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This Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.
Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.
Archive for the ‘ICBC Liability (fault) Cases’ Category
February 28th, 2014
Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a rollerblader and a vehicle.
In this week’s case (Chabot v. Shaube) the Plaintiff was rollerblading and entered an intersection in a marked crosswalk. ¬†She had the right of way. ¬†She passed 4 of 5 lanes when the Defendant motorist, who failed to see her, moved forward attempting a right had turn. ¬†A collision occurred. ¬†Despite having the right of way the Plaintiff was found 10% at fault for the collision due to her speed when crossing. ¬†In reaching this division of fault Mr. Justice Brown provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant should not have rolled to a stop and proceed as she did, considering the traffic, the time of day and the marked crosswalk in front of her. Her passenger saw the plaintiff and called out a warning.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As for the plaintiff, once she chose to skate across the intersection, she should have skated at a pace that slow enough to allow her to stop as quickly as if she were walking or at most slowly jogging, which is, for all practical purposes, instantaneously, after allowing a moment to see and react. In other words, she departed from the standard of care of a reasonable person in similar circumstances. By skating at a fairly brisk jog, she failed to exercise sufficient care for her own safety when crossing a busy intersection during morning rush hour at UBC…
 The plaintiff was not walking. She was travelling considerably quicker than a pedestrian walking. She does not have to guard against every conceivable eventuality, or to assume a vehicle in the designated right turn lane might not respect her right of way. Only, considering the circumstances, to be more vigilant and to take reasonable precautions for her own safety, considering she was skating across the intersection, could not see traffic on the other side of the bus and could not stop as quickly as she could on foot.
 The law does not declare the plaintiff broke the law by skating across the crosswalk. Cyclists are obligated to dismount when they enter a crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. But the Motor Vehicle Act does not include roller blades in its definition of ‚Äúcycle‚ÄĚ, see s. 119(1) ‚Äúcyclist‚ÄĚ; they are pedestrians. Further, I appreciate inline skating is a popular way to get around in good weather. Some road skaters appear very adept and agile skaters. I accept the plaintiff was an experienced skater and that she knew how to stop properly on skates. She was not obliged to remove her skates to cross. But having chosen to skate across the crosswalk, she needed to take reasonable precautions for her own safety, commensurate with her speed and visibility of traffic beyond the stopped bus.
 As noted in Karran, ‚Äúfault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.‚ÄĚ I find the plaintiff‚Äôs conduct falls within the range of a momentary or minor lapse of conduct, which nevertheless, carries with it the risk of foreseeable harm. Based on this finding, and the circumstance that she was always within a marked crosswalk, I apportion 90% fault to the defendant and 10% to the plaintiff.
February 3rd, 2014
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing fault for a crash involving a wide left hand turning vehicle.
In this week’s case (Le v. Point) the Plaintiff was operating a scooter and passed a vehicle which was stopped ahead of him waiting to turn left. ¬†The Plaintiff passed on the right hand side of the vehicle. ¬†At the same time the Defendant, coming from the opposite direction, was attempting a left hand turn through the intersection. ¬†The Defendant almost cleared the intersection when the Plaintiff clipped the rear of the vehicle.
The Court found the Defendant was established in the intersection and was the dominant vehicle with the Plaintiff failing to keep a proper lookout. ¬†Despite this the Defenant was found partially at fault because she was turning wide into the curb lane.
In finding the Defendant 30% at fault Madam Justice Russell provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that Mr.¬†Le did not keep a proper lookout as he entered the intersection. If he had, he would have seen Ms.¬†Dickson‚Äôs vehicle conducting a left turn. By the time he entered the intersection, Ms.¬†Dickson‚Äôs vehicle was in the northeast corner of the intersection, which was directly in front of his line of vision.
