ICBC Law

As previously discussed, Section 10 of the BC Workers Compensation Act can strip people of their right to sue if they are injured in the course of their employment by someone else in the course of their employment.

When a police officer in the course of their duties injuries someone through negligence they may be subject to this bar.  However, when an RCMP officer is negligent they usually enjoy personal immunity from lawsuits and instead the injured party needs to look to the Minister of Public Safety and Solicitor General for compensation who are exposed by statute for liability when RCMP members are negligent in the course of their duties.  (Note: this Ministry has recently been overhauled and renamed the Ministry of Justice)

Interesting reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, discussing the interplay of the WCB Bar to lawsuits and actions against the Minister of Solicitor General for negligence of RCMP officers.

In last week’s case (Aitken v. Bethell) the Plaintiff was seriously injured while sitting in a parked vehicle.  The RCMP were in pursuit of the Defendant Bethell who lost control of his vehicle, colliding with another, and eventually causing a collision with the Plaintiff’s vehicle.  The Plaintiff sued various parties including the police officer.

Both the Plaintiff and the Police officer were found to be in the course of their employment at the time of the crash.   The Minister of Public Safety and Solicitor General brought an application to have the lawsuit against them dismissed relying on the WCB section 10 bar.  Mr. Justice Halfyard refused to do so finding that while the bar could prevent the lawsuit against the individual officer, the Minister did not enjoy the same immunity as they were not an ‘employer‘ and their liability was created by virtue of statue.  In permitting the claim to proceed Mr. Justice Halfyard provided the following reasons:

[66] I have attached s. 10(1) of the Act as an appendix to these reasons. It seems to me that, in a negligence action for damages for personal injury, in order for a defendant to succeed in this defence, it must be established:

a) that the plaintiff, at the time of the alleged injury, was a “worker;”

b) that the alleged injury “[arose] out of and in the course of [the plaintiff’s] employment;”

c) that the defendant was the plaintiff’s employer, or the plaintiff’s co-worker, or “any employer within the scope of this Part” (i.e., Part 1 of the Act), or “any worker;” and

d) that the conduct of the defendant which is alleged to have caused the injury “arose out of and in the course of employment within the scope of this Part” (i.e. Part 1 of the Act).

[67] Where the statutory bar applies in favour of a defendant, the plaintiff cannot maintain his or her action as against that defendant. The plaintiff is restricted to making a claim for workers compensation in respect of the injury caused by that defendant.

[68] It appeared to be common ground that, if the Minister was an employer within the meaning of the Workers Compensation Act, then s. 10(1) would be an absolute bar to any action being brought against him by the plaintiff, i.e., a “worker,” (for any tort allegedly committed by him or by a police officer), even though neither the government nor the Minister was the employer of the police officers involved. The potential scope of the statutory bar appears to be broad…

[80] It seems to me that the Court of Appeal is saying, by necessary implication, that the province cannot be vicariously liable under s. 11 of the Police Act, and that only the Minister can be. If that is so, then on hindsight, it would appear that Mr. Justice Macaulay should not have granted judgment against both the government and the Minister, but should only have found the Minister to be vicariously liable. To my mind, that result cancels out the argument of the applicants based on Hill v. Hurst.

[81] If the plaintiff had sued the Government of British Columbia (which would have to be named as “Her Majesty the Queen in Right of the Province of British Columbia”: s. 7 of the Crown Proceedings Act), the finding of WCAT that the government was an employer within the meaning of the Workers Compensation Act could have the legal effect of entitling the government to the statutory bar in s. 10 of the Act (but only if the conduct of the government, or its servant or agent, was a cause of the injury, and that conduct “arose out of and in the course of employment”). But the plaintiff has not sued the government, nor could he have sued the government, in my opinion. I am not persuaded that the Minister should be accorded the status of an employer for the purpose of s. 10(1) of the Act, simply because the government is an employer and because the Minister is the designate, or is the agent of, the government for the purposes of the Police Act.

When a driver proceeds into the on-coming lane of travel to overtake another vehicle care must be taken.  This is particularly so near intersections.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver, Registry, addressing fault for a collision arising in such circumstances.

In yesterday’s case (Johel v. ICBC) the Plaintiff stopped at a stop sign.  She intended to make a left hand turn.  The vehicle approaching from her left was slowing and signalling intending to make a right hand turn.  The Plaintiff felt it was safe to proceed with her turn and entered the intersection.  At the same time the Defendant’s vehicle chose to pass the third party by entering the on-coming lane of travel.  A collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)

The Defendant fled leaving the Plaintiff with the remedy of suing ICBC under section 24 of the Insurance (Vehicle) Act.  Ultimately Mr. Justice Bernard found the unidentified vehicle fully at fault for the crash.  In doing so the Court provided the following reasons for judgement:

[13] In the circumstances of the case at bar, the obligations of the plaintiff under the Act are found in ss. 165(2), 186, and 175(1).

