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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

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Posts Tagged ‘Hansen v. Sulyma’

Stationary Vehicle Partly At Fault for Rear End Crash For Failing to Engage Hazard Lights

July 30th, 2013

Last week the BC Court of Appeal addressed fault for a crash between an impaired driver and a stationary vehicle.  In last week’s case (Hansen v. Sulyma)  the stationary vehicle had run out of gas and pulled off the roadway.   Shortly thereafter another motorist, who had been drinking in excess at a nearby pub, lost control and drove into the stationary vehicle.  While the Court found the impaired driver mostly at fault the driver of the stationary vehicle was also found party to blame.  In reaching this conclusion the BC Court of Appeal provided the following reasons:

[5]             When the Honda was a couple of kilometres away from the terminal, its engine “spluttered” and then stopped.  Mr. Sulyma steered it off the paved portion of the road and onto the shoulder.  He testified that they were stopped on a straight stretch.  He telephoned one of his sisters who lived on the Island and she agreed to bring gas to where the Honda was stranded.  Ms. Hansen phoned home to tell her son that she and Mr. Sulyma would not be back to Powell River until the next day.

[6]             While they were stopped, Ms. Hansen testified that she asked Mr. Sulyma to put on the car’s “flashers” or hazard lights, but he told her that was “silly”.  The lights were left off.  After a few minutes, Mr. Sulyma tried the ignition again and the car started.  He pulled out onto the road and they were able to drive a short distance, but the engine then spluttered and died again.  The trial judge accepted the testimony of both Mr. Sulyma and Ms. Hansen that he steered the vehicle onto the shoulder such that it was parked “entirely on the shoulder of the road, and no part of the vehicle was located on the paved portion of the roadway.”  (Para. 31.)  Although parts of Mr. Leprieur’s statements to the police were to the contrary, other portions of his statements led the trial judge to infer that he had had no memory of where the Honda had been parked.  The trial judge found that the car was “at what counsel have referred to as the ‘apex’ or middle point of a left-turning (for northbound traffic) curve in the highway.”  (Para. 35.)..

[17]         With respect to Mr. Sulyma, the trial judge was satisfied he had failed to meet the applicable standard of care by failing to activate the hazard lights on Ms. Hansen’s vehicle or otherwise illuminating lights that would have made the Honda more easily noticeable to drivers.  As for causation, the Court found this failure “caused or contributed to the collision” and that had the lights been on, Mr. Leprieur would likely have been alerted to the presence of the Honda earlier than he was.  The trial Judge continued:

… Even if Mr. Leprieur’s ability to react was slowed by the excessive amount of alcohol he had consumed and he was being inattentive, flashing lights would probably have caught his attention before the vehicle itself became visible.  An earlier warning of the presence of the Hansen vehicle would, I conclude, have allowed Mr. Leprieur time to stop accelerating or possibly even slow his vehicle, and thereby reduce the force of the impact and the severity of Ms. Hansen’s injuries.  [At para. 78; emphasis added.]

 …

[30]         Moving on to the question of standard of care, Ms. Wright contends that the standard imposed by the trial judge on Mr. Sulyma was “too high in law”.  She emphasizes that the Hansen car was parked off the paved portion of the road.  Can it be correct, she asks, to require a person in Mr. Sulyma’s position to have activated the hazard lights in order to avoid the risk posed by a driver who is drunk, speeding, and accelerating on a trajectory off onto the shoulder?  Ms. Wright observes that this is the first case of which she is aware in which the driver of a vehicle that is parked completely off the road has been held to be negligent for failing to put on his or her hazard lights.

[31]         Mr. Cowper responds ? correctly in my view ? that Ms. Wright’s objections are to the trial judge’s findings of fact rather than to any legal principle she applied.  The question in every case is whether the person has taken reasonable care in all the circumstances.  There is no rule of law to the effect that any driver who parks his car off the road may rest assured that he or she need not activate the vehicle’s hazard lights.  It all depends on the circumstances.  In this case, although the Honda was off the road, it was a dark and misty (if not foggy) night, the road was not illuminated, the car was in the apex of a curve, and Mr. Sulyma and Ms. Hansen were sitting in the vehicle.  As the Court stated in Thornhill v. Martineau (1987) 39 C.C.L.T 293 (B.C.S.C.), even though a vehicle is legally parked, it may create a danger which ought to be foreseen by its driver.

[32]         The trial judge in the case at bar implicitly concluded that it was reasonably foreseeable that a driver coming around the curve would swing wide ? a conclusion of fact that in my view has not been shown to be clearly wrong.  (It was not necessary in this regard to show that Mr. Sulyma ought to have foreseen that an intoxicated driver would speed around the curve.)  I note that this case is substantially different from that inCawson v. Quandt 2001 BCCA 210, where this court reversed a trial judge’s finding that a driver who had encountered deer on the road and, while remaining in the lane of traffic, had stopped his truck to let them cross, had been negligent in failing to turn on his hazard lights.  The trial judge had imposed 15% liability on the defendant for this reason, but the Court of Appeal allowed his appeal on the basis that the trial judge had imposed “an unreasonable standard imposing almost a warranty upon the defendant.”  (Para. 4.)  For purposes of the case at bar, it is important to note that the defendant in Cawson had his headlights and running lights on at all times (see para. 49 of the trial judge’s reasons; [1999] B.C.J. No. 1341).

[33]         In my opinion, this ground of appeal must fail.