¬†¬†¬†¬†¬†¬†¬†¬†¬†However, Ms.¬†Dickson has admitted that she violated s.¬†165 of the¬†Motor Vehicle Act¬†by turning wide into the northbound curb lane of traffic on Arbutus rather than the lane of traffic closest to the centre line. While this in itself is not sufficient to establish that she breached her duty of care, if she had turned into the nearest northbound lane as required, it is likely she would have been clear of the intersection by the time that Mr.¬†Le entered it and the collision may never have occurred. On this basis, I find Ms.¬†Dickson was contributorily negligent in causing the collision despite the fact that she was the dominant driver.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In closing arguments the plaintiff referred to several cases in which a left turning driver was held 100% liable for collisions:¬†Andrews v. Mainster, 2012 BCSC 823,¬†Clarke v. Stephan, 1993 CanLii 1554 (B.C.S.C.),¬†Djukiv v. Hahn, 2006 BCSC 154,¬†Tait v. Dumansky, 2012 BCSC 332,¬†Pasemko v. Van Varner, 1994 CanLii 1043 (B.C.S.C.). These cases are not of assistance to the Court in deciding the issues at hand. In all of these cases it was found that the left turning driver failed to observe traffic which constituted an immediate hazard and breached an obligation to yield the right-of-way. Since I have found that Mr.¬†Le was not an immediate hazard and Ms.¬†Dickson was the dominant driver, these cases are distinguishable on their facts.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the circumstances of this case, I apportion the fault for the 2010 Collision as 70% to Mr.¬†Le and 30% to Ms.¬†Dickson.
January 13th, 2014
Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing fault for a single vehicle collision involving a passenger who grabbed the steering wheel.
In last week’s case (Sikora v. Brown) both the motorist and her passenger were driving home from a nightclub. ¬†Both had been drinking but neither was “seriously intoxicated“. ¬†As they drove through an intersection the steering wheel was shaking and the driver invited the passenger to feel this. ¬†He held on to the steering wheel and shortly thereafter the collision occurred. ¬†In finding both the driver and passenger equally to blame Mr. Justice Verhoeven provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†In these difficult circumstances, where neither version of events is reliable and where there is essentially no independent corroborative evidence one way or another, I find as follows.¬† Ms.¬†Sikora had been drinking some alcohol at the nightclub but was not seriously intoxicated.¬† Mr.¬†Brown had been drinking as well, somewhat more than she had, but was a large man and was also not seriously intoxicated. ¬†They left the nightclub together intending to go to Ms.¬†Sikora‚Äôs home. Along the way they discussed going to a restaurant. ¬†Whether they actually agreed to go to the restaurant is immaterial.¬† Ms.¬†Sikora was driving at about 60 km/h as they drove through the intersection. ¬†She was aware that the intersection caused her vehicle to shake, and that the steering of her vehicle was notably ‚Äúloose‚ÄĚ and prone to shaking.¬† Either before entering the intersection or in its midst, in the context of telling Mr.¬†Brown about the new car she had ordered that very day, she commented about the condition of the intersection, complained that it should be repaired, and complained about the poor condition of her vehicle‚Äôs steering in common with Fords generally.¬† She did not slow down before entering the intersection.¬† She invited Mr.¬†Brown to observe the shaking of the steering wheel, and to feel the steering wheel of the car for himself.¬† He held it for a few seconds then let go. ¬†The combined effects of Mr.¬†Brown‚Äôs holding of wheel, the condition of the road and vehicle, and Ms.¬†Sikora‚Äôs manner of driving the vehicle caused her to lose control of the vehicle some seconds after Mr.¬†Brown let go of the wheel.¬† The precise mechanics of this are impossible to sort out. She did not brake at any time. ¬†The vehicle likely swerved left before veering to the right, and then left the roadway to the right side, before eventually coming to rest in the ditch upon impact.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that both parties were negligent and that they both contributed to causing the accident in equal measure.¬† Ms.¬†Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects.¬† In somewhat precarious circumstances, she invited Mr.¬†Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle.¬† She did not slow down when he held the steering wheel for several seconds.¬† She lost control of the vehicle after he let go of the wheel.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms.¬†Sikora‚Äôs comments about the problems with her vehicle‚Äôs steering, that his actions could affect Ms.¬†Sikora‚Äôs ability to control the vehicle.¬† I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise.¬† I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking. ¬†He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle…
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that Ms.¬†Sikora and Mr.¬†Brown are equally at fault for causing the accident.¬† As a result it is not strictly necessary to apply s.¬†1 of the¬†Negligence Act, R.S.B.C. 1996, c.¬†333, which provides that where the fault of two or more persons causes damage or loss to one or more of them, liability must be apportioned equally if having regard to all the circumstances of the case it is not possible to establish different degrees of fault.