[14] Section 165(2) applies to drivers making left turns at intersections where traffic is permitted to move in both directions on each highway entering the intersection. The provision sets out the obligations of a driver in such a situation. Section 186 obliges a driver approaching a stop sign to stop at the marked stop line. There is no evidence or suggestion that Ms Johel failed to comply with these rules of the road.

[15] Section 175(1) sets forth the obligations of a driver entering a through highway from a stop sign. The defendants say the plaintiff failed to yield, as required by this provision. Section 175(1) reads as follows:

175(1). If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b) having yielded, the driver may proceed with caution.

[16] The statutory obligations of the defendants are found in ss. 155(1)(c), 157(1), 159, 160, and 175(2) of the Act.

[17] Section 155(1)(c) obliges a driver to drive to the right of a single line, broken or solid, except only when passing an overtaken vehicle. There is no evidence or suggestion that the defendant driver drove to the left of the solid yellow line except for the purpose of overtaking Mr. Lam.

[18] Section 157(1) sets forth the obligations of the overtaking vehicle vis-à-vis the overtaken vehicle. There is, again, no evidence or suggestion that the defendant driver did not comply with this rule.

[19] Sections 159 and 160 set forth the obligations of drivers passing on the left. They state as follows:

159. A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

160. A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances.

[20] Section 175(2) obliges a driver on a through highway to yield to a vehicle which has entered the highway in compliance with s. 175(1). The plaintiff says the defendant driver of the white car failed to yield, as required by this provision. Section 175(2) states as follows:

175(2). If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway….

[29] Having regard to all the evidence and the positions of the parties, I find: (a) that Ms Johel was attentive and observant while stopped at the stop sign; (b) that Ms Johel proceeded with caution into the intersection and, at the time, the only traffic in her view was the car of Mr. Lam; (c) that the defendants’ white car was, at the time, to the left of Mr. Lam and, thus, hidden from Ms Johel’s view; and, (d) that at the time of collision, the white car was straddling the centre line and Ms Johel’s car was crossing it and heading slightly eastward.

[39] Having regard to all the foregoing, I conclude: (a) that when the defendant driver overtook Mr. Lam he or she did so in breach of ss. 159 and 160 of the Act; (b) that the defendant driver failed to meet the requisite standard of care; and (c) that the defendants are solely at fault for the collision.

While Pedestrians are allowed to cross streets in a crosswalk the right is not absolute.  One limitation in section 179 of the BC Motor Vehicle Act addresses pedestrians walking in front of a moving vehicle “that is so close it is impracticable for the driver to yield the right of way“.  In these circumstances a Pedestrian could be faulted for a resulting collision even if they would otherwise have the right of way.  Reasons for judgement were released yesterday by the BC Supreme Court, Nelson Registry, considering this obligation in a personal injury lawsuit.

In yesterday’s case (Cairney v. Miller) the Plaintiff was injured in a 2009 collision.  The Plaintiff was crossing in a marked cross-walk in Nelson, BC, when he was struck by the Defendant.  As the Defendant was driving she “slowed down to look for a parking spot when she suddenly felt a bump on the left side of her car.”  The Defendant failed to see the Plaintiff and the Court ultimately found the Defendant at fault.

The Defendant went on to argue that the Plaintiff should be held partially at fault because he should have realized she was not yielding the right of way.  Mr. Justice McEwan rejected this argument and provided the following reasons:

[25] Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.

[26] Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.

[27] This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.

[28] I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way (See Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at para. 23 above).

[29] The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.

[30] Accordingly, I find the defendant fully liable for the collision.

Reasons for judgement were released last week discussing fault for a rear-end motor vehicle collision which occurred after the Plaintiff made a lane change into the Defendant’s lane of travel.

In last week’s case (Perry v. Ismail) the Plaintiff was driving in “bumper to bumper” traffic in the right lane of a highway.  There were few vehicles in the left lane as it was closed to traffic ahead further up the roadway.  The Plaintiff made a lane change into the left hand lane and shortly after he was rear-ended by the Defendant.

