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.

Posts Tagged ‘inevitable accident’

Motorist Found Fully At Fault Following Collision With Moose at Highway Speed

August 7th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability following a collision with a moose in Northern BC.

In today’s case (Knight v. Knight) the Defendant collided with a moose causing catastrophic and disabling injuries to his spouse who was a passenger in the vehicle.  The Defendant argued he was not at fault as he was not speeding and had little time to react.  Mr. Justice Sewell rejected this argument and found him fully at fault.  In doing so the Court adopted ICBC’s “Learn to Drive Smart” manual as being relevant in assessing the standard of care and provided the following reasons:

[44]         In this case, Mr. Knight’s evidence is that he was driving at the posted speed limit, was looking straight ahead while driving because of the oncoming headlights of the Thomas vehicle and took no action when he noticed those headlights black out. Mr. Knight was aware that there were signs warning of the risk of moose being present on the highway and had on an earlier occasion seen a moose on Highway 37, albeit closer to Terrace. He was also aware that the risk of a moose being present was increased at dusk and that moose were more likely to be present during the rutting season, which includes October. There would be a minimal burden imposed on the defendant from driving more slowly. The only result of doing so would have been that he would have arrived at his destination a few minutes later than he would have if he was driving at the posted speed. There can be no doubt that a reasonable person living in Northern British Columbia would have been aware of the grave consequences of colliding with a moose at highway speed.

[45]         With respect to the standard of care, the Insurance Corporation of British Columbia’s Learn to Drive Smart Manual states at page 129:

Strategies: watching for animals

To help prevent a collision with an animal:

Scan the sides of the roadway ahead for animals

Watch for animal crossing signs when driving through farming or wooded areas. Slow down in these areas.

Be extra cautious at dusk and dawn. This is when animals move around to feed, and it is also harder for you to see them at these times.

Look for sudden, unusual spots of light on the roadway at night. This may be the reflection of your headlights off an animal’s eyes.

Remember that wild animals often move in herds. If you see one animal, there may be more.

[46]         I consider that the recommendations contained in the Driver’s Manual to be relevant in determining whether Mr. Knight met the required standard of care in this case.

[47]         In his evidence and examination for discovery, Mr. Knight admitted that he took none of the precautions recommended above. I am aware that I must be cautious about admissions made by Mr. Knight in this case given the fact that his wife is the plaintiff and that he therefore stands to benefit from an award in her favour. However, taking into account the whole of his evidence, his demeanor when giving evidence and the direct manner in which he answered questions put to him, I have no reason to believe that he was attempting to deceive me. Mr. Thomas’ estimate of the speed of the Knight vehicle was consistent with Mr. Knight’s evidence.

[48]         I conclude that Mr. Knight was operating his vehicle in a negligent manner on the night of October 22, 2008. I find that given the time of the year and the time of day and the presence of moose warnings signs on Highway 37, Mr. Knight was negligent in failing to slow his vehicle and in failing to take any extra precautions to keep a look out for the presence of moose on or near the highway.

[49]         I also find that he was negligent when he failed to immediately slow his vehicle when he observed something crossing in front of the headlights of Mr. Thomas’s oncoming truck.

[50]         In my view a reasonable person in Mr. Knight’s position would have immediately taken steps to slow his vehicle when he saw the headlights of the oncoming vehicle black out. I find that Mr. Knight was aware that something was obstructing the lights of the oncoming vehicle. Given the other factors I have already outlined – the warning that moose might be present on the highway, the time of day, and the fact that October is in the rutting season when moose are more likely to be present – I conclude that a reasonable driver would have realized that there was a material risk that it was an animal that was obstructing the lights and would immediately have applied his brakes and slowed his vehicle until he had ascertained what was causing the obstruction. I find that it was negligent of Mr. Knight not do so.

 


Driver Liable for Collision After He “Dozed Off” at the Wheel

June 20th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, assessing fault for a collision where a motorist lost consciousness while behind the wheel.

In this week’s case (Holt v. Rother) the Defendant motorist lost consciousness while driving his vehicle.  His vehicle veered across the oncoming lane and onto the southwest shoulder where he struck and seriously injured the Plaintiff pedestrian.

The Defendant argued he was not at fault suggesting that an “unexpected and unforeseeable medical condition” caused him to lose consciousness.  Mr. Justice Barrow rejected this explanation finding it was more likely than not that the Defendant simply ‘dozed off’.  In finding the Defendant fully at fault Mr. Justice Barrow provided the following reasons:

[34]         The issue that remains is whether the defendant has rebutted the inference of negligence that arises from the proven manner of driving. He points out that it is impossible to prove what may have caused him to lose consciousness, if that is what happened, and he is not required to do that. It seems to me that it is at least as likely that Mr. Rother dozed off just before he struck the plaintiff as it is that he lost consciousness for some other reason. In fact, I think this is the more likely explanation. He was 76 years old. He had been out in the hot sun all afternoon. He had been intermittently swimming. He had driven 20 or 30 minutes on the highway in the late afternoon. I agree with Dr. Cameron that a syncopal episode, while possible, is not a likely explanation for what happened. Further, I agree that vasovagal fainting, while more likely than a syncopal episode, is less likely than simply dozing off.