January 9th, 2014
While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances. ¬†Reasons for judgment were released this week by the BC Supreme Court addressing this.
In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops. ¬†Many of the workers were unrestrained in the box of the pick up truck. ¬†The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.
The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck. ¬† Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride. ¬†In reaching this conclusion the Court provided the following reasons:
¬†¬†¬†¬†¬†I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people….
¬†¬†¬†¬†¬†I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions:
1)¬†¬†¬†¬†Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals;
2)¬†¬†¬†¬†Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness;
3)¬†¬†¬†¬†Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay;
4)¬†¬†¬†¬†The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks;
5)¬†¬†¬†¬†On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold;
6)¬†¬†¬†¬†The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated….
296]¬†¬†¬†¬†¬†Annie controlled the workers‚Äô transportation and she called the shots.
¬†¬†¬†¬†¬†The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.
¬†¬†¬†¬†¬†By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.
¬†¬†¬†¬†¬†These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in¬†Iannone,¬†Bissky,¬†Massey¬†and¬†Fraser.
¬†¬†¬†¬†¬†Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.
January 7th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability for a fatal collision which occurred during a police pursuit.
In today’s case (Bergen v. Guliker) the Plaintiff vehicle was struck head on by the Defendant vehicle which was fleeig from police at the time of collision. ¬†The court noted that “Prior to the Collision, it was known that Mr. Guliker was suicidal, had stated an intention to jump into traffic to kill himself, and was a flight risk. When the RCMP first approached Mr. Guliker, he was parked at a chicken farm on Bustin Road. On sighting the RCMP, Mr. Guliker fled north on Bustin Road at a high rate of speed.”.
The Court found that the RCMP were in part responsible for the tragic collision. ¬†In reaching this conclusion Mr. Justice Savage provided the following reasons:
¬†¬†¬†¬†¬†Once Mr. Guliker accelerated down Bustin Road, it was obvious to the RCMP officers that Mr. Guliker‚Äôs sighting of their vehicles precipitated his flight. A proper risk assessment at this point would have alerted the officers to the significant public safety risk of chasing a suicidal individual who is determined to evade apprehension down unfamiliar rural roads at high rates of speed.
¬†¬†¬†¬†¬†Nevertheless, the officers commenced and continued a pursuit of Mr. Guliker up to the point of the Collision.
¬†¬†¬†¬†¬†To summarize, in my opinion Constables Huff and Brand failed to conduct a proper risk assessment at two critical times: (1) before deciding to proceed down Bustin Road without a plan in place that recognised the likelihood of Mr. Guliker fleeing in his vehicle, and (2) after proceeding down Bustin Road toward Mr.¬†Guliker‚Äôs location and seeing him accelerate away. A proper first risk assessment would have precipitated the development of a plan to address the likelihood of Mr.¬†Guliker fleeing. A proper second risk assessment would have called off the chase and considered other options.
¬†¬†¬†¬†¬†I find that Constables Huff and Brand did not act within the standard of a reasonable police officer, acting reasonably and within the statutory powers imposed upon them in the circumstances of this case. In the result, the RCMP officers breached their duty of care owed to the plaintiffs.
November 22nd, 2013
Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.
In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff. ¬†The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“. ¬†In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that the accident happened through no fault on the part of the defendant.¬† She did what was reasonably expected of her.¬† She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again.¬† She cannot be held responsible for his decision to veer to the right.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn.¬† That evidence struck me as a post hoc rationalization of the plaintiff‚Äôs actions.¬† There was nothing in the defendant‚Äôs actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find this accident happened solely due to the plaintiff‚Äôs fault.¬† He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant.¬† He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The evidence of how he reacted when he saw the defendant‚Äôs car is, at least, equally consistent with him having panicked when he saw the defendant‚Äôs car or with him having made a poor reactive choice reflecting his lack of training and experience.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The action is, therefore, dismissed.