Although collisions such as these can be caused by the fault of both motorists in last week’s case the Court determined that the Defendant was fully at fault for the crash for failing to keep a proper lookout.  In assessing the Defendant 100% liable Madam Justice Hyslop provided the following reasons:

[25] Before making his lane change, Mr. Perry shoulder checked and put on his signal light indicating his intention to change lanes. He concluded and I accept he could make the lane change safely. I do not accept Mr. Perry’s evidence that he actually recalls independently at the time of trial doing all of those checks before making the lane change. I do accept that he signalled, looked in his mirrors, did a shoulder check and decided that it was safe to change lanes.

[26] Mr. Perry had completed his lane change and was travelling at least 40 kilometres per hour, accelerating, and had not reached his intended speed when the rear end collision occurred.

[27] Mr. Ismail occupied the left lane and was he aware that vehicles might change lanes given the traffic conditions in the right lane.

[28] As Mr. Ismail drove in the left lane there was nothing to obscure his vision. He did not see the Perry vehicle until the very last moment when he slammed on his brakes, colliding with the rear of the Perry vehicle. He did not see the Perry vehicle’s signal, nor the change of lanes. I find that Mr. Ismail came upon Mr. Perry who was about four to five car lengths ahead of the Kelly vehicle and accelerating. Mr. Ismail should have seen the Perry vehicle signal and should have seen the lane change and should have seen the Perry vehicle ahead of him. He did not see any of these events.

[29] I conclude that Mr. Ismail was negligent in that he was not paying attention and failed to keep a proper lookout for other vehicles as he drove in the left lane on Lougheed Highway. When the Perry vehicle was finally seen by him it was too late. He slammed on his brakes and struck the Perry vehicle.

[30] I find all the witnesses to the accident to be truthful and they did their best to recall the events. Mr. Ismail did not attempt to explain away the accident. He was transparent, despite the fact there may be consequences to him from his employer.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing fault and damages as a result of a 2008 motor vehicle collision.

In this week’s case (Jarmson v. Jacobsen) the Plaintiff was riding a motorcycle with his daughter when a vehicle operated by the Defendant turned into his path of travel.  Although the Defendant denied fault the Court found his evidence “wholly unreliable” and found him fully responsible for the crash.  The collision resulted in multiple injuries to the Plaintiff including a shoulder injury, a knee injury and a severe traumatic brain injury.

Global damages of over $1 million were assessed including non-pecuniary damages of $230,000.  The consequences of the head trauma were expected to have significant effects on the Plaintiff’s long term functioning both vocationally and domestically.  The full discussion surrounding this assessment is too lengthy to reproduce here but the following key findings were made with respect to the severity of injury were made by Mr. Justice Meiklem:

[54] Dr. Miller’s DSM IV diagnostic formulation included personality disorder due to traumatic brain injury and an adjustment disorder with mixed features of anxiety and depressed mood. Based on neurological indices of severity, Mr. Jarmson suffered a severe traumatic brain injury.

[55] A further indication of the severity of the injury to Mr. Jarmson’s brain is gleaned from the evidence of Dr. Gary Stimac, a diagnostic neuroradiologist, who testified and reviewed with the court many of the scanned CT and MRI images of Mr. Jarmson’s brain. These consisted of CT images taken at Kelowna General Hospital at intervals of about 9 hours, 40 hours, and 5½ days after the collision, and a complex set of MRI images obtained April 5, 2011. Dr. Stimac’s written report of August 15, 2011(p. 5-6) notes that:

The radiology examinations, in conjunction with emergency evaluations, establish that Mr. Jarmson sustained severe injury to the head. The immediate and subsequent CT scans show the left frontal impact and the coup-contrecoup contusions. The later MRI shows diffuse brain atrophy, evidence of white matter scarring, encephalomalacia, and hemosiderin deposits from the hemorrhagic contusions.

[56] Dr. Stimac explained that the atrophy he referred to is due to the absorption/removal of necrotic tissue…

[88] I find that the fair, reasonable, and appropriate award to compensate Mr. Jarmson for his non-pecuniary losses is $230,000.

A reality at busy intersections is that drivers, after committing to an intersection on a green light, sometimes need to wait until the light turns red to complete their turn.  If a crash occurs in these circumstances a driver can (depending on the specific facts of course) be found faultess for the collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.

In this week’s case (Yanakami v. Whittey) the Plaintiff was attempting a left hand turn.  She committed to the intersection.  After her light turned red vehicles in two of the three oncoming lanes came to a stop.  At this time she proceeded to complete her turn.  The Defendant, who was travelling in the third oncoming lane, ran the red light and a collision occurred.

