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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
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.
September 17th, 2013
Interesting reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff’s claim following a bicycle/vehicle collision.
In last week’s case (Miles v. Kumar) the Plaintiff was cycling Eastbound along Grandview Highway in Vancouver when he moved from the right into the left lane in preparation for a left turn at an upcoming intersection. ¬†The Defendant was travelling in this lane and a collision occurred shortly after the lane change. ¬†Mr. Justice Bernard found the plaintiff fully at fault an in doing so reached the following conclusions:
¬†¬†¬†¬†¬†¬†¬†¬†¬†In summary, with due regard for all the foregoing, I make the following determinations: (a)¬†that as Ms¬†Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b)¬†that the evidence does not reasonably support a finding that Ms¬†Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c)¬†that when Mr.¬†Miles entered the left lane in front of Ms¬†Kumar his bicycle was servient to Ms¬†Kumar‚Äôs car; and, (d)¬†that when Mr.¬†Miles entered the left lane he did so in breach of his statutory duties pursuant to ss.¬†151(a)¬†and 151(c)¬†of the¬†MV Act.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a)¬†that Ms¬†Kumar ought to have known that Mr.¬†Miles would disregard her right of way; or, (b)¬†that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms¬†Kumar to avoid colliding with Mr.¬†Miles (see¬†Walker v. Brownlee,¬†supra).
Interestingly the Defendant never testified at trial despite fault being disputed. ¬† The Court was asked to draw an adverse inference but Mr. Justice Bernard refused to do so. The Court provided the following comments on this issue:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms¬†Kumar – ‚Äúthe only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr.¬†Miles, and as to why she made no attempt to avoid a collision‚ÄĚ – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites¬†Bronson v. Hewitt, 2010 BCSC 169. In¬†Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendants submits that¬†Bronson¬†is distinguishable from the case at bar. In¬†Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants‚Äô position is that the plaintiff has failed to prove the negligence alleged. In support they cite¬†McIlvenna v. Viebig,  B.C.J. No.¬†292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in¬†McIlvenna¬†stated:
¬†¬†¬†¬†¬† The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in¬†Halsbury’s Laws of Canada¬†[Civil¬†Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both¬†Civil¬†Procedure, and¬†Evidence¬†headings, respectively, as follows:
It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.
There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party’s failure to call a witness whose testimony would be expected to assist the party’s case.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms¬†Kumar would be to reverse the onus of proof; moreover, Ms¬†Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to ‚Äúread in‚ÄĚ many of Ms¬†Kumar‚Äôs answers as evidence in the plaintiff‚Äôs case.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†I am satisfied that there is a critical distinction between the case at bar and that in¬†Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff‚Äôs failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms¬†Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.
September 5th, 2013
Adding to this site’s archived judgement database addressing collisions involving pedestrians, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a left hand turning vehicle and a pedestrian.
In last week’s case (Han v. Chahal) the Plaintiff was walking in a marked crosswalk southbound across 72nd Avenue in Surrey, BC. ¬†At the same time the Defendant motorist approached from the oncoming direction and attempted to turn left. ¬†The Defendant struck the Plaintiff. ¬† The Defendant conceded fault at trial but argued the Plaintiff was 25% responsible. ¬†Mr. Justice Verhoeven disagreed finding the Defendant was solely to blame for this collision. ¬†In reaching this conclusion the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes.¬† She testified that she had proceeded about four steps when she was struck. ¬†The independent witness, Mr.¬†Singh, estimated that she was struck after she had crossed one lane.¬† Ms.¬†Chahal‚Äôs evidence about the accident details was generally vague.¬† However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s.¬†165 of the¬†Act.¬† Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb. ¬†I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant‚Äôs vehicle. ¬†She was aware of the defendant‚Äôs vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff.¬† The plaintiff‚Äôs evidence was that the defendant‚Äôs vehicle was moving when she first saw it, but it stopped.¬† The defendant‚Äôs evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping. ¬†This scenario is also more consistent with the evidence of Mr.¬†Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going ‚Äúfast‚ÄĚ.¬† This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms.¬†Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms.¬†Han left the curb and when she was struck.¬† Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not. ¬†I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident.¬† There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant‚Äôs vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision.¬† The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant‚Äôs intentions nor did she have any means to do so.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendants rely upon¬†Brumm v. Inglis,  B.C.J. No.¬†1181. However, that case is clearly distinguishable. ¬†There, the plaintiff walked in front of the defendant‚Äôs vehicle as it was stopped at an exit from a driveway onto a busy street, waiting for a break in heavy traffic. ¬†The plaintiff could see the driver of the vehicle.¬† She chose to walk in front of the vehicle, which pulled forward as she did so. ¬†In this context, Mr.¬†Justice Pitfield stated:
She knew of the defendant’s intended actions. She knew or should have known there was danger to her personal safety if she passed in front of the vehicle without first making eye contact with the defendant and the vehicle accelerated suddenly in an attempt to enter the busy flow of traffic.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The circumstances of the case at bar bear no resemblance to those in¬†Brumm.¬† More specifically, in the case at bar, it cannot be said that the plaintiff ‚Äúknew of the defendant‚Äôs intended actions‚ÄĚ other than perhaps in a general way, nor can it be said that there was something that she realistically could or should have done or refrained from doing in consideration for her own safety.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I conclude that the defendants have not established that the plaintiff was contributorily negligent.¬† It follows that the defendants are fully liable for the accident.
August 30th, 2013
Section 2 of BC‚Äôs Apology Act¬†holds that an apology ‚Äúdoes not constitute an express or implied admission of fault or liability by the person in connection with that matter,‚ÄĚ and that it ‚Äúmust not be taken into account in any determination of fault or liability in connection with that matter.‚ÄĚ ¬†Although this law has existed for several years it has received little judicial attention. ¬†In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.
In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision. ¬†Fault was disputed. ¬†After the collision the cyclist apparently apologized to the motorist. ¬†Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Defence counsel pointed to some statements made by Ms.¬†Dupre to Ms.¬†Patterson after the accident, when Ms.¬†Dupre apologized.¬† In view of my conclusion that Ms.¬†Patterson’s negligence caused the accident, I will address this point only very briefly.
¬†¬†¬†¬†¬†¬†¬†¬†¬†First, it was unclear, based on the submissions, how I was being asked to use Ms.¬†Dupre’s statements and whether they were admissible for the purpose for which they were being tendered.¬† Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability: ¬†see the¬†Apology Act, S.B.C. 2006, c. 19, s.¬†2.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms.¬†Dupre explained that when she spoke to Ms.¬†Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused.¬† She did not remember saying anything about having over-extended or pushed herself too far on the bike ride.¬† Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized.¬† This describes Ms.¬†Dupre’s situation.¬† Her statements do not affect my conclusion that Ms.¬†Patterson’s negligence caused the accident.
August 29th, 2013
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision involving a right hand turning vehicle and a cyclist attempting to pass the vehicle on the inside lane.
In this week’s case (Nelson v. Lafarge Canada Inc.) the Plaintiff was “cycling hard and fast alongside the Truck as the two approached the Intersection in tandem.¬† Mr.¬†Nelson’s speed exceeded the Truck’s and it is apparent he was overtaking it on the right as the Truck turned onto Nanaimo.” ¬†There was video of the actual collision presented in evidence and it demonstrated that the Truck driver “did engage the Truck’s right signal prior to executing his right turn onto Nanaimo.¬† I accept that he did so well before he arrived at the Intersection after the light had turned green.”
