant’s version of events than the Plaintiff’s. Impact occurred very near the centre of the road when the Defendant’s vehicle had almost left the west bound lane. This would mean for the Plaintiff’s version to be correct the Defendant would had to have started from a complete stop accelerated through a turn and almost completed it before the Plaintiff arrived at the impact site.

[36]        This does not coincide with the defendant’s evidence that he was three quarters of the way in his driveway, having crossed the eastbound lane.

[37]        In Rai v. Fowler, 2007 BCSC 1678, Madam Justice Holmes stated:

[34]      In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.) at 195-6, Madam Justice Southin noted that drivers are entitled to assume that other drivers will obey the rules of the road, and are required to anticipate, in other drivers, “only those follies which according to the teachings of experience commonly occur”. By implication, and as explained in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 461 from which Southin J.A. quoted, a driver may bear liability if he or she became aware of another driver’s disregard of the law, or by the exercise of reasonable care should have become aware, and unreasonably failed to avoid the accident that followed from that disregard.

[38]        When the defendant stopped aggressively in front of the plaintiff, she slowed down and was able to stop. I find there was no erratic driving on the part of the defendant such that she could anticipate that the defendant would perform a U-turn in front of her.

[39]        I conclude that the defendant stopped as he realized that he had overshot the driveway to his workplace. I find he then went to the right, stopped again as to park, intending to go into the driveway and, in doing so, crossed the path of the plaintiff on her scooter. At no time did the defendant observe the scooter and he should have. I find that the plaintiff has met the burden of proof and that the defendant was negligent when he turned from where he was parked and into the path of the plaintiff driving her scooter. The defendant is 100% responsible for the accident. The defendant’s actions were negligent.