Mr. Justice Fitch found the Defendant fully at fault for the crash.  In doing so the Court provided the following reasons:

[62] Against the background of this discussion, I make the following factual findings:

1. the plaintiff began her left turn immediately after the light for east and westbound traffic changed to red;

2. two other vehicles traveling east had come to a stop at the intersection in the curb and centre-line lanes;

3. the plaintiff was cognizant of, and attentive to, the considerations one would expect to be in the mind of a reasonably prudent driver including the colour of the traffic light, the location and speed of oncoming traffic, the location of Mr. Whittey’s vehicle at various points in time, including when the light turned red, and the potential for there to be pedestrians walking to the south in her intended path of travel;

4. Mr. Whittey had ample time to stop before the intersection and do so in safety, just as two other eastbound vehicles had done, when the light changed to yellow;

5. the plaintiff concluded, and was entitled in fact and in law to conclude, that the defendant’s vehicle did not present a hazard, that he had plenty of time stop (as other vehicles had done) and that it was safe for her to proceed with her left turn;

6. the defendant was not being attentive to the factors a reasonably prudent driver would have been attentive to before the collision, including the presence of the plaintiff’s vehicle in the westbound left turn lane immediately in front of him or the fact  that a car had already come to a stop ahead of him in the eastbound centre-line lane. This conclusion is supported by the defendant’s own admission that he was not looking at the left turn lane for westbound traffic as he approached the intersection because it was not important for him to do so;

7. Mr. Whittey entered the intersection after the light turned red;

8. the plaintiff could not possibly have taken evasive action at that point to avoid the collision.

[63] Applying these facts to the applicable law, I am satisfied that this accident was caused solely by the negligent driving of the defendant, Mr. Whittey.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a common type of intersection crash; one involving a left-hand turning vehicle and a through driver.

In this week’s case (McPherson v. Lange) the Defendant was travelling Northbound on Canada Way in Burnaby, BC.  The Defendant was intending to make a left hand turn.  (Defendant’s view depicted in below photo)

At the same time the Plaintiff was travelling in the on-coming southbound lane.  The Defendant committed to the intersection and waited to turn.  After the light turned amber she began her turn.  The Plaintiff drove through on a late amber light and the collision occurred.  In finding both parties equally to blame Mr. Justice Armstrong provided the following reasons:

[40] Based on Ms. Lange’s and Mr. Enns’ description of the events leading up to the accident, I have concluded that she stopped before entering the intersection, entered the intersection and stopped again. She proceeded on the amber light, and erroneoulsy believed that she had sufficient time to complete her turn without contributing to a risk of collision with the oncoming McPherson vehicle. She did not see the McPherson van before making her decision to proceed with her left turn and did not look again or see him as she started to travel through the balance of the intersection.

[41] It also appears to me that when she first saw the McPherson van some distance from the intersection, she misjudged the speed and/or distance of the vehicle. She did not express any expectation that Mr. McPherson would be able to stop or would stop before colliding with her…

[45] Section 128 of the MVA required Mr. McPherson to stop his vehicle unless the stop could not be made safely. He could not suggest or explain why he could not have stopped his vehicle safely in the time between the appearance of the amber light and the impact. He did not say he was too close to the intersection to bring his vehicle to a stop or that there were any other circumstances that would have prevented him from stopping his van. It is clear that his light was amber for 4.5 seconds and that he entered the intersection towards the end of that 4.5 second time. I conclude the McPherson vehicle had time to stop safely without entering the intersection. This is corroborated by the testimony of Mr. Melin who was in the lane to Mr. McPherson’s right. Mr. Melin said that he had ample time to stop and was surprised that Mr. McPherson sped past him after the light turned amber. I also find on the evidence that Mr. McPherson did have enough time to stop before the light turned to red, and in choosing not to do so, he created a significant danger.

[46] In my view Mr. McPherson did not drive prudently and his failure to stop his vehicle before entering the intersection was a breach of his duty to Ms. Lange. Mr. McPherson admits that his negligence contributed to the accident but he argues that Ms. Lange is also contributorily negligent…

[49] The tension between the obligations of the left-turning driver and the through driver are difficult to resolve. It is clear from Morgan, Mitchell and Tejani that the left-turning driver has an obligation to keep a lookout for a vehicle obviously headed into the intersection in disregard for the traffic signal…

[54] I cannot measure the differing degrees of fault between both the plaintiff and defendant and accordingly, I apportion liability at 50% against Mr. McPherson and 50% against Ms. Lange.

With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions.  With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:

Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.

In anticipation of the almost certain phone calls I will receive this week I write this post.