November 14th, 2013
Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.
In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle. ¬†The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles. ¬†At the same time the Defendant commenced a left hand turn into her driveway. ¬†Both motorists were found at fault with the Plaintiff shouldering 75% of the blame. ¬†In reaching this decision Mr. Justice Weatherill provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted.¬† She ought reasonably to have been alive to the possibility of a passing vehicle.¬† She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn.¬† If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely.¬† I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident.¬† Each is partly liable for the accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision.¬† It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left.¬† The Truck/Trailer‚Äôs left turn signal should have been evident to him.¬† It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass.¬† The plaintiff did not do so.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook.¬† The defendant William Joseph Cook is vicariously liable for Ms. Cook‚Äôs negligence by virtue of s. 86 of theMotor Vehicle Act.
September 30th, 2013
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing fault for a collision involving a vehicle overtaking another.
In last week’s case (Shallow v. Dyksterhuis) ¬†the Defendant was driving behind the Plaintiff when the Plaintiff vehicle slowed near an intersection. ¬†The Defendant attempted to pass the vehicle by overtaking it on the oncoming lanes. ¬†At the same the time the Plaintiff attempted a left hand turn and a collision occurred. In finding the Defendant fully liable for the collision Mr. Justice Kelleher provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C.¬† Ms. Orcutt was driving south on the Alaska Highway, Highway 97.¬† She intended to turn left onto an access road, two kilometers south of the junction with Highway 29.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Highway 97 has one southbound lane in this area.¬† However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection.¬† The intersection is not controlled by a traffic light.¬† The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The accident occurred at 8:30 a.m.¬† There was daylight.¬† The roads were covered with snow and it was continuing to snow.¬† Visibility was satisfactory.¬† Ms.¬†Orcutt testified that she had her left turn signal on.¬† As she commenced her turn, the defendant‚Äôs vehicle struck her vehicle as he was attempting to overtake her by passing her on the left.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant testified that he was driving south in a loaded logging truck.¬† He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John.¬† This was his second load of the day.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr. Dyksterhuis testified that he was travelling in the one southbound lane.¬† He noticed the plaintiff‚Äôs car driving south in front of him.¬† He saw the vehicle slow down and saw that the brake lights were coming on and off.¬† Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there.¬† He presumed, then, that the plaintiff was either turning right or stopping on the highway.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant decided it was safe to pull out and pass her on the left.¬† As he came up on her left, she began her left turn.¬† His front bumper struck her vehicle. ..
25]¬†¬†¬†¬†¬†¬†¬†¬†¬†There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone.¬† There was a solid double yellow line on the highway, but it was covered with snow.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt.¬† First, he was in a no passing zone.¬† Second, he wrongly assumed that she was not able to turn left at that place.¬† Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)).¬† The defendant did not dispute the ticket.¬† Therefore, he is deemed to have pleaded guilty:¬†Offence Act,¬†R.S.B.C. 1996, c. 338, s. 14(11).
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame.¬† This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am not persuaded that Ms. Orcutt‚Äôs action in not looking over her shoulder, amounts to a failure to take reasonable care.¬† She was making a lawful left turn.¬† She was in an area where passing was not permitted.¬† She was in the left turn lane.¬† The defendant did not sound his horn to warn her.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability.¬†For these and the above reasons, I conclude that the defendant is 100% at fault.
September 23rd, 2013
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a bus and a pedestrian attempting to catch it before it departed.
In last week’s case (Heyman v. South Cost British Columbia Transportation Authority) the Plaintiff was attempting to catch a bus which was stopped at a bus stop. ¬† He ran towards it, approaching from its front, waving his hand in the air trying to get the motorists attention. ¬†The bus driver closed the doors and put the vehicle into motion just as the Plaintiff approached colliding with his waving hand. ¬† The impact caused him to spin around and fall to the ground. His ankle was run over by the rear of the bus and he also suffered a broken shoulder.