[35]         In reaching this conclusion, I have considered the actual driving evidence. It is not necessary to conclude that Mr. Rother was attempting to flee the scene after he struck the plaintiff. I have no doubt that had he been aware he hit the plaintiff, he would have stopped immediately. I think it likely that he was not aware he struck the plaintiff and was not attempting to drive away when he hit the lamp standard. I think it likely that he was aroused from his momentary lapse of consciousness, and before he regained his wits, he struck the lamp standard and his vehicle rolled over.

[36]         As noted by Evans J. in Boomer v. Penn, “[t]he evidence must disclose the probability that the driver’s acts and omissions were not conscious acts of his volition”. Further, he must establish that if he suffered a lapse in consciousness, that it was not reasonably foreseeable. Dr. Francis said, and common experience supports, that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. While Mr. Rother did not say that he experienced such symptoms he is, as noted, an unreliable historian, and his memory of events shortly before the accident is not complete.

[37]         I am not satisfied that Mr. Rother has discharged the onus he bears to establish that his driving, on the day in question, was not volitional or, if it was not volitional, that it was the result of something that was not reasonably foreseeable.


ICBC Application To Withdraw Liability Admission Denied

April 5th, 2013

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.

In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:

[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.

[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.

[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.

[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.

[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.

[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:

I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.

[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:

It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.

[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.

[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.


Law of Spoliation of Evidence Discussed by BC Court of Appeal

February 21st, 2013

Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.

In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision.  The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision.  The Plaintiff argued that the vehicle was prematurely destroyed and an adverse inference should be drawn that no mechanical failure took place.  The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence:

[27]         Finally, I turn to the plaintiff’s argument that ICBC’s (apparent) destruction of the Jeep “effectively destroyed” her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court’s inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the “real party in interest”, such that the vehicle was destroyed by a person who was in effect the defendant in this litigation.

[28]         I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.)

[29]         On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v. Canada (1896), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red Cross Society (1998) 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and the discussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that the evidence would be required for litigation purposes’.)  As stated in McDougall v. Black & Decker, “When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.”  (Para. 24).

[30]         The Court observed in McDougall that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms. Chow-Hidasi. (See McDougall, para. 25, British Columbia Law Institute, Report on Spoliation of Evidence (2004), at 10-20.)

[31]         In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.


Known Poor Road Conditions Defeat Inevitable Accident Defence

October 2nd, 2012

As previously discussed, although a driver can sometimes be faultless after rear-ending another vehicle, such a result is rare.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a motorist trying to escape blame following a rear end collision.

In last week’s case (Vo v. Michl) the plaintiff pulled onto Kingsway from a parked position and proceeded to to the left hand lane.  At the same time the Defendant was proceeding in the same direction and saw the Plaintiff pull into his lane and brake ‘some four or five seconds’ before the vehicles impacted.  The Defendant argued that he could not avoid the collision due to icy  road conditions.  Mr. Justice Savage rejected this argument finding the Defendant was aware of the poor road conditions well prior to the impact and should have adjusted his driving accordingly.  In finding the Defendant fully liable for the impact the Court provided the following reasons:

[16]         I accept that Mr. Vo had his left turn signal on at that point which was his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes but because of the road conditions did not slow appreciably before impact. The road conditions were apparent to him as he had been driving in those conditions. He knew it was icy. This is not a case, for example, of their being a patch of “black ice” in otherwise deceptively benign conditions, as was the case in Borthwick v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.).

[17]         Mr. Michl was negligent in driving too quickly for the road conditions in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in turning onto Kingsway were sudden and precipitous, as in some of the other cases referenced by the defence.

[18]         The defendant raises s. 151(a), and 170 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations, B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the position of the westbound traffic before he made this turn from the parked position onto Kingsway, and the westbound vehicles were well back at that point. The defence has said all that could be said to support their position, however, in my opinion Mr. Michl is 100% to blame for the accident.


No Negligence For Crash Following Tree Suddenly Falling on Roadway

July 13th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, following a summary trial addressing negligence for a collision which occurred after a tree suddenly fell onto a roadway.

In this week’s case (Waters v. Mariash) the Plaintiff was involved in a collision after a cottonwood tree “suddenly fell across the the highway, cutting off both lanes“.  The Plaintiff was in the curb lane and struck the tree.  The Defendant was driving in the inside lane a few car lengths behind the Plaintiff.  He hit his brakes, his vehicle fishtailed and hit the tree and the Plaintiff’s vehicle.  The Plaintiff argued the Defendant was negligent but the Court disagreed dismissing the claim against him.  In doing so Madam Justice Humphries provided the following reasons:

[7] The defendant said on discovery that he was about 100-150 feet away from the tree when he started to brake.  He said he had switched into the fast lane to avoid the merging traffic from 176th Street, and had been travelling about 100 kph in a zone posted at that speed.  He reduced his speed to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he put on his engine brake and downshifted, breaking and beginning to slide a little on the wet pavement.  His tires were brand new Michelins…

[15] The accident occurred on a heavily travelled freeway near between Vancouver and Surrey.  While there is always the possibility of obstructions on such a highway, such as an animal or a child dashing out, it would be a very remote possibility in such a location.

