BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

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Archive for the ‘ICBC Liability (fault) Cases’ Category

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.


Motorist Faulted For Crash After Driving Too Fast In Foggy Conditions

January 19th, 2015

Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, assessing fault for a fatal collision which occurred during foggy conditions.

In today’s case (Roy v. McGinnis) the Plaintiff was driving a motor home which had stopped at a T intersection approaching a highway.  The Plaintiff attempted to turn left on the highway.  The area was covered in dense fog and visibility was poor.  The Plaintiff failed to appreciate that the Defendant was travelling down the highway as the Plaintiff entered the intersection.  Both motorists were found equally to blame for the crash, the Plaintiff for entering an intersection when it was unsafe to do so and the Defendant for failing to drive safely given the conditions.  In reaching a conclusion of equal blame Mr. Justice Groves provided the following reasons:

[30]         I conclude that on November 25, 2004, by operating his loaded tandem truck at a speed of at least 90 to 100 km/h when the visibility was limited to less than 100 feet due to dense fog, such that an operator driving reasonably for the road conditions would more likely have driven at close to 50 km/h, the defendant operated his vehicle in a negligent manner in that he breached the standard of care established by s. 144(1) of the Motor Vehicle Act by operating a vehicle at an excessive speed considering the visibility and weather conditions.  I further conclude that this negligence was at least a partial cause of the accident in that, but for the unreasonable and excessive speed at which McGinnis was operating his vehicle, McGinnis could have avoided the impact with Roy’s vehicle, just as Smith had avoided impact when travelling at 50 km/h.

[31]         In so concluding, I note the defendant’s argument and supporting case law that, as a servient driver turning into a lane where the defendant had a right of way, the plaintiff bears the onus of proving that a reasonable and skillful driver would have had sufficient opportunity to avoid a collision (Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 at 461).  Here the collision occurred over a very short period of time; however, I have found above that a reasonable driver would have been travelling much slower and so would have had more time to perceive the danger.  I therefore find that the plaintiff has met his burden of proving that a reasonable and skillful driver would have had a sufficient opportunity to avoid the collision.

[32]         I also find that the plaintiff was negligent…

[36]         As such, I conclude that the plaintiff was negligent in that he failed to comply with s. 175(1) of the Motor Vehicle Act, when he entered a through highway and in doing so failed to exercise appropriate caution and to yield the right of way to traffic, traffic which was so close so as to constitute an immediate hazard.

[37]         However, based on the evidence before me, I cannot draw any particular conclusion as to the relative level of negligence of these two negligent drivers.  Better put perhaps, I cannot conclude based on the evidence before me which driver was more negligent.  On the one hand, the plaintiff was clearly the servient driver, but on the other hand, the defendant was, I find on the evidence which I accept, driving at a speed far in excess of what would have been safe for the road and weather conditions he encountered on that day.  

[38]         As such, relying on s. 1(2) of the Negligence Act, R.S.B.C. 1996, c. 333, I apportion liability between the plaintiff and defendant equally.  As such, the defendant is 50% responsible for the damages resulting from the accident and the plaintiff is 50% responsible for the damages resulting from the accident. 


Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

December 26th, 2014

Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.

In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.

The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 


Bus Driver Partly Liable For Passenger Injury After Stopping Too Far From The Curb

November 26th, 2014

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, finding a bus driver partly liable for injuries after a passenger fell while disembarking the bus.

In the recent case (Isaacs v. Coast Mounatain Bus Company Ltd) the Plaintiff fell while getting off the bus.  At the time the bus stopped some 12-14 inches from the sidewalk contrary to their policy of stopping closer to the curb.   The Plaintiff attempted to jump to the curb resulting in injury.  The Court found both parties equally to blame for the incident.  In holding the Defendant 50% liable Madam Justice Watchuk provided the following reasons:

[47]         If the distance of the front door of the bus from the curb was greater than ten inches, there is potential negligence on the defendants.  As stated above, Translink has in place guidelines for a standard bus stop that state that buses should be stopped parallel to the curb and within six to ten inches of that curb.  However, the defendants’ negligence is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented themselves at the time of this specific accident (Heyman v. South Coast British Columbia Transportation Authority (c.o.b. Translink), 2013 BCSC 1724 at para. 68). 

[48]         Although the defendants’ policy directive is not determinative, in light of these specific circumstances I find that the policy of stopping less than ten inches away from the curb reflects the standard of care required by a reasonably prudent bus driver.  Thus, if the distance between the front door and the curb was greater than ten inches, there would be a prima facie case of negligence and it would be for the defendants to establish that the plaintiff’s injuries occurred without negligence on their part or due to a cause for which the defendants were not responsible. 