The bus driver argued there was a strict policy “that if a pedestrian is even one foot away from the bus stop when the doors close, the bus leaves“. ¬†Mr. Justice Skolrood rejected this finding there was no such written policy noting that the written policy stated that “to arrive safely is more important than to arrive on time. The obvious safety of passengers, employees, travelers and pedestrians on the streets and highways must be given precedence over every other consideration.”
Mr. Justice Skolrood went on to note that in any event the bus driver was careless in departing when he did given the proximity of the pedestrian. ¬†In finding both parties negligent in the incident the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman‚Äôs approach.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, reliance on this alleged policy is no answer to the claim that Mr.¬†Cooper breached the standard of care. I say alleged policy because it is not set out anywhere in writing, notwithstanding that West Vancouver Transit has in place an extensive policy manual setting out detailed operational practices and policies. That said, I have no reason to question Mr. Cooper‚Äôs evidence that drivers are instructed to leave once there is no one else waiting at a bus stop.
¬†¬†¬†¬†¬†¬†¬†¬†¬†However, Mr. Cooper‚Äôs conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in¬†Wang, the question is whether there was a real risk of harm that could reasonably be avoided.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver‚Äôs attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper‚Äôs part. Again, that is particularly so given the manner in which Mr. Heyman was approaching…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the circumstances, I find that Mr. Heyman was 60% responsible for the accident and Mr. Cooper 40%.
September 20th, 2013
Adding to this site’s archived claims involving pedestrian collisions, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for an incident involving a pedestrian who was crossing a street outside of a crosswalk.
In this week’s case (Khodadoost v. Wittamper) the Plaintiff pedestrian started crossing McKay Avenue in Burnaby, BC two car lengths north of the intersection. ¬†The defendant motorist was stopped in the curb southbound lane. ¬†As the pedestrian stepped in front of the vehicle the Defendant started to drive forward as his light had turned green.
In finding the pedestrian 70% at fault for the incident Mr. Justice Betton provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The incident occurred while the plaintiff was crossing McKay Avenue at Kingsway Avenue, in Burnaby, British Columbia. He had obtained a ride from a friend, Ms.¬†Khaki-Khaljan, to the area. She pulled off to the right of the northbound lane of McKay Avenue approximately two car lengths north of Kingsway Avenue. When the plaintiff exited the vehicle, he began crossing McKay Avenue west and outside of the crosswalk but moving at an angle toward the crosswalk…
¬†¬†¬†¬†¬†¬†¬†¬†¬†When the southbound traffic began to move forward, the defendant followed. The plaintiff at that time was adjacent to the front driver‚Äôs side corner of the defendant‚Äôs car. The defendant‚Äôs vehicle may have made a very slight contact with the plaintiff before the defendant initially applied his brakes. When he placed his foot on the brake pedal, however, his foot slid off the pedal allowing his vehicle to move forward, essentially in a second forward motion. At that time, there was contact between the plaintiff and the defendant‚Äôs vehicle, and the plaintiff fell or was knocked to the road…
¬†¬†¬†¬†¬†¬†¬†¬†¬†There is no question that the plaintiff began his crossing of McKay Avenue outside of the crosswalk. That fact is, however, of limited relevance. What is particularly important is the condition of the pedestrian and traffic control signals, and the plaintiff‚Äôs positioning relative to the crosswalk as he moved past the center point of the road and across the southbound lanes.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am satisfied on the evidence that by the time the plaintiff had begun to cross those southbound lanes, the traffic signal for southbound traffic was green. All of the evidence indicates that traffic generally, including the defendant, had begun to move. Neither the plaintiff nor the defendant commented specifically on the condition of the traffic signal, but it is the only logical inference from the evidence as a whole…
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is my conclusion that the plaintiff must bear the majority of the liability for the incident. I apportion liability 70 percent to the plaintiff and 30 percent to the defendant. An award of damages must be adjusted based on this division of liability.