[16] The accident was not the result of an obstruction such as branches or debris that one might expect in a wind storm and that would be there to be seen if one were travelling at a reasonable speed.  This accident occurred because a tree fell suddenly in front of both vehicles, blocking both lanes.  Both vehicles hit the tree.

[17] This is not similar to a situation where a driver is travelling in the winter and is expected to cope with unexpected icy patches (according to the Court of Appeal in Redlack v. Vekved, supra, but perhaps not inHearn v. Rowland, supra).  There is no evidence from which an inference could be drawn that the defendant in this case was driving beyond his own competence or that of his vehicle.  He was travelling below the speed limit.  He was faced with an unexpected event that could not be anticipated and he reacted reasonably.  The other options suggested by the plaintiff are not reasonable in these exigent circumstances, and may have been even more dangerous.

[18] According to Hearn v. Rowland, the defendant does bear a heavier onus if he asserts a defence of inevitable accident, but not if he seeks to show, as in this case, that the accident happened without any negligence on his part.  The onus is therefore on the plaintiff to show that the accident occurred as a result of the defendant’s negligence.  I am not persuaded that he has done so.

[19] The action against the defendant Mariash is dismissed, with costs at Scale B.


Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

January 16th, 2012

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.


Defendant Not Liable For Collision Caused By Black Ice

December 14th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.

In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.


Driver Found Not Negligent For Collision With Moose

July 7th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, dismissing a personal injury lawsuit following a 2006 collision.

In this week’s case (Racy v. Leask) the Plaintiff was a passenger in the Defendant’s vehicle.  They were driving in a remote part of BC in the early evening when the vehicle encountered two moose on the roadway.  The driver could not avoid collision resulting in injuries to the passenger.  The passenger sued for damages although the claim was dismissed with Madame Justice Ker finding that the driver was not negligent.  In reaching this conclusion the Court provided the following reasons:

[100] In this case, Ms. Leask acted immediately and appropriately upon first encountering the moose. Upon rounding the bend or corner in the road and seeing the moose, she gave a warning to Ms. Racy and at the same time applied the brakes to slow the vehicle as best she could without risking swerving in either direction. The two moose were not standing in the lane of travel but were moving toward it from the shoulder on the right hand side of the highway. The road conditions were dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated. Rather, they were caught in the range of the headlights. There is no evidence as to what the range of the headlights on high beam for this model of vehicle is in this case. Ms. Leask was driving at least 10 km/h below the posted speed limit and was in all likelihood travelling at a speed of between 85 and 90 km/h. Ms. Leask reduced her speed to take into account the driving conditions including the fact that it was dark and the possibility of encountering wildlife.

[101] Significantly, and as in Pitt Enterprises and Fajardo, there is no evidence of what speed Ms. Leask would have to have been travelling at to have been able to stop her truck once the two moose became visible to her. Nor is there any evidence as to how far the defendant’s lights would have illuminated the highway in this case, something available in the case of Pitt Enterprises.

[102] In addition, the collision in this case did not occur in an area that could be described as a “moose alley” where it is more probable than not that moose will be found. While an accident may have occurred a year before in the same general area where a driver struck a moose, there is no other evidence to suggest this is an area where it is more probable than not that moose will be found. Ms. Leask was aware there might be wildlife in the area and had adjusted her speed accordingly and was wary of the possibility.

[103] As soon as Ms. Leask saw the moose she applied her brakes, but not with enough force to completely avoid colliding with the moose. I accept her evidence that the moose were fairly close to the vehicle, within the beam of the vehicle headlights, when she first encountered them and that they continued to move from the shoulder area to the vehicle’s lane of travel. Despite her efforts to avoid a collision by applying the brakes and maintaining a straight path, instead of swerving in either direction, the collision with the moose calf could not be avoided.

[104] Considering all the circumstances in this case, I conclude that the collision with the moose was not occasioned by any negligence or want of care on the part of Ms. Leask. I find that Ms. Leask was not driving at an excessive speed given the conditions. I also find that she was not negligent in failing to apply the vehicle brakes more forcefully or in failing to take any other evasive action such as pulling or swerving to the right or the left of her lane of travel. To have done so no doubt would have resulted in much graver consequences: a head on collision with either the mother moose or the calf. The plaintiff has failed to establish on a balance of probabilities the defendant was negligent in her response to seeing the moose on the highway. Accordingly, the plaintiff’s case fails and the action must be dismissed.

For more on this topic you can click here to access my archived posts dealing with single vehicle collisions and the inevitable accident defence.


Affidavits and Exhibits: Take Care To Review the Whole of the Evidence

May 6th, 2011

Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.

In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.

The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.

The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.