ICBC Law

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.

In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:

[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.

Tags: bc injury law, Biggan v. Fall, liability, Mr. Justice Bracken, negligence, Occupiers Liability Act

This entry was posted on Thursday, April 21st, 2011 at 12:27 pm and is filed under ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. You can leave a response, or trackback from your own site.