BC Court of Appeal Finds Pub 20% At Fault for Overserving Patron Who Caused a Vehicle Collision

July 25th, 2013

Adding this site’s archived cases addressing commercial host liability, reasons for judgement were released this week by the BC Court of Appeal addressing the blameworthiness of a pub who overserved a patron who then drove drunk and caused a catastrophic collision.

In this week’s case (Hansen v. Sulyma) the Plaintiff was a passenger in a vehicle that ran out of gas and was parked off the side of the road.  At the same time the Defendant, who had been drinking excessively at a nearby pub, “approached from behind, swung wide and hit their car.”  The crash had catastrophic results rendering the Plaintiff quadriplegic.

The motorist was found largely responsible for the crash but the BC Court of Appeal also allocated 20% of the blame to the pub.  In addressing their blameworthiness for over serving a patron the Court provided the following reasons:

[1]             …Mr. Leprieur had spent the evening drinking at a nearby pub and was highly intoxicated.  Employees at the pub had not made any effort to cut off his liquor or to see that he did not get into a motor-vehicle when he left the pub…

[10]         The vehicle that struck the Hansen car was a Ford Explorer being driven by Mr. Leprieur.  He had taken the ferry to Texada Island on the afternoon of November 29 to “hang out” and play some pool at the pub.  After the ferry docked at 4:00 p.m., he went to the pub, arriving between 4:30 and 5:00, and stayed until about 9:45.  There, he ran up a tab in excess of $100 (including some drinks purchased for others).  The trial judge found that he had likely consumed at least six rye whiskeys mixed with water, each consisting of not less than two ounces of alcohol.  The drinks were first served by Ms. Ricki James, the sole bartender on duty when Mr. Leprieur arrived.  She went off duty at 7:00 p.m., when the defendant Ms. Morris took over, again as the sole bartender and server.  Both are employed by the defendant numbered company of which the defendant Mr. de Vita is president and an employee.  He was not present on November 29.

[11]         When Ms. James went off duty, she did not tell Ms. Morris how long Mr. Leprieur had been drinking and Ms. Morris did not ask.  She did note there were three or four double ryes on Mr. Leprieur’s tab.  Ms. James observed that Mr. Leprieur was “fine” when she went off shift, but also said he was “catching a little buzz on”.  Ms. Morris served Mr. Leprieur three more ryes, throwing out the remnants of the third after he left the pub at about 9:45 p.m.  The trial judge continued:

The pub was busy and Ms. Morris did not pay much attention to Mr. Leprieur, but she did not observe him showing signs of being “an extremely drunk person, such as falling down or slurring his words”.  However, a patron in the pub offered to pay for a room at the Texada Island Inn for Mr. Leprieur, from which I infer that others were able to observe signs of impairment.

Mr. Leprieur got into his Ford Explorer and headed north on Blubber Bay Road intending to catch the last ferry.  When interviewed by Constable Rogers, he seemed vague about the departure time for that ferry, but I am satisfied that Mr. Leprieur probably knew that he had left himself very little time to get to the ferry terminal, and that he was likely driving in excess of the posted speed limit.

Ms. Hansen’s testimony about the sounds made by Mr. Leprieur’s vehicle as it approached and the extent of the damage to the two vehicles indicates that Mr. Leprieur’s vehicle was travelling at a high rate of speed when the impact occurred.  The right front of by Mr. Leprieur’s Ford Explorer struck the rear left side of the Accord.  The damage to the front of the Explorer indicates more than half of the front of that vehicle came into contact with the Accord, and although the damage to the rear of the Accord is worse on the left side than the right, the entire back of that vehicle is destroyed. [At paras. 51-3.]

[12]         The RCMP officer who attended the accident recorded that Mr. Leprieur had glassy eyes, was unsteady and smelled of alcohol.  Mr. Leprieur provided a breath sample at 1:26 a.m. which indicated a blood alcohol level of .12.  According to the blood alcohol consultant that level would have been between .147 and .167 at the time of the collision.

[36]         The law is clear, of course, that this court may not interfere with a trial judge’s apportionment of liability under the Negligence Act, R.S.B.C. 1996, c. 333, unless there are “very strong and cogent reasons” for doing so: see Moses v. Kim 2009 BCCA 82 at para. 33.  Even given this stringent standard, however, I am persuaded that the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations.  We were referred to various cases involving host liability to injured third parties, including Menow v. Honsberger [1974] S.C.R. 239 (S.C.C.) and Laface v. McWilliams 2005 BCSC 291. In Laface, Kirkpatrick J. (as she then was) in turn quoted at para. 187 a passage from a judgment of Mackenzie J. in Lum (Guardian ad litem of) v. McLintock (1997) 45 B.C.L.R. (3d) 303 (B.C.S.C.), where she stated:

In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage … [At para. 27.]

In all the cases of commercial host liability to which Ms. Wright referred us, liability of between 78% and 28.5% was apportioned to defendants in the position of the pub defendants in this instance.

[37]         Notably, counsel for Mr. Sulyma made no submission at trial as to what portion of blameworthiness should be allocated to these defendants.  The plaintiff submitted that the figure should be 5% and the trial judge simply adopted that submission, apparently without considering the precedents in this province that augur in favour of a considerably higher apportionment.  Moreover, the trial judge’s suggestion that she would have allocated 75% of the liability to Mr. Leprieur if only two parties had been involved, and her effectively “crediting” him with the 5% seems illogical, with all due respect.   The proper course was for the trial judge to consider the relative fault of all three parties (assuming, as counsel agreed, that the pub defendants could be treated as one for the purposes of this determination) and to determine the relative blameworthiness of each in comparison to the others.

[38]         I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.