ICBC Law

I’ve previously written that having the right of way is not always enough to escape blame for a motor vehicle collision.  Reasons for judgement were released today further demonstrating this point.

In today’s case (Hmaied v. Wilkinson) the Defendant was driving up a windy road in Port Moody, BC.  At the same time the Plaintiff, then 15 years old, was jaywalking in front of the Defendant.  The Plaintiff was “jogging slowly as he crossed the road“.

The Defendant was speeding.  He saw the Plaintiff jaywalking but “continued to drive at an excessive rate of speed directly toward (the Plaintiff)“.  The Plaintiff crossed beyond the Defendant’s lane of travel.  Unfortunately he dropped his cell phone and “instinctively turned back into the (defendant’s) lane and bent over to pick it up without looking in the direction of oncoming traffic”  As he straightened up after picking up his phone he was struck by the Defendant’s vehicle.

Despite having the right of way, the Defendant was found 50% at fault for the crash.  In coming to this finding Madam Justice Dickson provided the following reasons:

[34] I conclude that the plaintiff and the defendant both failed to exercise due care in all of the circumstances and that both failures were proximate causes of the Accident.  In my view, the parties are equally blameworthy and liability should be apportioned on a 50% basis to each of them.

[35] The defendant had the right of way, but he did not take reasonable precautions in response to the obvious hazard presented by a young person jaywalking across his path of travel.  I accept that he could not specifically foresee the plaintiff would drop his cell phone and move back into the middle eastbound lane in order to retrieve it. I do not accept, however, that he was entitled to assume the plaintiff would obey the rules of the road or otherwise behave in a predictable manner as he jogged diagonally across Clarke Road.  On the contrary, the defendant knew that the youthful plaintiff was behaving unsafely by jaywalking in the face of oncoming traffic.  In these circumstances, other forms of unsafe behaviour were predictably unpredictable and the defendant should have slowed down and changed lanes immediately when he saw the plaintiff.  Had he done so, the Accident would not have happened:  Nelson (Guardian ad litem of), supra; Ashe, supra; Claydon, supra; Karran, supra; Beauchamp, supra.

[36] The plaintiff also failed to exercise due care for his own well-being.  He jaywalked in the face of oncoming traffic and, mid-course, turned back to retrieve his cell phone without checking to see how close the approaching vehicles had come.  In so doing, he exposed himself to the risk that he would be struck by an approaching vehicle.  That risk was realised and his negligent actions were also a proximate cause of the Accident.

If you have the right of way but know that someone is failing to yield you must take reasonable steps to avoid a potential collision otherwise you can bear some of the blame.

Volenti Non Fit Injuria is a Latin phrase which generally means that a plaintiff cannot sue a defendant where the Plaintiff has consented to or willingly accepted the risk of harm.   The Volenti Doctrine, when used successfully, can be a complete defence to a personal injury lawsuit.

The Volenti defence has been raised many times in ICBC Injury Claims where a passenger rides with a knowingly impaired driver who then loses control and injures the passenger.  Our Courts have severely limited the effectiveness of this defence over the years and reasons for judgement were released today demonstrating the difficulty is successfully arguing this defence.

In today’s case (Shariatmadari v. Ahmadi) the Plaintiff was severely injured when the driver of her vehicle lost control in Stanley Park, left the roadway and hit a tree.  The Defendant was drinking prior to losing control.  The claim went to Jury Trial and ICBC, on behalf of the Defendant, tried to raise the Volenti Defence.

Madam Justice Fenlon refused to put the defence to the jury finding that the evidence required for the defence to succeed was not present in the case at hand.  In coming to this conclusion she summarize the Volenti Defence in impaired driving cases and applied it as follows:

[3] The third party, Insurance Corporation of British Columbia (“ICBC”), who is defending this case on behalf of the deceased driver, wished to lead evidence of excessive drinking by the plaintiff, defendant, and mutual friends several nights a week for some time prior to the accident. ICBC also sought to lead evidence of the plaintiff occasionally driving following such evenings or letting the defendant drive her vehicle. They argued that this evidence, in conjunction with the fact that the plaintiff and defendant had a close personal relationship and were both driving impaired before the accident, will support a finding by the jury of a tacit agreement between the parties to assume any risk that might arise in relation to such driving – a finding which would support the defence of volenti non fit injuria.

