ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims 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 ICBC injury 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

BC Court of Appeal – Losing Control on Shoulder of Road is Prima Facie Negligence

December 13th, 2017

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement as being ‘clearly wrong’ and finding that when a motorist loses control on the shoulder of a road a prima facie case of negligence is made out.

In today’s case (Gaebel v. Lipka) the Plaintiff was a passenger in a vehicle operated by the Defendant.  The Defendant drifted on to the shoulder of the road then “lost control, the vehicle fishtailed, crossed the road to the opposite side, travelled up onto an embankment, launched into the air and rolled over three times before landing.”.

The claim was dismissed at trial with a finding the Defendant was not negligent.  The Court of Appeal overturned this finding and provided the following reasons:

[29]         In my view driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. On this evidence, the only reasonable inference that can be drawn was that Mr. Lipka drove on the shoulder either because of a lack of attention or because he approached the curve too fast, or both.

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.


Motorcyclist Not At Fault for Crashing in “Agony of the Moment”

December 13th, 2017

The legal principle of “agony of collision” sometimes also called “agony of the moment” gives wide latitude to a Plaintiff who is confronted with a sudden and unexpected hazard on the roadway due to someone else’s negligence.  This principle was in action in reasons for judgement published today by the BC Supreme Court, Vancouver Registry.

In today’s case (Biggar v. Enns) the Plaintiff was operating a motorcycle and was riding in a staggered fashion behind the Defendant who was also operating a motorcycle.  The Defendant rounded a curve and was out of sight of the plaintiff.  During this time the Defendant took his eyes off the road and drifted into the oncoming lane of traffic.   He crossed back over the centre line and re-entered his intended lane of travel roughly perpendicular to the proper direction of travel.

At this moment the plaintiff rounded the corner, saw the Defendant in his lane and braked hard losing control of his bike and crashing.

The Defendant argued the Plaintiff was partly at fault as a more prudent motorist could have avoided the hazard he posed.  The Court disagreed and in doing so relied on the agony of collision principle finding the Defendant fully at fault.  Madam Justice Sharma provided the following reasons:

[50]         In my view, the phrase “agony of the moment” aptly describes the plaintiff’s situation. The plaintiff’s first reaction was to avoid colliding with the defendant, or an oncoming vehicle.  Therefore, it was a reasonable course of action for him to brake hard which caused his bike to fall and slide. The defendant agreed that in order to avoid hitting him, the plaintiff had to brake hard, and that made the plaintiff’s bike fall.

[51]         In my view the evidence is clear that the plaintiff was riding in a prudent and careful manner. There is no evidence that his speed was inappropriate for the conditions of the road or any other circumstance.

[52]          As noted earlier, I do not accept the defendant’s argument that once he lost sight of the defendant in front of him, the plaintiff should have slowed down more than he did. Also, I have already concluded the plaintiff was driving at an appropriate rate of speed, and that he had already slowed down.

[53]         Drivers are entitled to assume that other people will be driving in a prudent and safe manner. In Bern v. Jung, 2010 BCSC 730 the plaintiff lost control of a bicycle because of a sudden and unexpected presence of the defendant’s vehicle travelling in the wrong direction. The Court noted, at paras. 13-14, that the plaintiff was forced to act quickly and apply his brakes quickly and that he should not be found contributorily negligent for doing so.

[54]         In this case the plaintiff was entitled to assume that his friend had negotiated the curve safely; coming upon the defendant situated in front of him and perpendicular to his line of traffic was unexpected and sudden. The plaintiff cannot be blamed for doing what I find to be the only reasonable thing he could do to avoid a more serious accident: applying his brakes hard. I conclude it was the defendant’s string of actions (looking to the canyon, and trying to get back in position instead of waiting on the shoulder) that caused the accident.

[55]         For all those reasons, I find the defendant 100% liable for the accident.


Motorist Found Fully At Fault For Clipping Cyclist While Attempting to Pass

December 4th, 2017

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing fault for a collision involving a cyclist and a motorist.

In this week’s case (McGavin v. Talbot) the Plaintiff had merged onto the roadway where a bike lane ended.  Shortly thereafter the Defendant, proceeding in the same direction of travel, clipped the Plaintiff’s bike while a vehicle attempting to pass causing him to lose control and crash.  The motorist denied fault.  Mr. Justice Masuhara found fault rested fully with the motorist in these circumstances and provided the following reasons:

[20]         I find that Mr. McGavin had merged on the roadway at the end of the bike lane.  Mr. McGavin estimates he was riding at about 20-25 kmph which I accept.  I also find based on the testimony of Ms. Talbot, that Mr. McGavin was ahead of the Mr. Talbot’s pickup when the bike lane ended.  In my view, Mr. McGavin had the dominant position on the roadway beyond the end of the bike lane, and Mr. Talbot passed Mr. McGavin when there was not a safe distance between his pickup and Mr. McGavin to do so.  Mr. Talbot did not pass at a safe distance. 