If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.

If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.

Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.

If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.

People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.

Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Section 158 of the Motor Vehicle Act prohibits drivers from passing vehicles on the right except in limited circumstances.  Reasons for judgement were released this week by the BC Court of Appeal discussing this prohibition in the context of a personal injury lawsuit.

In this week’s case (Smeltzer v. Merrison) the Defendant was travelling Northbound.  There was one Northbound lane of traffic which was backed up with other vehicles.  The traffic lane widened as it approached in intersection creating two “de-facto” lanes.

The Defendant passed the stopped vehicles on the right intending to make a right hand turn at the upcoming intersection.  At the same time the southbound Plaintiff made a left hand turn through a “gap” in the backed up Northbound traffic intending to enter a parkade.  At this time a collision occurred.

The Plaintiff sued for damages and had her case dismissed at the trial level.  She appealed.  The BC Court of Appeal agreed that while the Plaintiff should have kept a proper lookout and was partially to blame for the collision the Defendant also bore some responsibility.  The Court found the Defendant should not have been passing on the right in the “de-facto” lane as it was not a “laned roadway” and doing so in these circumstances was negligent.  In finding the Defendant partly at fault the BC Court of Appeal provided the following reasons:

[13] Dickson, an appeal of a cyclist’s conviction for passing on the right, contains the most complete discussion of s. 158 to which we are referred.  I would respectively endorse what was said there.  Section 158(1) prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle…”  There are only three exceptions.  Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits.  A “laned roadway” is defined.  It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction.  The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road.

[14] Despite the recognition of a de facto lane in MacLaren, I do not consider the concept can afford any further exception to the three for which s. 158(1) provides.  In MacLaren, a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked.  He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right.  It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right.

[15] I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends.  The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety.  Here, there was only one such lane regardless of whether there was what might be called a second de facto lane.  I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason.  If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass.  Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane.  They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right.

[16] As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act, he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest.  I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis.  As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act: s. 158(1)(b) did not apply.  If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them.  She was required not to pass the vehicles in front of her until she entered the marked right-turn lane.

[17] I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158.  She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road.  Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout.  Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred.  It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered.

As previously discussed, video surveillance is a reality in personal injury litigation and surveillance depicting a Plaintiff acting inconsistently with their evidence can impact an assessment of damages.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, demonstrating surveillance evidence in action.

In last week’s case (Wilkinson v. Whitlock) the Plaintiff was injured in a 2007 collision in Vernon, BC.  The Defendant drove through a red light and was found fully at fault for the crash.  The Plaintiff suffered from back problems as a result of the collision.  In the course of trial the Plaintiff testified as to the effects of these injuries.  ICBC introduced video surveillance evidence which gave the impression “of an individual less limited than (the Plaintiff’s) evidence at trial and on discovery would lead one to conclude“. Mr. Justice Barrow provided the following reasons considering this evidence:

[16] There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.

[17] As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff’s left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms. Wilkinson testified that although the pain in her hip or groin varies, it often causes her “to waddle” when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.

[18] The January and February 2008 videotape evidence is of little assistance - the recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.

• Mitigation of Damages

This case is also worth reviewing for the Court’s application of the mitigation principle.  Mr. Justice Barrow found that the Plaintiff was prescribed therapies that she failed to follow and these would have improved the symptoms.  The Court did not, however, reduce the Plaintiff’s damages finding that it was reasonable for her not to follow medical advise given her financial circumstances.    Mr. Justice Barrow provided the the following reasons:

[50] Returning to the principles set out in Janiak, and dealing with the second one first, I am satisfied on a balance of probabilities that continued physiotherapy at least during 2008 would have reduced some of the plaintiff’s symptoms and increased her functionality. Further, I am satisfied that the supervised exercise program that Mr. Cooper recommended would have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There is no reason to think those benefits would not have continued and perhaps provided further relief.

[51] The more difficult issue is whether it was unreasonable for the plaintiff to not have followed up on these therapies. She testified that it was largely due to a lack of financial resources. I accept her evidence in that regard. She was in the midst of renovations which were costly. In addition she had lost the assistance that Mr. Harrison was to have provided. The renovations were also time consuming and physically taxing. Further, she underwent a very difficult separation from Mr. Harrison which extracted both a financial and emotional toll. In all these circumstances I am not persuaded that the defendant has established that it was unreasonable for the plaintiff not to pursue a fitness regime more diligently than she did. Most of the impediments to the pursuit of such a program will be no longer exist once this trial is over. I will address the implications of that when dealing with the damages for future losses.