As the truck turned, on a still green light, a collision occurred. ¬†Madam Justice Dickson found both parties to blame for the collision with the cyclist bearing 65% of the fault. ¬†In reaching this concluding the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I agree with counsel for the defendants that Mr.¬†Conarroe was the dominant driver in the circumstances of this Accident.¬† He was proceeding on a green light in the appropriate lane and had signaled his right turn well in advance.¬† He had also looked around as he turned onto Nanaimo and, generally speaking, was entitled to assume that others would obey the rules of the road.¬† Nevertheless, the presence of cyclists in the adjacent curb lane was both proper and predictable.¬† In addition, I have found Mr.¬†Conarroe could and should have kept a more vigilant look-out in the period leading up to the right turn to ensure that it could be safely made.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Had Mr.¬†Conarroe kept a more vigilant look-out after he stopped for the red light on Hastings and before he started his right turn he would have observed Mr.¬†Nelson cycling hard and fast in the curb lane behind or beside him. ¬†It would have been apparent that Mr.¬†Nelson was focusing straight ahead and might attempt to overtake on the right as the two approached the green light, despite the riskiness of such conduct.¬† Armed with this knowledge, Mr.¬†Conarroe could have avoided the Accident by waiting to commence his turn in the Intersection until it was clear either that Mr.¬†Nelson had abandoned the unfolding attempt to pass on the right or completed it successfully.¬† His failure to do so was a failure to take reasonable care and a contributing cause of the Accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Nelson also failed to take reasonable care for his own safety, which failure was a contributing cause of the Accident.¬† Although, based on¬†Jang, I find that the curb lane was a through lane for cyclists I also find it was unsafe for him to attempt to pass the right-turning Truck when there was little, if any, margin for error associated with such an attempt.¬† As noted, this was a breach of s.¬†158(2)(a) of the¬†Act.¬† It also fell well below the standard of care to be expected of a reasonably competent cyclist in all of the circumstances.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Nelson suffered serious harm and damage as a result of the Accident.¬† The damage has two proximate causes:¬† the negligence of both parties.¬† In these circumstances, liability must be apportioned between the two.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In assessing the respective fault and blameworthiness of the parties I must evaluate the extent or degree to which each departed from the standard of care owed under the circumstances.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In balancing blameworthiness, I find Mr.¬†Nelson’s conduct constituted a significant departure from the requisite standard of care which created a risk of serious harm.¬† He was aware of the Truck travelling eastbound on his left but focused only on his own path forward and did not check for an activated right turn signal, which was there to be seen.¬† Instead, he tried to pass the Truck on the right without first determining whether such a movement could be made safely.¬† In my view, such conduct was very careless.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Conarroe’s conduct also constituted a significant departure from the requisite standard of care, taking into account the vigilance reasonably to be expected of a professional truck driver.¬† He waited far too long to look carefully and thoroughly around himself as he prepared to turn right.¬† This is particularly true given his knowledge of the Truck’s many blind spots.¬† In consequence, Mr. Conarroe was unaware of the fact that Mr.¬†Nelson was cycling hard and fast in the adjacent curb lane after the light changed colour at the Intersection.¬† This failure was not momentary or minor, and it carried the risk of foreseeable harm of considerable magnitude.¬† In my view, however, it was not of the same degree as Mr.¬†Nelson’s failure to take reasonable care for his own safety in attempting to pass a right-turning Truck on the right.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In all of the circumstances, I conclude that 65% of the fault for the Accident should be borne by Mr.¬†Nelson and 35% should be borne by Mr.¬†Conarroe.
August 21st, 2013
Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway. ¬†The Plaintiff had no recall of how the collision occurred. ¬†The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence. ¬†Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred. ¬†In so concluding the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability.¬† See¬†Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like¬†Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident. ¬†In such cases, the plaintiff bears the burden of proof. ¬†The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a¬†prima facie¬†case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized: ¬†see paras. 23-24.
¬†¬†¬†¬†¬†¬†¬†¬†¬†However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident.¬† The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane.¬† The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction.¬† While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived.¬† The only reasonable inference to draw is that the defendant was driving while drunk.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a¬†prima facie¬†case of negligence against the defendant.¬† The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway. ¬†There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash. ¬†The Plaintiff, the sole survivor, had no recall of what occurred. ¬† The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
¬†¬†¬†¬†¬†The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash.¬† The posted speed limit was 110 kph.¬† The vehicle was travelling in excess of 130 kph at the time of the accident.¬† As Sgt. Nightingale put it, the crash was caused by speed and the driver‚Äôs inattentiveness.¬† I accept this evidence.¬† Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention.¬†
¬†¬†¬†¬†¬†In such circumstances, negligence can be inferred:¬†Nason v. Nunes, 2008¬†BCCA 203 at para. 8.¬† The defendants led no evidence to the contrary. ¬†