[21]         I find the passing occurred before the X in the lane and before the start of guard rails for the Colquitz Bridge (Exhibit 1, Tab 4) and that the rear of the pickup driven by Mr. Talbot struck or clipped the handle bar of the bicycle ridden by the plaintiff causing the plaintiff to fall at about the start of the guard rails by the Colquitz Bridge. 

[22]         As a result, it is my determination that Mr. Talbot is entirely at fault for Mr. McGavin’s fall. 

[23]         My finding here is made on the bases that:

(a)            A cyclist has the same rights and duties of a driver of a vehicle pursuant to s. 183(1) of the Motor Vehicle Act, R.S.B.C. 1996, s. 318;

(b)            A driver of a vehicle overtaking another vehicle must cause its vehicle to pass to the left of the other vehicle at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle pursuant to s. 157(1); and 

(c)             A driver of a vehicle must drive with due care and attention and must have reasonable consideration for other drivers pursuant to s. 144.


Vehicle Dealer Found at Fault For Crash By Thief By “Leaving a Truck Available to be Stolen”

September 13th, 2017

If you own a vehicle that is stolen and the thief injures others in a collision can you be liable?  According to a case released today by the BC Supreme Court, the answer is yes.

In today’s case (Provost v. Bolton) the Defendant stole a truck owned by Chevrolet Dealership. After stealing the vehicle a police pursuit occurred and several crashes arose.

There was no dispute that the thief was liable.  In an interesting development the Court went on to find that the dealership was liable as well and the police bore some liability for engaging in the pursuit.  In finding the dealership partly liable Mr. Justice Kelleher provided the following reasons:

[14]         At about 8:58 a.m. on April 24, 2012, Mr. Katerenchuk left an unlocked one-ton 2011 GMC Sierra K2500 pickup truck (the “Truck”) outside a detail bay at the dealership Dueck. The Truck had been sold and was to be detailed that morning in preparation for delivery to the purchaser.

[15]         The Truck was left outside the dealership detail bay by Mr. Katerenchuk with the keys in the ignition, the engine running, and the doors unlocked. The Truck was parked in an area open to public view. Anyone walking or driving along Terminal Avenue past the dealership could see the Truck, along with other vehicles on the lot, if they looked in that direction.

[16]         The dealership is not fenced in. It is an open area where people can walk around the vehicles…

[19]         The Truck remained parked outside, with the keys in the ignition, the engine running, and doors unlocked for about 40 minutes when the defendant, Mr. Bolton, got in the Truck and drove away…

[146]     Here, I find that it is reasonably foreseeable that a stolen vehicle would cause serious damage and injuries to the police and bystanders in the vicinity of where the police are attempting to recover the stolen vehicle from the thief.

[147]     The Dueck employees called and expected the police to quickly attend to recovering the stolen Truck. Moreover, Dueck authorized OnStar to activate the GPS tracking system in the stolen Truck for the purpose of assisting the police in locating the Truck so that it could be recover

[148]     The circumstances in this case differ from those in cases like Hollett and Spagnolo where the accidents did not occur during the theft.

[149]     I am satisfied that, in these circumstances, it was reasonably foreseeable that persons and property may be injured or damaged during the recovery of a vehicle by the police in the immediate aftermath of a theft…

[161]     In sum, Dueck had a duty to Constable Provost and Ms. Brundige and the Attorney General to secure the vehicle in its lot and Dueck breached this duty and this breach caused the injuries and damages.

In finding the police partly liable for engaging in the pursuit the Court noted as follows:

[188]     Here, I conclude that the breach of the standard of care by RCMP officers is on the part of Constable Whitney, Constable Lee and Corporal Waldron. All three officers engaged in a high speed pursuit of the truck in an urban area in the middle of the day. Moreover, they did not appropriately comply with an order to terminate the pursuit when it was made by Staff Sergeant Stark and repeated by Corporal Peters.

[189]     Constable Whitney heard the order to discontinue the pursuit. His duty was to deactivate his lights and sirens (which he did) and to stop the vehicle at the side of the road and state his location. He did not stop and do that. Instead, he continued following the Truck on River Road…

[201]     Constables Lee and Whitney and Corporal Waldron proceeded to follow the vehicle. I find that they were, as Mr. Laughlin and Constable Hartigan testified, proceeding quickly. Their actions, on a balance of probabilities, caused Mr. Bolton to continue to drive at a high rate of speed. On the evidence, but for their pursuit, the accident with Ms. Brundige would not have occurred.

[202]     I find the defendant, the Minister of Justice for the Province of British Columbia, liable for the negligence of the officers.


