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

Motorist Found Fully At Fault Following Collision With Moose at Highway Speed

August 7th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability following a collision with a moose in Northern BC.

In today’s case (Knight v. Knight) the Defendant collided with a moose causing catastrophic and disabling injuries to his spouse who was a passenger in the vehicle. ¬†The Defendant argued he was not at fault as he was not speeding and had little time to react. ¬†Mr. Justice Sewell rejected this argument and found him fully at fault. ¬†In doing so the Court adopted ICBC’s “Learn to Drive Smart” manual as being relevant in assessing the standard of care and provided the following reasons:

[44]         In this case, Mr. Knight’s evidence is that he was driving at the posted speed limit, was looking straight ahead while driving because of the oncoming headlights of the Thomas vehicle and took no action when he noticed those headlights black out. Mr. Knight was aware that there were signs warning of the risk of moose being present on the highway and had on an earlier occasion seen a moose on Highway 37, albeit closer to Terrace. He was also aware that the risk of a moose being present was increased at dusk and that moose were more likely to be present during the rutting season, which includes October. There would be a minimal burden imposed on the defendant from driving more slowly. The only result of doing so would have been that he would have arrived at his destination a few minutes later than he would have if he was driving at the posted speed. There can be no doubt that a reasonable person living in Northern British Columbia would have been aware of the grave consequences of colliding with a moose at highway speed.

[45]         With respect to the standard of care, the Insurance Corporation of British Columbia’s Learn to Drive Smart Manual states at page 129:

Strategies: watching for animals

To help prevent a collision with an animal:

Scan the sides of the roadway ahead for animals

Watch for animal crossing signs when driving through farming or wooded areas. Slow down in these areas.

Be extra cautious at dusk and dawn. This is when animals move around to feed, and it is also harder for you to see them at these times.

Look for sudden, unusual spots of light on the roadway at night. This may be the reflection of your headlights off an animal’s eyes.

Remember that wild animals often move in herds. If you see one animal, there may be more.

[46]         I consider that the recommendations contained in the Driver’s Manual to be relevant in determining whether Mr. Knight met the required standard of care in this case.

[47]         In his evidence and examination for discovery, Mr. Knight admitted that he took none of the precautions recommended above. I am aware that I must be cautious about admissions made by Mr. Knight in this case given the fact that his wife is the plaintiff and that he therefore stands to benefit from an award in her favour. However, taking into account the whole of his evidence, his demeanor when giving evidence and the direct manner in which he answered questions put to him, I have no reason to believe that he was attempting to deceive me. Mr. Thomas’ estimate of the speed of the Knight vehicle was consistent with Mr. Knight’s evidence.

[48]         I conclude that Mr. Knight was operating his vehicle in a negligent manner on the night of October 22, 2008. I find that given the time of the year and the time of day and the presence of moose warnings signs on Highway 37, Mr. Knight was negligent in failing to slow his vehicle and in failing to take any extra precautions to keep a look out for the presence of moose on or near the highway.

[49]         I also find that he was negligent when he failed to immediately slow his vehicle when he observed something crossing in front of the headlights of Mr. Thomas’s oncoming truck.

[50]         In my view a reasonable person in Mr. Knight’s position would have immediately taken steps to slow his vehicle when he saw the headlights of the oncoming vehicle black out. I find that Mr. Knight was aware that something was obstructing the lights of the oncoming vehicle. Given the other factors I have already outlined Рthe warning that moose might be present on the highway, the time of day, and the fact that October is in the rutting season when moose are more likely to be present РI conclude that a reasonable driver would have realized that there was a material risk that it was an animal that was obstructing the lights and would immediately have applied his brakes and slowed his vehicle until he had ascertained what was causing the obstruction. I find that it was negligent of Mr. Knight not do so.

 


60/40 Liability Split After Pedestrian Steps in Front of Bus

July 29th, 2014

Corrected reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing fault between a pedestrian and a bus driver.

In today’s case (Whelan v. BC Transit) the Plaintiff pedestrian “was struck and had his foot run over by a BC Transit bus driven by the defendant Henry Kobbero, after Mr.¬†Whelan had stepped onto the road to avoid some other pedestrians on the sidewalk.”