[4] Counsel for the plaintiff offered to have the plaintiff testify on a voir dire to permit counsel for ICBC to argue the appropriateness of putting the volenti defence to the jury based on the actual evidence that could be elicited from the plaintiff. The third party was of the view, with which I agreed, that they could argue the appropriateness of putting the defence ofvolenti non fit injuria to the jury based on their “best case scenario”. I heard argument on that basis.

[5] Counsel for ICBC candidly acknowledged that in cases involving a plaintiff riding with an impaired driver, volenti is a difficult defence to prove in light of recent cases on the issue. In Hall v. Hebert, [1993] 2 S.C.R. 159 at 207, 101 D.L.R. (4th) 129, Cory J. in concurring reasons noted that the maxim volenti non fit injuria “stands for the proposition that no injury is done to one who consents.”  He stated the following at 207-208:

In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein, [1963] S.C.R. 38).

…

The volenti defence acts as a complete bar to recovery. Although it has not been the subject of legislation, it has been very severely limited in its application. Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence. See Prosser, supra, at p. 454. Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity. The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so. Clearly, the volenti defence will only be applicable in a narrow range of cases.

[6] In Joe v. Paradis, 2008 BCCA 57, 290 D.L.R. (4th) 556, the plaintiff had persuaded the defendant to drive him to a pub to obtain beer. Both parties were heavily intoxicated and the defendant drove off the road, injuring the plaintiff. The plaintiff’s action for damages was dismissed by a jury on the basis of the volenti defence. The issue before the British Columbia Court of Appeal was whether the defence of volenti non fit injuria should have been put to the jury. At para. 13, Mackenzie J.A. writing for the Court said:

[13]      There is no evidence of any express agreement between Mr. Joe and Mr. Paradis to absolve the latter from legal liability for negligent driving. The first issue is whether there was evidence from which a properly instructed jury could find an implied agreement to that effect. The first and third issues are inter-related: if there was no evidence to support the defence, the jury verdict is unsupported by evidence and therefore perverse.

[7] He noted further at paras. 16-22:

[16]      Commentators are generally critical of the volenti doctrine, particularly its application to passengers in motor vehicle accident cases: see, for example, G.H.L. Fridman,The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002); Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: Butterworths, 2002); Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003); John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998); and Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006). Clerk & Lindsell on Torts points out that volenti’s complete bar to recovery is inconsistent with comparative negligence statutes which allow the apportionment of responsibility and “a more finely adjusted justice between parties” (at §3-103). Professor Klar observes that the nominal standard of an implied waiver of legal liability will rarely be met, if taken seriously. He adds: “It is not realistic to impose this implied agreement upon parties who are frequently unaware of the legal niceties surrounding these types of events, and who are not deliberating upon the physical or legal risks of dangerous conduct” (at 482). It would be hard to find parties who better fit Professor Klar’s description than Mr. Joe and Mr. Paradis.

…

[20]      Interjecting the volenti defence short circuits the process and invites the jury to use the defence as a subterfuge to assign all responsibility for the accident to Mr. Joe notwithstanding that the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence. Unless the courts are prepared to condone the manipulation of the volenti doctrine to avoid the comparative fault regime of the Negligence Act, volenti should not be invoked unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[21]      The weight of Supreme Court of Canada jurisprudence and the critical commentaries support restricting the doctrine to cases where an agreement can be supported by the evidence. This case was not one of them.