[49]         Ms. Isaacs’ evidence is that the bus came to a stop at an angle with the front of the bus further from the curb than the back of the bus.  Her evidence was that the distance from the bottom step to the curb was 12-14 inches.  In cross-examination she disagreed with the statement that the distance was only six inches from the curb, and responded, “Oh no – it was wider, quite wide”.  This is consistent with her evidence that when she was on the sidewalk after the fall, Ms. Isaacs observed that the rear of the bus was closer to the sidewalk than the front. 

[50]         I accept Ms. Isaacs’ evidence in this regard.  I have noted that her memory of the number of steps at the front of the bus is incorrect, as she recalled one step at the front when there are three steps on this type of bus.  However, other than this point, her evidence with regard to the location of the bus when it was stopped is persuasive and is consistent with the other details of the scene at the time of her fall. 

[51]         The evidence of Mr. Payne is, I find, evidence of his usual good practice with regard to stopping the bus with the front and rear exits at an equal distance, and six inches from the bottom of the steps to the curb.  However, his evidence with regard to this stop is internally inconsistent.  He testified that he drives the bus straight in the curb lane.  He also testified that he angles the wheel to the left prior to the stop so that he is ready to pull out into traffic when the bus leaves the stop.  On the evidence of this stop of this bus prior to this incident, I find that Mr. Payne angled the steering wheel to the left prior to the bus coming to a complete stop.  Thus the front of the bus and the front door were further from the curb than the back of the bus and the back door. 

[52]         I accept Ms. Isaacs’ evidence that the bottom step of the front door exit was 12-14 inches from the curb, and therefore greater than ten inches from the curb.  I accept her evidence that the distance is the reason that she jumped from the bottom step to the curb rather than going down the bottom step to the pavement, crossing and stepping up on the curb to the sidewalk. 

[53]         That the bus was parked further than ten inches from the curb is contrary to the defendants’ internal policy.  In these circumstances it was a breach of the defendants’ standard of care owed to the plaintiff. 

[54]         A further breach of the defendant Mr. Payne is that, having stopped the bus further than ten inches from the curb, he did not warn Ms. Isaacs of the potential hazard being the excess distance.  Although he considered a warning as he observed her moving quickly, he decided not to startle her.  Given his observations, when he saw Ms. Isaacs exiting without use of the railing at more than 10 inches from the curb he should have provided a warning. 


Driver Found 60% At Fault for Rear End Crash After Failing to Activate Hazard Lights

November 6th, 2014

The BC Court of Appeal released reasons for judgement today upholding a trial judgement finding a motorist who was rear-ended 60% liable for the collision for failing to have their hazard lights activated prior to the crash.

In today’s case (Langille v. Marchant) the Plaintiff was involved in a crash which left her vehicle stopped in the middle lane of a bridge.  A few minutes later her vehicle was rear ended.  The BC Court of Appeal found it was not unreasonable for the Plaintiff to have not moved her vehicle prior to the second collision, but that the failure of her to activate her hazard lights was negligent and upheld the trial finding placing 60% of the blame on this omission.

In reaching this conclusion the Court of Appeal provided the following reasons:

[19]         Activating emergency flashers is a step Ms. Langille certainly could have taken. It was open to the trial judge to find that it was negligent on the part of Ms. Langille to obtain particulars from the other driver before ensuring the safety of the location of the accident, or at least improving the situation for oncoming drivers by activating her flashers. It was also open to the trial judge to find doing so would have reduced the likelihood of impact or the severity of the impact that occurred. That is the logical implication of the finding that Ms. Marchant’s late recognition of the hazard caused or contributed to the accident. The activation of flashers would have made Ms. Langille’s car more visible and made it harder for Ms. Marchant to fail to notice its presence or note earlier that it was not moving, and to take earlier evasive measures.

[20]         As this Court noted in Hansen v. Sulyma, 2013 BCCA 349, when considering the trial judge’s assessment of causation in a similar case:

[29]      I do not read the trial judge in this case… as having found that this was one of those exceptional cases in which the “but for” test is to be “relaxed” by recourse to a “material contribution to risk” test. Rather, the trial judge was using “contribute to” in the traditional sense and in my respectful opinion, did not err in doing so. Certainly on a “robust and pragmatic approach”, it was a reasonable conclusion that if Mr. Sulyma had activated his hazard lights, Mr. Leprieur would likely have been alerted to the presence of the Honda and would have had adequate, or more, reaction time in which to decelerate. Even if deceleration would not have totally avoided the impact but would only have reduced Ms. Hansen’s injuries, the “but for” test was still met.

[21]         I would not disturb the trial judge’s findings that it was negligent to turn off the car and leave only its running lights on in the middle of a busy bridge at night in a location where one would not expect vehicles to be stopped, nor would I disturb the finding that the negligence contributed to the accident.

