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

Street Racer Found Partly Liable for Other Vehicles Fatal Crash

March 27th, 2017

Interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a street racer partly liable for the death of a passenger in another vehicle that he did not collide with.

In today’s case (Suran v. Auckland) Cadillac and a Chrysler 300 were involved in a street race.  Police subsequently blocked off the road and the driver of the Cadillac was apprehended  The driver of the Chrysler backed up and drove around the road block and “proceeded down a steep embankment and dropped over a retaining wall, before finally coming to rest at the bottom of a ravine.”.  A passenger in the vehicle  died when”he was unable to extricate himself from the vehicle when it caught fire. His body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground.

The passenger’s family sued and both motorists were found partly to blame with the passenger himself being faulted with 25% contributory negligence.  In holding the driver of the Cadillac partly at fault for the death even though he was in police custody at the time Madam Justice Burke provided the following reasons:

[195]     I conclude Mr. Marwaha in the Cadillac and Mr. Auluck in the Chrysler 300 were engaged in a common (unlawful) course of action that ultimately precipitated the catastrophic accident and death of Mr. Suran. It was reasonably foreseeable, as argued by Ms. Suran, that participation by Mr. Marwaha in a street race at high speed on a busy street would attract police attention and action, which it did. It was also reasonably foreseeable that Mr. Auluck would flee the police as he did, based on his erratic and dangerous behaviour throughout the evening.

[196]     There is, therefore, sufficient proximity and foreseeability for Mr. Marwaha to be found partially liable for the accident. As he was indeed stopped by the police and could no longer participate in the race, I conclude Mr. Marwaha’s culpability for the accident lies at 10%.

 


BC Court of Appeal – No Reverse Onus in Bus Driver Liability Claims

January 10th, 2017

There are a line of cases suggesting that once a plaintiff passenger establishes that he or she was injured while riding on a public carrier, a prima facie case of negligence is made out.

Today reasons were released by the BC Court of Appeal finding this is not so.

In today’s case (Benavides v. ICBC) the Plaintiff was awarded damages after being injured on a bus.  At trial the Court found the driver was negligent.  On appeal the BC Court of Appeal noted that the trial judge was wrong in finding there is a reverse onus in such cases however upheld the result on the basis that there was sufficient evidence to establish driver negligence.

The BC Court of Appeal provided the following reasons setting out the principles of liability:

[17]         I draw from this review of the law the following principles:

·       The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.

·       The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.

·       Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.


Motorist Found Fully At Fault For Crash Despite Being Rear-Ended

October 13th, 2016

Although it is the exception rather than the norm, when a motorist is rear-ended they can sometimes be found partly if not fully at fault for a collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, with such an outcome.

In today’s case (Bingul v. Youngson) the Plaintiff was rear-ended by a dump-truck driven by the Defendant.  The parties had different versions of how the collision occurred but the Court noted concerns with the Plaintiff’s credibility and accepted the Defendant’s testimony.  The court found that the Plaintiff abruptly moved into the lane of traffic occupied by the Defendant when it was unsafe to do so, namely when he was stopping for an intersection up ahead.  In finding the Plaintiff fully at fault and dismissing the claim Madam Justice Baker provided the following reasons:

[53]         Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident.  I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.

[54]         I am unable to conclude that anything done or not done by Mr. Youngson constituted negligence that caused or contributed to the collision.  Mr. Youngson testified that as he was approaching the intersection with Clark Drive he anticipated having to bring his vehicle to a stop for a red light.  He braked and down-shifted and reduced his speed to 30 to 35 kph as he approached the intersection.  He testified that had Mr. Bingul not suddenly moved into his lane ahead of him, he would have able to bring his vehicle to a complete stop at or before the stop line, but that Mr. Bingul’s move reduced his stopping distance to an unsafe degree.

[55]         Mr. Bingul was aware that there was a large and heavy vehicle in the lane.  I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

[56]         I therefore dismiss the plaintiff’s claims against all defendants.


“One of Those Rare Instances in Which the Left-Turning Servient Driver is not at Fault”

September 6th, 2016

There is a mistaken belief by some that when a collision occurs at an intersection between a left turning motorist and a vehicle proceeding straight through the intersection that fault will rest with the turning vehicle.  This is often, but not always, the case.

Reasons for judgement were released today by the the BC Supreme Court, New Westminster Registry, finding a left turning vehicle faultless for such a crash due to excessive Defendant speed.

In today’s case (Theiss v. Shorter) the Plaintiff was attempting a left hand turn on an amber light when she miscalculated the on-coming Defendant’s speed and a collision occurred.  The Defendant was travelling at approximately double the posted speed limit and due to this the Court concluded fault should rest entirely with him.  In reaching this conclusion Madam Justice Baker provided the following reasons:

[45]         I found the opinions in Mr. Dinn’s report, reinforced by his response to rigorous cross-examination and some questions from the Court, to be logical, reasonable and persuasive, and the assumptions on which he based his opinions to be supported by the evidence.  I conclude that Mr. Shorter was travelling at an excessive rate of speed as he approached the intersection − probably a speed in excess of 100 kph and possibly as great as 110 kph − more than twice the posted speed limit.

[46]         Ms. Theiss commenced her left turn when the defendant’s vehicle − had it not been been travelling at an excessive speed − was sufficiently far from the intersection that it did not pose a hazard.  She could not, in my view, have anticipated that the approaching vehicle was travelling at twice the posted speed limit.  As such, and given that she was well into her turn when Mr. Shorter approached the intersection, he was obliged to yield to her.

[47]         Mr. Shorter knew, I conclude, that the light at Chancellor Avenue for traffic on Helmcken Road had been green almost from the time he entered Helmcken Road and should have anticipated that it would turn to amber or red before he reached the intersection.  He also knew that there was a southbound vehicle stopped at the intersection waiting to make a left turn.  He was aware there was no left turn light and that vehicles wishing to turn left often did so on an amber light.  Had he not been driving at an excessive rate of speed he could have stopped before entering the intersection, or had a greater opportunity to consider his options and to avoid the swerve to the right that was a contributing factor in the collision.

[48]         This is, in my view, one of those rare instances in which the left-turning servient driver is not at fault.  Ms. Theiss drove in a prudent and reasonable manner − stopping twice to check the distance from the intersection of the oncoming vehicle; and checking to ensure no pedestrians or cyclists were in the crosswalk. She was familiar with the intersection and able to make a reasonable estimate of when she could safely make it through the intersection before oncoming traffic reached the intersection.  She could not reasonably have predicted the highly excessive rate of speed at which I have concluded Mr. Shorter was travelling.

[49]         I find Mr. Shorter’s negligence in driving at an excessive rate of speed and failing to keep a proper look-out for left-turning vehicles to be the sole cause of the accident.


$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

Update July 20, 2016 – the below decision was overturned today by the BC Court of Appeal.

______________________________________

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.