ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, dealing with the issue of fault following a collision caused by an unidentified motorist.

In last week’s case (Orminston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.

The motorist left the scene and remained unidentified. The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.

Ultimately Mr. Justice McKinnon found both parties at fault. In assessing 30% of the blame to the Plaintiff the Court provided the following comments:

[26] Section 158(1) limits the ability of a “motorist” to pass on the right. It is permissible only in three specific instances, none of which existed at bar. Even when permitted, the move cannot be made if it would be “unsafe” to do so and if the movement caused the vehicle to “drive off the roadway”. “Roadway” is defined in section 119(1) and does not include the shoulder. Section 158(2) stipulates that a motorist must not overtake or pass if the movement cannot be made safely, or if it involves driving off the roadway. The latter, says defence, makes it clear that the plaintiff was not entitled to use the shoulder, at any point, or for any purpose, in attempting to pass. ..

[36] This unidentified vehicle was not near any intersection nor any roadway that might lead a cyclist to believe there was a possibility of a turn into his line of travel. It was descending a steep hill but for unknown reasons came to almost a complete stop at the centre of the road. In my view the facts at bar are not at all similar to those cited in Janzen…

[41] I accept that this unidentified driver was almost stopped at the centre line when he/she made a sudden veering motion that took the vehicle over the fog line onto the shoulder. Such an action, at the very least, constitutes driving without reasonable consideration for others. Clearly Mr. Ormiston also bears some responsibility for this collision, given the provisions of the Motor Vehicle Act to which I have referred. It remains to ascertain the extent to which each is liable.

[42] In Salaam v. Abramovic, 2010 BCCA 212, the British Columbia Court of Appeal offered the following comment about assessing statutory obligations in respect to liability:

[18] While the statutory provisions provide guidelines for assessing fault in motor vehicle accident cases, they do not, alone, provide a complete legal framework

[21] …In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

[43] In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed these general statements of principle, noting:

[18] A breach of the Motor Vehicle Act is not in itself determinative of liability; all of the surrounding circumstances may be taken into account.

[44] In my respectful view, given the provisions of the Negligence Act, R.S.B.C. 1996, c. 333 and the facts that I have found, the defendants bear the greater liability. I find them 70% responsible for the losses claimed. The plaintiff will be assessed 30%.

As previously discussed, having the right of way does not automatically result in a driver being found faultless for a collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Matheson v. Fichten) the Plaintiff was a passenger in a Northbound vehicle in a designated left hand turn lane.  The advance green arrow ran its course resulting in a green light for North and south bound traffic.  The driver proceeded with his turn despite no longer having the advance green arrow.

At the same time the Defendant was driving Southbound in the curb lane.  He was several car lengths back from the intersection when his light turned green.  Other Southbound vehicles began to accelerate but then stopped realizing the Plaintiff vehicle was turning.  The Defendant did not stop and entered the intersection when the collision occurred.

Despite having the right of way the Southbound Defendant was found 10% at fault for the collision.  In coming to this assessment Madam Justice Smith provided the following reasons for judgement:

[57] I find that the Bahniwal vehicle was travelling at the speed limit of 50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had slowed when the light ahead was red, but then resumed speed after the light turned green, two to three car lengths from the intersection.  I find that the presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s view of what was occurring in the intersection except for the portion immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s left began to move forward, but they stopped almost immediately.  Mr. Bahniwal overtook those vehicles and passed them on the right, entering the intersection on a green light but without noting that the vehicles to his left had stopped, or taking any particular precaution before entering the intersection…

[61] I have found as fact that Mr. Bahniwal proceeded through the intersection on a green light.  Accordingly, he had the right of way.  His was the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62] The question in the end is whether either Mr. Fichten or Mr. Bahniwal  or both, was in breach of the duty of care he owed to the plaintiff.  I take into account the Motor Vehicle Act provisions as informing the requisite standard of care (Ryan v. Victoria, [1999] 1 S.C.R. 201 at para. 29).