The bus was stopped shortly before the incident dropping off passengers and moved forward with the driver seeking to merge back with traffic. ¬†Mr. Justice Schultes found both parties were to blame with the Plaintiff bearing the lion’s share of fault. ¬†In reaching this decision the Court provided the following reasons:

[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.

[72]¬†¬†¬†¬†¬†¬†¬†¬†¬†As was obvious from my earlier comments in this discussion, Mr.¬†Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus‚Äôs right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment‚Äôs pause in his progress, he made an assumption that was even less grounded in objective fact than Mr.¬†Kobbero‚Äôs — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk…

75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.


BC Court of Appeal Sends Strong Message To Cyclists Who Pass Vehicles on the Right

July 8th, 2014

Reasons for judgement were released today by the BC Court of Appeal addressing the practice of cyclists passing vehicles on the right finding, absent limited circumstances, that it is negligent to do so.

In today’s case (Ormiston 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 ‚Äúwas almost stopped at the centre line‚ÄĚ. 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 reason for the sudden veering motion remained unknown.  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.

At trial both the cyclist and motorist were found partly to blame.  The BC Court of Appeal overturned this result finding the cyclist was full to blame for passing a vehicle on the right.  In reaching conclusion the Court provided the following reasons:

[23]¬†¬†¬†¬†¬†¬†¬†¬†¬†Under the¬†Motor Vehicle Act¬†a cyclist is required to ride as near as practicable to the right side of the highway (s. 183(2)(c)).¬† ‚ÄúHighway‚ÄĚ is broadly defined to include any right of way designed to be used by the public for the passage of vehicles (s.¬†1).¬† That, it is said, includes the shoulder such that sometimes cyclists must ride on it to be as near as practicable to the right side of the highway.¬† Vehicles are required to travel on the right-hand half of the roadway (s.¬†150(1)).¬† ‚ÄúRoadway‚ÄĚ is defined as the improved portion of a highway designed for use by vehicular traffic but does not include any shoulder (s.¬†119).¬† Vehicles cannot travel on the shoulder.

[24]         The contention is that because cyclists must sometimes ride on the shoulder while vehicles cannot travel on that part of a highway, the shoulder must, where practicable, be a lane for cyclists within the meaning of s. 158(1)(b) such that, when riding on the shoulder, they are able to take advantage of the exception it provides and pass vehicles on a roadway on their right.  It does appear that what may be practicable could vary considerably having regard for the differing widths of the shoulder over any given stretch of a highway, or from one highway to the next, as well as the condition of the surface.  One cyclist may have a much different view than another as to what is practicable in any given instance.

[25]¬†¬†¬†¬†¬†¬†¬†¬†¬†While I doubt the legislative intention was to create by this somewhat convoluted statutory route what would be thousands of miles of unmarked and ill-defined bicycle lanes across the province, I do not consider s.¬†158 (1)(b) constitutes an applicable exception to the prohibition against passing on the right in any event.¬† As defined, the exception applies to a laned roadway being a roadway divided into marked lanes for vehicles travelling in the same direction.¬† The markings divide the roadway; the lanes marked are on the roadway.¬† A roadway does not include the shoulder.¬† The shoulder could not be an unobstructed lane¬†on¬†a laned roadway.¬† The ‚Äúlaned roadway‚ÄĚ exception has, as the judge said, no application here.¬† It does not permit cyclists to pass vehicles on the right by riding on the shoulder. ¬†It must follow the driver of the vehicle would have had no reason to expect a cyclist like Ormiston would attempt to pass on the right by riding on the shoulder.¬† That must be particularly so here when the shoulder was not fit for a bicycle because it was strewn with gravel and Ormiston was riding as far to the right of the highway as he considered practicable.

[26]¬†¬†¬†¬†¬†¬†¬†¬†¬†Ormiston did a foolish thing.¬† Rather than wait until the driver‚Äôs intentions were clear, he decided to do what the¬†Motor Vehicle Act¬†prohibits ‚Äď pass on the right.¬† He decided to take a chance and he was injured.¬† Had he waited, even a few seconds, there would of course have been no accident because the vehicle drove on after it had moved to the right of its lane.¬†

[27]         I conclude Dixon Ormiston was the sole author of his misfortune.  I do not consider there to be any basis in law to hold the driver of the vehicle liable in negligence.