[22]      The question left with the jury failed to clearly distinguish between the physical and legal risk of harm. The judge’s charge attempted to explain the distinction, but essentially in a vacuum as to evidence supporting acceptance of the legal risk of injury in contrast to the physical risk. Voluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti. [Emphasis added]

[8] In my view, even assuming the defendant’s best case scenario on the evidence elicited at trial, there is no evidence to support the plaintiff’s waiver of her legal right to sue for injuries, as distinct from evidence to support a willingness to assume the risk of injury itself. There is no evidence that the plaintiff and defendant turned their minds to the question of legal liability, and either expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[9] In conclusion on this point, there is no evidence to support the defence of volenti; therefore that defence should not be put to the jury.

The Court did, however, go on to permit the Jury to hear evidence of the Plaintiff’s level of intoxication finding that “ here the evidence establishes that the plaintiff and defendant were together drinking over the evening and consuming roughly the same number of drinks (the evidence in this case), the level of the plaintiff’s intoxication is also relevant to her awareness of how intoxicated the defendant was at the time she let him drive her car.”.  Madam Justice Fenlon held this evidence was relevant in deciding whether the Plaintiff was ‘contributorily negligent‘ for riding as a passenger with a driver who had been drinking.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a serious hand injury sustained in a 2006 single vehicle accident.

The Plaintiff was a passenger.  The Defendant driver lost control of the vehicle and it flipped over onto its roof.  The Plaintiff was injured in this collision.  ICBC admitted fault on behalf of the driver, the main issue at trial was whether the Plaintiff was partially at fault for her own injuries for getting into a vehicle when she knew or ought to have known that the driver was impaired.

In finding that the Plaintiff was partly to blame for her own injuries the court said as follows:

[17]            In this case, the evidence establishes that the plaintiff must indeed assume some of the responsibility for her injuries.  The plaintiff knew the defendant was drunk before she got into the truck.  Although she was so drunk she was staggering and she does not recall the drive to the parking lot, she does recall the defendant’s behaviour and testified that she knew he was drunk when they left the bar.  She needed a ride home and either asked him for one or voluntarily accepted one from him. 

[18]            However, fault must be apportioned on the basis of the nature and extent of the departure from the respective standards of care: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 at para. 24.  On that basis, much more of the fault belongs to the defendant.  He was clearly negligent.  Not only was he impaired, but he chose to spin doughnuts, causing the truck to flip over.  He had apparently driven without incident to the parking lot, and it was his decision to drive, while impaired, in such a dangerous fashion in the lot itself that led to the accident.  While his behaviour was fuelled by alcohol, and the plaintiff should have foreseen that a drunk driver could put her in a position of danger, she was exposed to a greater degree of danger by his reckless antics.  His departure from the applicable standard of care was much greater than the plaintiff’s.  I find the appropriate percentage of contributory negligence in all these circumstances to be 25%.

The Plaintiff sustained a serious hand injury.  In valuing her pain and suffering at $50,000 the court found as follows:

[20]            The plaintiff, who is right-handed, suffered serious injuries to her left hand.  All the skin was removed from the back of her hand, and the tendons were exposed.  Her middle finger was fractured. 

[21]            She has had seven surgeries, during which the tendons have been repaired, the middle joint of the third finger has been fused, and a graft of skin from the inside of her thigh has been applied to the back of her hand.  This skin graft was quite thick and has been reduced in stages.

[22]            The plaintiff does not have pain or numbness in her hand, but has stiffness in the metacarpal phalangeal joints – that is, the joints that connect the finger to the hand itself – on her index, middle and ring fingers, with pronounced stiffness in the middle joint of her index finger.  The fusing of the middle joint of her third finger means it will not bend.  She has signs of early osteoarthritis in the middle and ring fingers.  Her micro-surgeon/hand specialist, Dr. Hill, is of the opinion that she has the potential to develop arthritis in all the joints of her left hand.  The third party’s specialist, Dr. Gropper, does not share that latter view, but apart from that his opinions did not differ from Dr. Hill’s.  Arthritis could raise the possibility of joint replacement in the future, but the doctors did little more than mention this without elaboration. …..