[63] It is clear that Mr. Fichten was negligent in making his left turn when it was unsafe to do so after the light had changed, and in particular by crossing the curb lane of southbound traffic without checking that it was free of oncoming vehicles.

[64] Turning to Mr. Bahniwal, what is the duty of a driver who enters an intersection in the circumstances that faced him?  He was in the curb lane, his view of the intersection was blocked by other vehicles, and those vehicles, having entered the intersection, had subsequently stopped…

[78] In my opinion, when the light facing Mr. Bahniwal turned green and the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal had the opportunity to recognize, and should have recognized, that something had caused them to stop.  His approach into the intersection should then have been tempered with caution, even though he had the light in his favour and had built up some momentum.  He did not take that approach but, instead, proceeded at the speed limit into the intersection.  His vehicle was in the dominant position, but he was not entitled to overlook a clear indication of a possible hazard in the fact that the vehicles to his left had stopped very soon after having begun to move.  The traffic was not backed up in the southbound lanes, as it was inRobinson v. Wong, and the timing of the vehicles stopping was inexplicable from his vantage point.  A careful driver would have reacted to the possibility that a left-turning vehicle, a pedestrian, or some other hazard was still in the intersection.

[79] I find that Mr. Bahniwal was in breach of his duty of care, and allocate liability 10% to him and 90% to Mr. Fichten.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.

Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:

[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?

The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

As previously discussed, Rule 7-7(5) canvasses the BC Supreme Court’s authority to allow a party to a lawsuit to withdraw a formal admission made the course of litigation.

A common admission canvassed under this rule deals with fault following a crash.  Occasionally ICBC admits fault on behalf of a Defendant and for various reasons wishes to withdraw such an admission as the lawsuit progresses.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.

In this week’s case (Goundar v. Nguyen) the Plaintiff was involved in a 2008 collision.  ICBC initially denied fault on behalf of the Defendant.  In the course of the lawsuit the Defendant’s lawyer ‘inadvertantly’ agreed to admit liability on behalf of the Defendant and an amended Response was filed.

The Defendant brought an application to withdraw its admission.  In allowing this the Court found that the admission was made inadvertently and provided the following reasons:

[35] Rule 7-7(5) provides:

A party is not entitled to withdraw…

(c) an admission made in a pleading…

except by consent or with leave of the court.

[36] The cases to which I was referred dealing with withdrawal of admissions treat admissions made by inadvertence with caution.  Many of the cases deal with deemed admissions through failure to respond to a Notice to Admit.  However, the considerations remain the same.  The court will consider if the admission was made inadvertently, if it is in the interests of justice to allow the issue to be resolved by a trial, and if there will be no prejudice to the party which cannot be compensated by costs.  If satisfied of those factors, leave to withdraw such an admission will generally be granted. (Abacus Cities Ltd. v. Port Moody [1980] B.C.J. No. 1749 and cases cited therein).

[37] The balancing of the interests of justice requires the applicant to show that there is a triable issue in respect of the admission.  The chambers judge must not make a final determination, but will simply determine if there is an issue worthy of being tried.  Prejudice resulting only from the benefit of relying on the admission occasioned by the inadvertence is not of significance (Can-Am, supra)…

[42] I am satisfied there is a triable issue on liability, based on the information put before me as to Goundar’s allegations, potential evidence from Maharajh, and Nguyen’s ticket on the one hand, and Nguyen’s and Stewart’s evidence on the other.  As well, Nguyen has her own action which is still outstanding.  There is a conflict in the evidence about the collision, which should be resolved by a trial.