Proving Fault After A Transit Bus Collision – The Reverse Onus

June 23rd, 2014

If you are injured while a passenger in a transit bus British Columbia law requires the bus driver to prove they were not at fault. ¬†This is a ‘reverse onus’ from most personal injury claims where the Plaintiff must prove the Defendant was at fault. ¬†Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this.

In last week’s claim (Tchir v. South Coast British Columbia Transportation Authority) the plaintiff was riding as a passenger in a bus “when an unidentified driver came to an abrupt stop in front of the bus“. ¬†The bus driver was forced to brake hard to avoid collision and the Plaintiff was thrown from her seat and injured.

The Court found both motorists were to blame for the incident.  In discussing the reverse onus in proving fault, Mr. Justice Davies provided the following summary of the law:

[38]         The standard of care owed by the Transit Defendants to Mrs. Tchir as a passenger is a high one. Also, once it is proven that a passenger is injured while riding on a public transit vehicle, a prima facie case of negligence is made out and the onus then shifts to the carrier to establish that the injuries suffered by the passenger occurred without fault on the carrier’s part.

[39]         Those principles were summarized by McLachlin J. (as she then was) in Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) [Planidin] at pages 3 and 4 as follows:

There is little dispute as to the legal principles applicable in this case. The standard of care imposed on a public character is a high one. This standard has been established in the Supreme Court of Canada decision Day v. Toronto Transportation Committee [1940] S.C.R. 433, 4 D.L.R. 485 . At page 439 of that report of that case Davis, J. said:

¬∑¬†¬†¬†¬†¬†¬†¬†¬†” The duty of the respondent to the appellant, its passenger, was to carry her safely as far as reasonable care and forethought could attain that end.”

·        At page 441 Hudson, J. in an oft-quoted passage, stated:

¬∑¬†¬†¬†¬†¬†¬†¬†¬†” Although the carrier of passenger is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.”

These, and other cases, establish that once an accident occurs and a passenger is injured, a prima facie case in negligence is raised and the onus shifts to the public carrier to establish that the passenger’s injuries were occasioned without negligence on the company’s part. The question then is: What suffices to discharge this onus?

[40]         Concerning the last question posed, McLachlin J. went on to say:

This has been considered in at least two British Columbian cases and I refer to Lawrie v. B.C. Hydro and Power Authority (unreported, May 31st, 1876, B.C.S.C. Vancouver Registry No. 32708/74) and Fischer v. B.C. Hydro and Power Authority (unreported, February 19th, 1980, B.C.S.C. B781446). In the latter case, at page 8, Taylor, J., set out what the defendant must show to discharge the onus upon it in the following terms:

¬∑¬†¬†¬†¬†¬†¬†¬†¬†” Thus there is in this case an onus on the defendants to show that the plaintiff came by her injury without negligence on their part or as a result of some cause for which they are not responsible. That is to say they must show that the vehicle was being driven carefully at the time of her fall, or that her fall resulted from some cause other than the manner in which the bus was being driven.”

[41]         Also instructive on the issue of the standard of care expected of the Transit Defendants in this case is the decision of Dardi J. in Prempeh v. Boisvert, 2012 BCSC 304 [Prempeh] at para. 15, in which she wrote:

… The standard of care owed to a plaintiff passenger by a defendant bus driver is the conduct or behaviour that would be expected of a reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver and anything the defendant driver knew or should have known: Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 at para. 39 (C.A.); Patoma v. Clarke, 2009 BCSC 1069 at para. 6.

 


Motorist “Darting Out Into Traffic” Fully At Fault for Subsequent Collision

April 28th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing the liability of a motorist who darts into traffic causing a cyclist to lose control.