[30]            In summary, as a result of the accident, the plaintiff was required to have seven surgeries on her left hand.  She is left with a non-dominant hand that is obviously different in appearance and function, regardless of the remaining surgery that will give some further amelioration in those respects.  She is left with stiffness in three fingers, one of them fused, but does not suffer pain or numbness.  She keeps her hand covered to avoid embarrassment. She has scarring, reduced grip strength, and reduced tolerance for repetitive activities involving her left hand.

[31]            Based on the evidence before the court, the effect on her daily life and activities is not extensive.  She finds some household chores difficult, and her left hand becomes tired when driving.  She does face the prospect of advancing arthritis, particularly in the two presently affected joints.

[32]            Considering all of the evidence, I am of the view that the amount proposed by the third party is reasonable.  I award $50,000 for non-pecuniary damages. 

This case serves as a stark reminder that if you know or ought to know that the driver of your vehicle is impaired by alcohol you can be found partially at fault for your own injuries if the driver is involved in a crash.  Such a finding of contributory negligence will affect the value of your ICBC claim.  

Reasons for judgement were released by the BC Court of Appeal today ordering a new trial to deal with the issue of ‘contributory negligence’ of the Plaintiff.

The Plaintiff was an experienced tri-athlete and bicyclist.  He was

catastrophically injured in an accident on a steep and winding road in Langley on the morning of June 29, 2002.  Proceeding on his triathlon-model bicycle downhill towards a blind curve, he veered to the right to avoid a “cube” van coming over the centre line, lost control of his bicycle, travelled through a gap between two barriers at the side of the road, and fell down a ravine.  His spinal cord was injured at the C6-7 level, with the result that he has almost no sensation and almost no use of his body from his chest down and suffers chronic neuropathic pain.  He does have use of his arms and of his diaphragm muscles.  He has also been diagnosed with a mild traumatic brain injury.  He was 50 years old at the time of the accident.

Following a 33 day trial the BC Supreme Court found the Defendants liable in negligence and awarded close to $4.5 million for the Plaintiff’s severe injuries and damages.  The trial judge found that the Plaintiff was not contributorily negligent (that is that the Plaintiff was not even partially to blame for the accident).

The Defendants appealed on several grounds.  Their appeal succeeded on the issue of contributory negligence.  The BC Court of Appeal ordered that this issue be retried.  The court’s key finding of error at the trial level is set out at paragraphs 25-26 which I set out below:

[25]            The question that the trial judge was required to address was whether in all the circumstances Mr. Aberdeen was taking reasonable care for his own safety as a bicyclist, going down a hill he knew to be “nasty” and approaching a blind corner.  Did he use a wrong technique?  Was he going too fast?  Given that he was clearly exceeding the “advisory” speed for cars, was he creating an unreasonable risk of harm to himself as he rounded the curve?  Was he driving too closely to the centre line?  Should he not, if riding in a reasonably prudent manner, have been able to move to the right side of his lane, as Mr. McGee did, without losing control and going over the shoulder and off the road?  The trial judge did not answer these questions but, with respect, was content to base his conclusion of no negligence largely on the finding that Mr. Aberdeen could not have received a ticket.  As for the fact that the plaintiff and Mr. McGee had conversed, just before the accident, about the steepness of the hill, that could take one only so far.  As Lambert J.A. suggested in MacDonald v. Shorter [1991] B.C.J. No. 3714, 8 B.C.A.C. 179, it seems likely that “in the bulk of cases where negligence occurs, the negligent conduct is an exception to the general conduct of the person who is said to be negligent.”  (At para. 13.)

[26]            In these circumstances, I am reluctantly driven to the conclusion that the trial judge erred in failing to consider specifically whether Mr. Aberdeen had been taking reasonable care for his own safety.  (In addition, there was more than a “paucity” of evidence on the topic of speed, contrary to the trial judge’s finding.)  I would remit the issue of contributory negligence for retrial below

This case is worth reviewing for anyone involved in an ICBC tort claim involving a cyclist to see the types of factors BC courts look at when deciding whether a cyclist is partially responsible for an accident.