Cyclist With No Recollection of Collision Has Claim Dismissed Against Unidentified Motorist

August 14th, 2017

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing an injury claim against involving an unidentified motorist because the Plaintiff had, due to injuries, no recollection of the collision and no evidence to establish driver negligence.

In today’s case (Salo v. ICBC) the Plaintiff was riding his hybrid bicycle in close proximity to an SUV when something occurred and a witness “saw the bicycle and Mr. Salo inmid-air” about ten feet behind the SUV.”.

The Plaintiff suffered a brain injury in the event and had “absolutely no recollection as to what happened“.  The SUV driver was not identified.  The witness did not see what exactly transpired to send the Plaintiff airborne.

The Plaintiff sued for damages alleging the SUV driver was negligent.  The Court dismissed the claim finding the above did not discharge the Plaintiff’s burden of proof on a balance of probabilities.  In dismissing the claim Mr. Justice MacKenzie provided the following reasons:

[39]         In this case there is no direct evidence as to what caused Mr. Salo to become airborne when the SUV was stopped at the stop sign.  Both counsel have suggested possible scenarios or explanations as to what might have happened, some more fanciful or implausible than others.  But, as the defendant asserts, absent any evidence “about the movements of the SUV before the collision”, it would be pure speculation to infer negligence on the part of the SUV driver.  In addition, whether the SUV turned right a few seconds after Mr. Cunningham observed it stopped at the intersection or a moment or two later, this, in my view, does not assist the court in determining what caused Mr. Salo to become airborne near the rear of the SUV, or in drawing an inference that the SUV driver was negligent.

[40]         Given the paucity of evidence as to what occurred on July 3, 2014 when Mr. Salo unfortunately suffered significant injuries while riding his bicycle, I agree with the defendant when it submits there are no positive proved facts from which I can infer that the unknown driver was negligent.

[41]         As a result, the action is dismissed.  Subject to any agreement between the parties, the defendant is entitled to costs on Scale B.


BC Court of Appeal – Cyclist 50% at Fault for Collision for Passing Vehicles on the Right

July 12th, 2017

Cyclists commonly split a single lane of traffic by riding near the curb and passing vehicles stopped at an intersection on the right.  Reasons for judgement were released today noting that doing so not only violates the Motor Vehicle Act but can be negligent as well.

In today’s case  (Ilett v. Buckley) the Court overturned a trial judges finding of 100% responsibility of the Defendant driver.  The court summarized the facts as follows:

[5]             Mr. Ilett was riding on the shoulder of Admirals northbound.  He was passing to the right of the slow-moving vehicles.  Other cyclists were riding on the shoulder in the same way.  He considered the shoulder to be a cycle lane.  The road was flat for 300 yards leading to the intersection.  He was seen approaching the intersection by the driver of the vehicle that was stopped behind Ms. Buckley’s vehicle, Messa Mattina; he was visible to her for a significant distance.  Mr. Ilett scanned the traffic as he rode and he saw the large vehicle at the intersection ahead.  He saw the gap in the northbound traffic ahead of that vehicle opening.  He did not apply his brakes to slow his bicycle.

[6]             The large vehicle precluded Ms. Buckley and Mr. Ilett from seeing each other as she began her turn and he closed on the intersection.  Accepting Ms. Mattina’s testimony, the judge found that Ms. Buckley commenced her turn slowly but, before she could see Mr. Ilett approaching, she accelerated across the northbound traffic lane.  Nearly the whole of the front half of her vehicle was across the shoulder when, after hearing a screech of brakes, Mr. Ilett crashed into it.  His momentum was such that he was carried over the hood of the vehicle and onto the pavement beyond.  The impact caused him to suffer various injuries.  He was taken to hospital.

In finding the cyclist should bear 50% responsibility for this crash the Court of Appeal noted as follows:

[23]         He was riding on the shoulder of the road at speed, passing the slow-moving northbound vehicles.  He failed to recognize, as he should have, that he was not riding in a designated cycle lane and, at least under the Act, was not permitted to pass vehicles on the right as he was.  He was approaching an intersection.  He saw the gap in the northbound traffic open ahead of a large vehicle which would permit a southbound vehicle on Admirals to turn left onto Seenupin.  He could not see whether the intersection was clear because the large vehicle was obstructing his vision.  He made no attempt to slow down to see whether the intersection was clear – whether any vehicle was turning into the gap that had opened.  He proceeded to pass the large vehicle on its right, entered the intersection, and immediately collided with Ms. Buckley’s vehicle.