In this week’s case (Graham v. Carson) the Defendant motorist was stopped at a commercial loading zone and the “darted out into traffic too quickly” when it was unsafe to do so. ¬† The Plaintiff, who was travelling in the same direction, lost control trying to avoid a collision with the Defendant and subsequently drove his bicycle into a parked car causing injury to himself. ¬†The Defendant argued the Plaintiff was the author of his own misfortune. ¬†Mr. Justice Macintosh rejected this argument finding the Plaintiff acted reasonably in the agony of collision and that the Defendant was fully to blame. ¬†In reaching this conclusion the Court provided the following reasons:

[8]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Having found as I have regarding the turn signal, I add that the failure to signal is not the central concern in this case.¬† If Ms.¬†Carson had signalled at about the same moment she pulled out and drove into the traffic, the signal would have been of little or no assistance to anyone.¬† The main problem was that Ms.¬†Carson’s car darted out into traffic too quickly.¬† The traffic was proceeding south on Blanshard immediately behind or beside her car when her car had been stopped in the commercial zone moments before that.¬† She should have waited for a safe opening in the traffic, which might have entailed waiting where she was until the light changed so as to stop the southerly flow on Blanshard before cars started south onto Blanshard from Fort Street…

[11]¬†¬†¬†¬†¬†¬†¬†¬†¬†Proceeding through the green light southward on Blanshard were, first, the SUV, second, the plaintiff on his bicycle, and third, Mr.¬†Enns in his car.¬† The SUV, the plaintiff’s bicycle and the Enns car were thrown into disarray by the defendant driver pulling out too suddenly, immediately in front of the SUV.

[12]¬†¬†¬†¬†¬†¬†¬†¬†¬†I noted above that the SUV stopped before hitting the defendant’s car, but avoiding that collision was a near thing.¬† The SUV had to stop very quickly.¬† Mr.¬†Enns veered his car toward the left; that is, toward the centremost of the southbound lanes on Blanshard, in order to avoid a collision.¬† Meanwhile, the plaintiff on his bike had a matter of seconds to decide what to do.¬† He was conscious from past experience that he risked being rear‚ÄĎended by the Enns vehicle if he stayed his course and simply braked, hoping to stop in time to avoid hitting the SUV.¬† Instead, he steered his bike, to the right, into what appeared as a metre‚ÄĎwide opening between the stopped SUV and a car parked on Blanshard, just south of the commercial zone.

[13]         As I noted above, Mr. Graham is an experienced cyclist, and hoping to avoid injury by driving into the space between the SUV and the parked car was not unreasonable in that dire circumstance, when there was no time and little opportunity to do anything else.

[14]¬†¬†¬†¬†¬†¬†¬†¬†¬†Unfortunately, that escape route did not save the plaintiff.¬† His elbow hit the mirror of the parked car, breaking off the mirror.¬† That impact drove him from his bike and injured him, thus giving rise to this claim…

[16]¬†¬†¬†¬†¬†¬†¬†¬†¬†My view of the evidence and my resulting findings of fact lead to my conclusion that the defendant driver is fully liable for the plaintiff’s injuries.¬† The plaintiff was not contributorily negligent.¬† He acted promptly and not unreasonably in a desperate situation, which was brought about entirely by Ms.¬†Carson’s re‚ÄĎentering traffic when her car should have stayed where it was until there was a safe opportunity to proceed.


Motorist Fully At Fault Despite Being hit While Stationary

April 28th, 2014

Reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, finding a motorist who was struck while stationary fully at fault for a collision.

In last week’s case (Hart v. Jackson) the Defendant lost control of his vehicle in winter driving conditions and drove into a snow bank. ¬†A good Samaritan helped him retrieve his vehicle leaving it facing southbound in the northbound lane. ¬†The Defendant’s vehicle’s wheel wells were packed with snow such that it could not be steered. ¬†The Defendant spend several minutes using a ice scraper to remove the snow. ¬†At the same time the Plaintiff vehicle was driving Northbound. ¬†When he realized the Defendant vehicle was in his lane he applied his brakes but could not avoid the collision.

In finding the Defendant fully at fault for the crash Mr. Justice McKinnon provided the following reasons:

[15]         In my view, Mr. Jacobsen was not a credible witness. He argued with plaintiff’s counsel, dismissed the plaintiff’s expert opinion about the Kia’s woeful lack of winter readiness, and generally set himself up as an expert northern driver fully alert and ready for winter conditions.

[16]¬†¬†¬†¬†¬†¬†¬†¬†¬†It was somewhat telling that even the defendant‚Äôs expert engineer was critical of the defendant‚Äôs position that ‚Äúall weather tires‚ÄĚ were perfectly adequate for northern winter driving.