[22]         The appellant argues that in apportioning liability the trial judge failed to recognize that the primary responsibility for avoiding rear end collisions rests with the driver approaching from the rear. In my view, it is clear from her reasons for judgment that the trial judge recognized that rule; she found the defendant negligent and liable, before going on, as she was required to do, to consider the plaintiff’s conduct. Having found the plaintiff contributorily negligent she was required to address the relative degrees of blameworthiness of the parties.

[23]         When she weighed the parties’ relative degrees of blameworthiness the trial judge was clearly of the view that the plaintiff’s conduct in failing to protect herself and other drivers after the first collision was more blameworthy than the defendant’s conduct. The trial judge found the defendant to have been momentarily inattentive in the face of an imminent, and relatively difficult to discern, peril. The plaintiff, on the other hand, attended to inspection of damage and attempted to exchange information with Mr. Masahiro before taking a simple step to protect herself and others. The trial judge properly treated the failure to illuminate flashers and move the vehicle collectively as “the central allegation” made against the plaintiff. ln my view, this central complaint, that the plaintiff failed to take any step to reduce the risk to drivers approaching what the trial judge found to be an unexpected hazard, remains, even if the plaintiff’s failure to move her vehicle is not blameworthy.


Watch Out for the Moose, Eh! Failure To Warn Leads to Liability

November 3rd, 2014

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, addressing the duties of a motorist after colliding with an animal.

In today’s case (Ziemver v. Wheeler) a motorist struck a moose on the Alaska Highway.  It was “fully dark” at the time.  The moose lay dead or wounded when a subsequent motorist travelling in the same direction struck the animal, lost control and collided with an oncoming vehicle.

Multiple lawsuits were commenced.  The Court found that, given visibility issues, none of the motorists were responsible for striking the moose.  However, the first motorist was found liable for the subsequent collisions for failing to warn other motorists about the injured or dead moose in the roadway.  In reaching this conclusion Madam Justice Watchuk provided the following reasons:

[154]     A driver who has collided with wildlife must take reasonable steps to preclude the possibility of another vehicle colliding with that wildlife.  The actions which will constitute reasonable steps will vary depending on the circumstances.  The time available to the driver who has collided with the wildlife is an important factor to consider in assessing reasonableness. ..

[180]     Warning other motorists of the hazard that he had good reason to believe was lying on the road was a duty.  The duty arose at the time that he hit the moose.  Not utilising the available 9 minutes to fulfill that duty was a breach of his duty.  That breach caused the collisions between Mr. Walter and the moose and the Walter-Ziemer vehicles. ..

[187]     Mr. Wheeler failed to take any reasonable or entirely possible steps over the period of approximately 9 minutes before the third collision.  He did not return to the scene until a minimum of 21 minutes had passed.  I find that in these circumstances, his failure to take any steps to warn other motorists of the hazard posed by the moose carcass fell below the standard of care.

[188]     I further find that but for Mr. Wheeler’s failure to warn other motorists, the Walter-Ziemer collision would not have occurred or would have been likely to result in significantly decreased injury. 

[189]     This is not a case like Fajardo, in which the collision would have occurred even if the defendant driver had taken reasonable steps to warn other motorists (at para. 40).  Unlike in Fajardo, the hazard in this case did not take up the entire highway lane.  Further, because the weather was clear and Mr. Walter and Mr. Ziemer could see each other approaching, it is unlikely that they would have collided if they had taken evasive action to avoid the moose, which also distinguishes this collision from the accident in Fajardo. 

[190]     Most importantly, I find that both Mr. Ziemer and Mr. Walter would have been likely to avoid or lessen the impact of the collision if they had been warned that there was an approaching hazard.  I accept Mr. Walter’s evidence that he would have slowed if he had seen flashing lights which he would have understood as a warning.  I also find that Mr. Ziemer was an attentive driver and that he would have been likely to respond to a warning signal from Mr. Wheeler.  Both of these findings are supported by the persuasive expert evidence of Dr. Droll which indicated the ways in reasonable drivers could be assisted by roadside warnings of an upcoming hazard. 

[191]     In conclusion, I find that Mr. Wheeler breached his duty to warn other motorists of the hazard posed by the moose carcass, and that this caused the Walter-Ziemer collision. 


Passenger 35% To Blame For Riding With Impaired Driver

October 14th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing contributory negligence for a passenger who rides with an impaired motorist involved in a collision.