[24]         It is difficult to see on what basis the judge found in effect that, by virtue of s. 174, Ms. Buckley had a duty to yield to Mr. Ilett such that he effectively had the right of way when under s. 158 of the Act he was not permitted to pass the large vehicle on the right and enter the intersection as he did.  It cannot be that one applicable section of the Actis to be taken to be a factor in establishing the standard of care but another section that would apply in the circumstances is not.  It is not for the court to pick and choose between interrelated sections that apply.  Rather it must be the whole of those sections, and the extent to which taken together they bear on the circumstances, that may be considered a factor in determining the standard of care.  To do otherwise would appear to amount to legal error. ..

[33]         As stated, the cause of the accident was primarily that neither Ms. Buckley nor Mr. Ilett saw each other before the collision.  That was because neither exercised the measure of caution necessary to discharge their duty to make a reasonable effort to ensure they could proceed as they intended safely.

[34]         It is not possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.


Driver 25% At Fault For Being Rear Ended Due to “Sudden Stop”

May 23rd, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.

In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.


Street Racer Found Partly Liable for Other Vehicles Fatal Crash

March 27th, 2017

Interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a street racer partly liable for the death of a passenger in another vehicle that he did not collide with.

In today’s case (Suran v. Auckland) Cadillac and a Chrysler 300 were involved in a street race.  Police subsequently blocked off the road and the driver of the Cadillac was apprehended  The driver of the Chrysler backed up and drove around the road block and “proceeded down a steep embankment and dropped over a retaining wall, before finally coming to rest at the bottom of a ravine.”.  A passenger in the vehicle  died when”he was unable to extricate himself from the vehicle when it caught fire. His body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground.

The passenger’s family sued and both motorists were found partly to blame with the passenger himself being faulted with 25% contributory negligence.  In holding the driver of the Cadillac partly at fault for the death even though he was in police custody at the time Madam Justice Burke provided the following reasons:

[195]     I conclude Mr. Marwaha in the Cadillac and Mr. Auluck in the Chrysler 300 were engaged in a common (unlawful) course of action that ultimately precipitated the catastrophic accident and death of Mr. Suran. It was reasonably foreseeable, as argued by Ms. Suran, that participation by Mr. Marwaha in a street race at high speed on a busy street would attract police attention and action, which it did. It was also reasonably foreseeable that Mr. Auluck would flee the police as he did, based on his erratic and dangerous behaviour throughout the evening.

[196]     There is, therefore, sufficient proximity and foreseeability for Mr. Marwaha to be found partially liable for the accident. As he was indeed stopped by the police and could no longer participate in the race, I conclude Mr. Marwaha’s culpability for the accident lies at 10%.

 


BC Court of Appeal – No Reverse Onus in Bus Driver Liability Claims

January 10th, 2017

There are a line of cases suggesting that once a plaintiff passenger establishes that he or she was injured while riding on a public carrier, a prima facie case of negligence is made out.

Today reasons were released by the BC Court of Appeal finding this is not so.

In today’s case (Benavides v. ICBC) the Plaintiff was awarded damages after being injured on a bus.  At trial the Court found the driver was negligent.  On appeal the BC Court of Appeal noted that the trial judge was wrong in finding there is a reverse onus in such cases however upheld the result on the basis that there was sufficient evidence to establish driver negligence.

The BC Court of Appeal provided the following reasons setting out the principles of liability:

[17]         I draw from this review of the law the following principles:

·       The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.

·       The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.

·       Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.


Motorist Found Fully At Fault For Crash Despite Being Rear-Ended

October 13th, 2016

Although it is the exception rather than the norm, when a motorist is rear-ended they can sometimes be found partly if not fully at fault for a collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, with such an outcome.

In today’s case (Bingul v. Youngson) the Plaintiff was rear-ended by a dump-truck driven by the Defendant.  The parties had different versions of how the collision occurred but the Court noted concerns with the Plaintiff’s credibility and accepted the Defendant’s testimony.  The court found that the Plaintiff abruptly moved into the lane of traffic occupied by the Defendant when it was unsafe to do so, namely when he was stopping for an intersection up ahead.  In finding the Plaintiff fully at fault and dismissing the claim Madam Justice Baker provided the following reasons:

[53]         Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident.  I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.

[54]         I am unable to conclude that anything done or not done by Mr. Youngson constituted negligence that caused or contributed to the collision.  Mr. Youngson testified that as he was approaching the intersection with Clark Drive he anticipated having to bring his vehicle to a stop for a red light.  He braked and down-shifted and reduced his speed to 30 to 35 kph as he approached the intersection.  He testified that had Mr. Bingul not suddenly moved into his lane ahead of him, he would have able to bring his vehicle to a complete stop at or before the stop line, but that Mr. Bingul’s move reduced his stopping distance to an unsafe degree.

[55]         Mr. Bingul was aware that there was a large and heavy vehicle in the lane.  I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

[56]         I therefore dismiss the plaintiff’s claims against all defendants.