[17]¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant testified that he drove at a constant speed of 75 KPH, which clearly was too fast, given the state of his vehicle, particularly the condition of his tires. Before the collision at issue in this case, the defendant‚Äôs vehicle began to slide as it rounded the curve referred to earlier and it ended up in the snow bank off the northbound lane. A passing motorist stopped to assist and pulled him out, leaving the Kia facing southbound in the northbound lane. According to Mr.¬†Jacobsen he was ‚Äúat most a foot away from the snow bank‚ÄĚ.

[18]         Unfortunately, the wheel wells were packed with snow and thus the Kia could not be steered. The defendant had no shovel and so was reduced to chipping away at the wheel wells with a snow scraper to free up the steering. Although his vehicle was equipped with four way flashers he did not turn these on but did have his head lights on.

[19]         He said that as he was close to completing this task, he heard a flashing or skipping noise, turned to his left and saw a silver pickup sliding toward him. He said he turned and leaped into the ditch, never taking any strides.

[20]¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Jacobsen denied ever admitting to either Mr. Landolt or Mr. Hart that the collision was his fault, indeed he capped that denial by asserting that ‚ÄúI was parked, it wasn‚Äôt my fault‚ÄĚ. As stated earlier in this judgment, I did not find Mr.¬†Jacobsen to be a credible witness. I found that the plaintiff and Mr.¬†Landolt were credible and prefer their evidence over that of the defendant Jacobsen…

[35]         Mr. Jacobsen had his Kia parked in the northbound lane facing southbound. It is not entirely clear just how much of the Kia was in the northbound lane but it was to a substantial degree such that a northbound driver like Mr. Hart could conclude he was facing an immediate hazard.

[36]¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant was not just momentarily parked in this hazardous position but remained there for some 15 minutes, all the while scraping away at the wheel wells with a tool not designed for such work. Thus we have a vehicle, substantially in the northbound lane with a pedestrian walking around it posing an additional hazard to northbound traffic. The Kia‚Äôs head lights were on but the hazard lights were not. Given the curve and hump, the true nature of the hazard would not be readily apparent to the driver of a northbound vehicle until he rounded the curve and was so close to the parked vehicle that a collision was inevitable…

[41]¬†¬†¬†¬†¬†¬†¬†¬†¬†The two experts both agree that Mr.¬†Jacobsen ought not to have been driving on ‚Äúall season‚ÄĚ tires which they testified were completely inappropriate for northern driving.

[42]¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, Mr.¬†Hart was faced with the ‚Äúagony of collision‚ÄĚ doctrine. Given the curve and hump that obscured any clear view of just where the Kia was, he could not appreciate just what hazard was facing him. By the time he was able to see that the Kia was in fact parked substantially in his northbound lane there was almost no time to react. He cannot be faulted for opting to brake as opposed to some other manoeuvre: see¬†Soto v. Peel, 2013 BCSC 409;¬†Ayers v. Singh¬†(1997), 85 B.C.A.C. 307, 69 A.C.W.S. (3d) 207; and¬†Brook v. Tod Estate, 2012 BCSC 1947.

[43]         I also accept that Mr. Jacobsen had a duty to warn oncoming motorists of the hazard he had created by at least operating his four way flashers. The better course would have been to flag the curve with emergency reflectors but he had no such equipment: see Skinner v. Fu, 2010 BCCA 321.

 


Negligence Claim Dismissed Following Vehicle / Sled Collision

April 16th, 2014

Reasons for judgement were released today (Scott v. Brown) by the BC Court of Appeal addressing motorist liability following a vehicle collision with a two children who were “riding their sled westbound on 4th Street (in Nakusp, BC) down a gentle slope.“. ¬† The Defendant motorist was driving eastbound. ¬†It was “snowing heavily and visibility was poor“. ¬† ¬† The trial judge found that while the vehicle, travelling with its lights on, should have been visible to the Plaintiffs they may not have been visible to the Defendant with sufficient time to react. ¬†The claim was dismissed. ¬†In upholding this result the BC Court of Appeal provided the following reasons:

30]         Visibility was the most contentious issue. The trial judge found that the truck’s headlights would have been visible to the girls when they were on the dark hill and that there was no explanation for why they did not see the truck approaching. Mr. Brown testified that visibility was limited to 100-200 feet. He also testified that the light from his headlights projected 100-200 feet. He kept them on dim, as high beams reflected brightly off the snow. He could see streetlights several blocks ahead, but he could not see anything in between them. Critically, as he passed under a streetlight, the downward light reflected off the snow and made it difficult to see. He described his vision was blanketed, a whiteout, some of the worst conditions he had ever seen. Mr. Brown testified that he did not see the sled until he was halfway through the streetlight just west of the intersection. The trial judge found that if Mr. Brown was travelling 47 kph and visibility was 100 feet, he would not have been able to stop when an object came into view. However, he would have been able to stop in time if visibility was 200 feet. The trial judge found that it was not possible to determine which estimate of visibility was more accurate. The trial judge weighed the evidence and found she was unable to establish Mr. Brown was driving too fast for the road conditions. The plaintiffs had not met their burden. ..

32]¬†¬†¬†¬†¬†¬†¬†¬†¬†The evidence was unsatisfactory. The trial judge was alive to the ‚Äúpaucity of the evidence and its obvious frailties‚ÄĚ (para. 95) and the difficulty faced by Ms.¬†Armstrong and Ms. Scott in the circumstances as they bore the burden of proof.¬†

[33]         At the end of the day, the trial judge could not decide the very issues that had bearing on negligence. She could not say Mr. Brown was driving too fast for the road conditions having regard to all the circumstances. There was insufficient evidence to make key findings. She decided the case on the basis of who bore the burden of proof. The appellants failed to prove their case.

[34]         I find the trial judge made no palpable and overriding errors, and did not misapprehend evidence regarding visibility and speed. I would dismiss the appeals.

 


Bus Driver Liable Following Injury to “Elderly, Frail and Hunched” Passenger

April 2nd, 2014

Adding to this site’s archived cases addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a bus driver partly liable after putting the bus in motion when an elderly passenger was attempting to exit.

In this week’s case (Bideci v.Neuhold) the 93 year old plaintiff boarded a bus. ¬†When the bus came to his stop he “spent several seconds in the process of attempting to rise from his seat“. ¬†The bus driver failed to see this, closed the door and put the bus in motion prior to the plaintiff exiting. ¬†This caused the Plaintiff to fall resulting in injury.

In finding the bus driver liable Mr. Justice Abrioux provided the following reasons:

[72]¬†¬†¬†¬†¬†¬†¬†¬†¬†The standard of care to which Mr. Neuhold was subject included taking a careful enough look into the rear-view mirror as was appropriate under the circumstances in existence at the time. As he candidly admitted in his evidence, he was under no specific time constraints: ‚ÄúIf you‚Äôre late, you‚Äôre late‚ÄĚ. Safety of his passengers was his primary consideration.

[73]         Mr. Neuhold’s evidence was that photograph 8 of Exhibit 7 was the most accurate approximation of what he would have seen as he looked in his rear-view mirror, with a caveat being that he would not have been able to see the wheel well on the passenger side of the bus.

[74]          Mr. Bideci’s seat is clearly visible in this photograph and there were no obstructions such as someone standing or moving which would have obscured Mr. Neuhold’s view of this area.

[75]         I appreciate that Mr. Neuhold is not subject to a standard of perfection nor is he the plaintiff’s insurer. But when I apply the legal principles to which I have referred above to my findings of fact, I conclude that the defendants have not satisfied the burden on them to establish that Mr. Neuhold used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff.

[76]¬†¬†¬†¬†¬†¬†¬†¬†¬†Based on my review of the video, I am of the view that Mr. Neuhold did not look carefully enough in his rear-view mirror before deciding to perform his final outside mirror check, which preceded his putting the bus in motion. Had he in fact taken a ‚Äúlong hard look‚ÄĚ or a ‚Äúpretty significant look‚ÄĚ in his rear-view mirror as Ms.¬†Trott stated that he did, he would have seen his elderly, frail and ‚Äúhunched‚ÄĚ passenger in the process of slowly rising from his seat.

[77]         Accordingly, I conclude the defendants have not satisfied the burden on them to answer the prima facie case of negligence and I find them liable for the Accident.