In today’s case (Telford v. Hogan) the Plaintiff was a passenger in a vehicle operated by the Defendant.  Both were drinking throughout the day.  As the vehicle was travelling at excessive speed on a highway the driver lost control resulting in a serious single vehicle collision.  The Plaintiff apparently interfered somehow with the steering wheel moments before the loss of control and the Court found the driver 75% at fault with the passenger shouldering 25% of the blame for this interference.  In addition to this the Court apportioned the Plaintiff’s contributory negligence at 35% for riding with an impaired motorist.  In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:

[103]     Despite the efforts of Ms. Telford’s counsel to distinguish the above cases, all of them bear some resemblance to this case in that the passenger and the driver embarked on a drinking exercise or “hazardous enterprise” where both knew or should have known that the intoxication of the driver was inevitable. I would repeat that Ms. Telford was well aware that Ms. Hogan was drinking over the course of the day and she had particular knowledge of the quantity of what Ms. Hogan consumed as the majority of it came from her own drink container. Although she may not have been aware of exactly what Ms. Hogan consumed from Ms. Ettinger’s cup, she would also have been aware that Ms. Ettinger’s beverage was alcoholic and that Ms. Hogan was sharing that too.

[104]     It does not follow that since Ms. Hogan was not exhibiting overt signs of impairment, one need not consider Ms. Telford’s lack of judgment in both offering her drink to Ms. Hogan and then getting in the vehicle being driven by Ms. Hogan for the trip home. To the extent that later in the day, Ms. Telford drank alcohol to the point of being severely intoxicated herself confirms that she failed to take reasonable steps to ensure her ongoing ability to assess her safety over the course of the trip home.

[105]     The cases cited by ICBC support the suggested range of apportionment of 30-35% for such a passenger who voluntarily rides with a drunk driver. The higher end of this range is amply supported, particularly by the fact that Ms. Telford herself provided most of the alcohol consumed by Ms. Hogan that day.

[106]     I assess Ms. Telford’s contributory negligence to be 35%.


“Wholly Inadequate” Stop Sign Placement Leads to Liability for Collision

September 23rd, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a construction company largely at fault for the ‘wholly inadequate‘ placement of a temporary stop sign in a construction zone.

This week’s case (Richmond v. Channa) involved a two vehicle collision where the Channa vehicle failed to stop at a stop sign controlled intersection and collided with the Richmond vehicle.  While the Court found Channa 25% to blame for the crash the Court held the lion’s share of fault rested with a construction company who blocked visibility to the intersection’s stop sign and placed an inadequate temporary sign in its place.  In reaching this apportionment Mr. Justice Skolrood provided the following reasons:

[110]     In the case at bar, I find that Tien Sher bears primary responsibility for the accident. It is clear from the evidence that the temporary stop sign, which again was in fact a flag person’s paddle, was placed on the construction fence at a point where the line of the fence had already started to curve to the right or to the north. As such, it was not visible to vehicles travelling west on 107A Avenue until just before those vehicles actually enter the intersection with Ring Road.

[111]     Further, the size and placement of the temporary stop sign was wholly inadequate. As noted, it was much smaller than a normal or permanent stop sign. Moreover, its placement on the fence at an awkward downward pointing angle would not necessarily signal to drivers that it was intended to function as a regular stop sign and to control west bound traffic on 107A Avenue.

[112]     It is particularly telling that Mr. Pereira and Mr. Mossey, employees of the City, both identified the temporary stop sign as a safety hazard.

[113]     Tien Sher’s failure to ensure proper placement and size of the temporary stop sign was compounded by its failure to provide drivers with advance warning of the sign. Such advance warning would have been a reasonable and prudent measure in the circumstances, given that the temporary sign was located well away from where the permanent stop sign was situated and, again, was obscured to drivers.

[114]     In the circumstances, I find that Tien Sher’s conduct created an objectively unreasonable risk of harm to drivers of vehicles proceeding west on 107A Avenue towards the intersection (Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 28). I find further that Tien Sher’s negligence caused the accident in that but for its conduct, the accident would not have occurred (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14; Resurfice Corp. v. Hanke, [2007] 1. S.C.R. 333 at paras. 21 – 23 and Clements v. Clements, [2012] 2 S.C.R. 181 at para. 8). In this regard, I accept Ms. Channa’s evidence that had she seen a stop sign, she would have stopped before entering the intersection…

[124]     I have already found that Tien Sher bears primary responsibility for the accident. It’s failure to comply with the minimum standards set out in the Manual, due in large measure to the fact that its designated safety officer did not even know of the Manual’s existence, its failure to erect adequate, or any, warning signs, and its wholly inadequate placement and sizing of the temporary stop sign demonstrates a disregard for the safety of drivers using 107A Avenue and constitutes conduct that is significantly more blameworthy than that of Ms. Channa.

[125]     I apportion liability 75% against Tien Sher and 25% against Ms. Channa.


 

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