[43] Although the plaintiff says the relevant admission was made deliberately and with no new facts available, that is not borne out by the affidavit material.  The lawyer has set out clearly how she came to make this admission in the face of her own assessment of the case and contrary instructions.  She admits she did not remember her instructions had changed and she did not conduct a review of the file before following a prompt from her paralegal to follow up on ICBC’s original letter.  The initial suggestion by ICBC to canvass plaintiff’s counsel regarding the proposal was made without the benefit of Mr. Stewart’s evidence, and the relevant instructions not to admit liability were in place at the time the lawyer amended the Response to admit liability.  I am satisfied that the defendant has demonstrated that the admission was made inadvertently.

[44] As for the balancing of prejudice, nothing irrevocable has been done that cannot be compensated for in costs.  The interests of justice require that this unfortunate situation be set back on track rather than allow the Goundar action to proceed on an untested and possibly erroneous foundation which has come about as a result of a mistake.

[45] If the admission of liability is left in place, the possibility of future remedies exists through an action by ICBC against the lawyer, and also possibly by Nguyen against ICBC for failure to defend her in this action.  However, that is not a satisfactory approach.  Goundar’s action would still be predicated upon a mistaken admission, and the interests of justice are not served by failing to rectify a mistake in circumstances where any prejudice can be compensated for in costs.

[46] The delay in bringing the application, once the lawyer became aware of her mistake, is not inordinate.  The trial date is four months away, which allows time for additional discovery.  While the deadline for expert reports is approaching, any prejudice arising from that factor can be compensated for in costs, as set out below.

[47] Goundar says this case is taken outside the usual bounds of withdrawals of admissions by the bargain she struck - discontinuing the action against Stewart in exchange for an admission of liability on behalf of Nguyen.  The defendants must be held to their bargain.  However, the Court of Appeal held in Drake (Guardian ad litem of) v. Clark (1996) 31 B.C.L.R. (3d) 289 that it is no longer necessary for the doctrine of promissory estoppel to be invoked in applications to withdraw admissions.  Withdrawal may be made if it is in the interest of justice.  As well, in this case, unlike Phil Whittaker Logging Ltd., supra, and the other cases referred to by the plaintiff, the admission was made inadvertently.

As previously discussed, a commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.

In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.

The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.

The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.

In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.

At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation…

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a crash when a Plaintiff was struck by a fleeing shoplifter.

In last week’s case (Bhadlawala v. Baxter) the Plaintiff was involved in a 2008 collision.  At the time he was 64 years old and was a long time employee at Zellers.  He observed an individual shoplifting and followed him into the parking lot.  The shoplifter entered a van.  The Plaintiff stood behind the van, about one vehicle length away, and attempted to write down the licence plate.  The vehicle then suddenly backed up and struck the Plaintiff causing injury.

ICBC argued the Plaintiff should be found 25% at fault for placing himself in harm’s way.  Madam Justice Gray rejected this argument and found the motorist fully at fault.  In doing so the Court provided the following reasons:

[85] Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was negligent in placing himself behind the van in the parking lot, and that he thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to have known that the van was going to back up, and should not have stood behind it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent for the 2008 accident, and that his damages award should be reduced accordingly…

[93] The defence argued that Mr. Bhadlawala should not have pursued the shoplifter. However, the accident was not the result of pursuing the shoplifter. It was the result of the van striking Mr. Bhadlawala in the parking lot.

[94] The shoplifter was in the van. The evidence did not establish whether the shoplifter was the driver or a passenger in the van. The driver of the van probably wanted to avoid anyone noting the van’s license number. It was reasonable for Mr. Bhadlawala to have anticipated that the van might have backed up.

[95] However, the risk of being caught shoplifting is far less significant than the risk of being caught striking a pedestrian with a vehicle.

[96] It was not reasonably foreseeable that the driver of the van would reverse so quickly that Mr. Bhadlawala could not move out of the way in time to avoid being struck. Mr. Bhadlawala was standing over a van length behind the van, which would have given him ample time to get out of the way if the van had moved at a reasonable speed…

[101] As a result, Mr. Robert is entirely responsible for the 2008 accident.

Another useful case addressing this issue can be found here where the BC Court of Appeal found ICBC’s arguments in a similar situation were ‘doomed to failure‘.