 


Negligent RCMP “Bait Car” Pursuit Results in nearly $1 million in Damages

April 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, resulting in a nearly $1 million judgement following the RCMP’s negligent response to a ‘bait car’ theft.

In today’s case (Watkins v. Dormuth) the Defendant RCMP officer was responding to a bait car activation call. ¬†He proceeded North in the southbound lanes to get around traffic. ¬†At the same time the Plaintiff was making a left hand turn at an intersection. ¬†A t-bone collision occurred which resulted in serious injuries whith profound consequences and were expected to have a permanent disabling effect on the Plaintiff. ¬†Damages of close to $1 million were assessed.

The RCMP argued the Plaintiff was to blame for the collision.  Mr. Justice Blok disagreed finding the RCMP were entirely at fault.  In reaching this conclusion the Court provided the following reasons:

[78]         The provisions show there are certain prerequisites that must be met before a police officer may exercise the privileges set out in s. 122 of the Motor Vehicle Act.  In particular, the police officer must have reasonable grounds to believe that the risk of harm to members of the public from the exercise of those privileges is less than the risk of harm to the public should those privileges not be exercised.  Even where the prerequisites are met, the driving privileges afforded by the Motor Vehicle Act must be exercised with due regard for safety, having regard to certain factors.

[79]         I conclude that Cst. Dormuth did not have reasonable grounds to believe that the risk of harm to the public from exercising emergency vehicle privileges was less than the risk to the public should he not exercise those privileges.  All he knew was that there had been a bait car activation.  An activation did not mean that there was a risk of harm to the public because an activation signal could be caused by the mere opening of the bait car door or trunk.  It did not necessarily mean the car was being driven, let alone driven in a manner dangerous to the public.

[80]         This conclusion is consistent with the detachment’s bait car policy, which provides that the normal response level to a bait car activation is Code 2, that is, by proceeding immediately but without using lights or siren.  In other words, the detachment’s own policy recognizes that a bait car activation is a non-emergency event.

[81]¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendants assert that Cst.¬†Dormuth was not negligent in responding at a Code 3 level because that is how he had been trained, erroneous as it was.¬† However, I do not see that this absolves the defendants of liability since it is plain that the training given to Cst.¬†Dormuth was faulty….

[95]         Emergency vehicles do not have free rein in exercising the driving privileges accorded by s. 122 of the Motor Vehicle Act.  They may only do so within the limits set by the Emergency Driving Regulation and they are constrained by the duty to drive with due regard for safety: Frers, at para. 89.  I conclude that Cst. Dormuth had no basis to exercise any emergency vehicle driving privileges, and I conclude that in exercising those privileges he did not drive with due regard for safety in the circumstances of this case.

[96]         For these reasons I conclude that the responsibility for this accident rests entirely with the defendants.

 


BC Court of Appeal Discusses Duties of Motorists and Pedestrians in a Parking Lot

March 19th, 2014

Reasons for judgement were released today by the BC Court of Appeal addressing the legal duties of both motorists and pedestrians while in a parking lot.

In today’s case (Russell v. Parks) the Plaintiff pedestrian was walking in a parking lot and was “about 6 feet into a a marked parking stall” when the Defendant backed his vehicle into the same stall and struck the Plaintiff. ¬†At trial the the Court found the pedestrian was 2/3 at fault for the incident. ¬†In overturning this to a 25/75 split in the pedestrians favour the BC Court of Appeal provided the following reasons addressing the parties duties:

[16]¬†¬†¬†¬†¬†¬†¬†¬†¬†In my respectful opinion, the trial judge erred in law by applying s.¬†179(2), rather than ss.¬†180 and 181, to the circumstances of this case. Madam Justice Rowles‚Äô analysis in¬†Loewen v. Bernardi, and the wording of s.¬†179, when viewed as a whole, describe a code of conduct for vehicles and pedestrians who are approaching or entering a crosswalk. Where, as in this case, there are no crosswalks, ss.¬†180 and 181 are more appropriate. Section 180 imposes a duty on the pedestrian to yield the right of way to a vehicle when crossing a highway at a point¬†not in a crosswalk. Under the¬†Motor Vehicle Act, a parking lot falls within the definition of ‚Äúhighway‚ÄĚ. Mr.¬†Russell was crossing through a parking lot and it is clear that he was not using a crosswalk, therefore s.¬†180 applies. Section 181 imposes a corresponding duty on a driver ‚Äúto exercise due care to avoid colliding with a pedestrian on a highway.‚ÄĚ ¬†The standard of ‚Äúdue care‚ÄĚ will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space. This approach is consistent with¬†Bohati v. Jewell¬†(1996) 84 B.C.A.C. 161, another ‚Äúparking lot‚ÄĚ case, where this court relied on what are now ss.¬†180 and 181 to apportion liability. Sections 180 and 181, rather than s.¬†179(2), have also been relied upon in lower court decisions involving parking lots: see¬†Gray v. Ellis, 2006 BCSC 1808, and¬†Davidson v. Donnelly, [1996] B.C.J. No.¬†800 (S.C.).

[17]¬†¬†¬†¬†¬†¬†¬†¬†¬†Even if Mr.¬†Russell did leave a place of safety, the trial judge erred in his interpretation of s.¬†179(2) by considering only part of it. This provision has two components: a pedestrian must leave a place of safetyand¬†this must be done so suddenly that it is ‚Äúimpracticable for the driver to yield the right of way.‚ÄĚ The trial judge‚Äôs findings clearly indicate it was not impracticable for Mr.¬†Parks to yield the right of way. He found that Mr.¬†Parks could have stopped and avoided the accident had he been keeping a proper lookout (para.¬†34). In my view, s.¬†179(2) contemplates a situation where the pedestrian steps onto a path designated for pedestrians (such as a crosswalk) but in doing so steps immediately into the path of a moving vehicle that could not practicably yield the right of way in time. According to the trial judge‚Äôs findings, this does not describe the situation in which Mr.¬†Russell and Mr.¬†Parks found themselves.

[18]         Mr. Russell argues that if he was not in violation of the statutory obligation pursuant to s. 179(2), he is not contributorily liable. I would not disturb the trial judge’s finding that he breached his common law (and statutory) duty to exercise due care and that this contributed to his injuries. The trial judge found that Mr. Russell was looking down as he walked into the parking stall, and as a result, failed to take reasonable care for his own safety. There is no basis on which to interfere with this conclusion.

[19]¬†¬†¬†¬†¬†¬†¬†¬†¬†The next question is whether the apportionment of liability was grossly disproportionate to what this court would have ordered (see¬†Moses, supra, para.¬†33). Each assessment will turn on the facts of the case. In this instance, Mr.¬†Russell was looking down as he stepped over the barrier, and continued to look down as he took a few steps into the parking stall. Mr.¬†Parks was aware that there were pedestrians in the area, entered the lot from a direction that required him to swing wide to enter a parking stall, changed his mind at the last minute in terms of which stall he would take, shoulder checked numerous times, and ended up driving forward when he was looking backward, striking Mr.¬†Russell. Clearly both were at fault. However, finding that Mr.¬†Russell was two-thirds responsible for the accident, in my respectful view, is grossly disproportionate to his fault. The trial judge was clearly influenced by the finding that Mr.¬†Russell had breached his statutory duty under s.¬†179(2) of the¬†Motor Vehicle Act¬†by leaving a ‚Äúplace of safety‚ÄĚ. As I have explained above, this finding was in error. Although Mr.¬†Russell was looking down as he walked, he did not step off a curb or shoulder into moving traffic (which is what s.¬†179(2) is designed to prevent) and his fault should not be assessed as if he did.

[20]¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†Loewen v. Bernardi, this court reduced a finding of liability against the pedestrian plaintiff from 25% to 10% on the basis that the plaintiff‚Äôs contribution was minor. In that case, the plaintiff was half-way through a marked crosswalk when he was struck by a vehicle. I would not characterize Mr.¬†Russell‚Äôs degree of fault as ‚Äúminor‚ÄĚ. On the other hand, it was not the main cause of the accident. The main cause was the fact that Mr.¬†Parks drove forward while he was looking backward. I would allow the appeal on this ground and apportion liability on the basis of 75% against Mr.¬†Parks and 25% against Mr.¬†Russell.

 


 

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