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:

[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…

The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.

Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.

When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.

In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway.“ At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.

The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] … The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

As previously discussed, a collision is not necessary in order for a motorist to be responsible for personal injuries caused to others.  This was demonstrated again in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Prempeh v. Boisvert) the Plaintiff was a passenger on a bus operated by the Defendant.  The Defendant “vigorously and abruptly applied the brakes to avoid a collision with the two vehicles which had stopped ahead of him“.  This caused the plaintiff, who was standing holding a metal handle, to be thrown down the aisle.  The Plaintiff was injured in the process.

The Plaintiff alleged the driver was negligent in braking hard.  The Defendant disagreed arguing this action was necessary to avoid collision.  Ultimately Madam Justice Dardi found the driver fully liable for the incident for driving without due care an attention.  In assessing the driver at fault the Court provided the following reasons:

[22] Mr. Boisvert was required to brake hard to avoid hitting the two vehicles that had stopped on the roadway in front of the bus he was operating. The first of the vehicles had stopped to turn left on Hamilton Street. The second car stopped behind the left-turning vehicle without a collision and without accompanying honking or screeching of brakes. It can reasonably be inferred that this occurred within a time frame that should have permitted a reasonably prudent user of the road driving behind those vehicles an opportunity to react and brake without incident. The application of the brakes was not a reaction to an emergency or unexpected hazard.

[23] Moreover, Mr. Boisvert properly conceded that, regardless of an abrupt or unexpected stop of a vehicle ahead, in order to prevent accidents prudence mandates that at all times a bus driver drive defensively and maintain a safe cushion or certain distance from a vehicle travelling in front of the bus. This is precisely to be able to stop safely in the event of an unexpected manoeuvre by that vehicle.

[24] I cannot find with precision whether the sudden and hard application of the brakes occurred because Mr. Boisvert was travelling too rapidly, not maintaining a diligent look-out or because he failed to maintain a safe distance from the vehicle in front of him. However, in weighing all of the evidence I have concluded that Mr. Boisvert’s sudden and vigorous application of the brakes, in the context of all the circumstances in this case, establishes a prima facie case of negligence against Mr. Boisvert. It is not conduct attributable to a reasonably prudent bus driver.

[25] Having found a prima facie case of negligence the onus is upon the defendants to establish that Mr. Boisvert was not negligent or that the incident was attributable to some specific cause consistent with the absence of negligence on his part.

[26] I note that Mr. Boisvert’s assertion at his examination for discovery that he could have stopped smoothly but the bus brakes on the new trolley bus “grabbed” and caused a “hard stop” is no answer to this claim.

[27] Mr. Boisvert 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 cannot be expected to assume any risk associated with the operation of the vehicle which could not reasonably be anticipated by a passenger. The usual braking of a driver as he moves through traffic would not cause a passenger to be thrown to the floor so violently. Moreover it is well established on the authorities that the responsibility of a public carrier extends to ensuring that its modes of conveyance permit the bus to be operated in a safe and proper manner: Visanji at para. 32.

[28] I have considered all of the authorities provided by both parties. Though useful as providing guidance on the governing principles, each case turns on its own facts. I note that unlike the circumstances in Lalani v. Wilson, [1988] B.C.J. No. 2408 (Q.L.) (S.C.), upon which the defendant relies, the bus driver here was aware that the plaintiff had fallen - the possibility of injury was self-evident. Mr. Boisvert’s attention was drawn to such a possibility at the time of the incident and in compliance with the bus operator training manual he should have recorded all pertinent information regarding the incident. While the court in Lalani found it would have been unfair to shift the burden, this is not so in this case.

[29] On balance I am not satisfied that the defendants have shown that Mr. Boisvert conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit. In the result, I conclude that Mr. Boisvert, however fleetingly, breached the standard of care of a reasonably prudent bus driver. I find the defendants negligent.