ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing fault between a vehicle and a pedestrian.

In last week’s case (Anderson v. Kozniuk) the Plaintiff was crossing a street in an unmarked crossing.  In the course of crossing he “cut the corner” and walked away from the intersection.  He was walking “briskly“.   At the same time the Defendant motorist was travelling south on 12th Street, she “went through the intersection and hit (the Plaintiff)“.

Madam Justice Russell found both parties at fault with the driver shouldering 70% of the blame.  In coming to this conclusion the Court provided the following reasons:

[69] When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed. The very presence of the marked crosswalk should have been an indication to her of the possible presence of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is possible she would have seen the plaintiff before the last second, when it was too late to avoid him.

[70] Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.

[71] Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. Had he crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it is possible Ms. Kozniuk would have seen him. As well, had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. By angling across towards the bus stop, as he did, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.

[72] By leaving the crosswalk, the plaintiff was also entering a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him. He failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12^th. His awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of checking its proximity to him…

[75] I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.

[76] The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident…

[78] In reviewing the cases put before me by counsel, including Karran v. Anderson, 2009 BCSC 1105, Beauchamp v. Shand, 2004 BCSC 272, Wong-Lai v. Ong, 2011 BCSC 1260, I have determined that the relative degrees of blameworthiness should be as follows: 30% to the plaintiff and 70% to the defendant.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with fault for a collision involving a jaywalking pedestrian.

In last week’s case (Wong-Lai v. Ong) the elderly Plaintiff and her husband where involved in a serious collision in 2009.  It was a dark and rainy Vancouver Autumn evening.  As they crossed the street to return to their car they were struck by a vehicle driven by the Defendant.  The Plaintiff was not in a marked cross-walk at the time.  Her husband died and the Plaintiff suffered severe injuries.

The Court found that while the Plaintiff was jay-walking she should have been visible to the Driver.  The Court found that the driver was not paying sufficient attention and assessed him 25% at fault.  In reaching this conclusion Mr. Justice Sewell provided the following reasons:

[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries…

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%.  Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

The Plaintiff’s damages were assessed at just over $307,000.  $200,000 of this assessment were for the Plaintiff’s non-pecuniary loss.  In arriving at this figure Mr. Justice Sewell provided the following summary of the Plaintiff’s injuries:

[65] In this case Ms. Lai suffered very grievous injuries. She was struck by a car which I have found to be travelling at close to 60 kilometres per hour.  A good summary of her injuries is found in the report of Dr. Ng.  It is as follows:

1) Gross bleeding from urine requiring emergency urological consultation. A CT cystogram ruled out bladder rupture. Ct scans of the kidneys did not show any severe renal damage and she only required observation and support. However angiogram showed the pelvic fractures has ruptured blood vessels and she had bleeding in the blood supply to the pubic bone and these required embolisation to stop the bleeding.

2] Cervical Cl C2 unstable fracture. This required immobilisation and stabilisation in a collar and traction for the first eight weeks. She also has a moderate central cervical disc protrusion at level C6-7 which indented her cervical spinal cord.

3] Chest contusions left upper lobe, right middle lobe, and multiple rib fractures of the left 3 to 6 ribs and left 8 rib.

4) Multiple pelvic comminuted fractures bilaterally, namely superior and inferior pubic rami. She required immobilisation for her neck and leg fractures as well as for these fractures for the first eight weeks. She remained in the intensive care unit for a few weeks for treatment and stabilisation of all her injuries.

5) The left Tibial and left Fibular fractures require manual reduction and internal fixations on December 1, 2009. She returned to the intensive care unit post operatively.

6) Brain injury, which on CT scan showed multiple bleeding present inside areas of her brain and a small subdural hematoma (within the skull but outside the brain), located in between the cerebral hemispheres. There is a large left scalp hematoma. Her conscious levels and neurological state were monitored in intensive care over the next few weeks

…

[83] In my view the most important factors in this case are the severe and painful injuries suffered by Ms. Lai, the marked degree of permanent disability, the loss of independence and the increased risk of morbidity and mortality identified in Dr. Guy’s opinion.  I also note that Ms. Lai’s stoicism and determination to make the best of her predicament should not diminish the amount of damages awarded to her.

[84] I have reviewed the numerous decisions on pecuniary damages involving serious injuries cited to me by counsel.  These cases are all of course fact specific.  My review of them, coupled with a consideration of the principles restated in Stapley, leads me to conclude that an award of non pecuniary damages in the amount of $200,000 is appropriate in this case.

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.

(Update: The below decision was upheld by the BC Court of Appeal in reasons for judgement dated August 3, 2011)

As I’ve previously written, motorists travelling with the right of way can still be found at fault for a collision in British Columbia.  If you have the right of way but know or ought to know that someone is not yielding you can be found at fault if you fail to take reasonable steps to avoid a collision in these circumstances.  This principle was well demonstrated in reasons for judgement released today by the BC Supreme Court, Kelowna Registry.

In today’s case (Walter v. Plummer) the 16 year old pedestrian Plaintiff was struck by the Defendant’s motorcycle.  The Plaintiff was jaywalking at the time of the collision.  The Plaintiff crossed in front of a stopped tractor trailer and stepped into the Defendant’s lane of travel.  This made it difficult to see the Plaintiff.  The Defendant was not speeding.  Despite this the Defendant was found partially at fault for the crash for failing to take reasonable care in all of the circumstances leading up to the crash.

The Court concluded that the Defendant was careless because she ought to have anticipated jaywalkers at the time and could have taken greater care in operating her motorcycle.  Mr. Justice Barrow provided the following useful summary in explaining why both parties were at fault for this crash:

[25] I am satisfied that Mr. Walter was crossing the street at a casual walking pace, neither particularly fast nor particularly slow. Ms. Plummer was travelling approximately one to two feet to the left of the mid-point of the southbound right turn lane. She saw Mr. Walter for the first time when he emerged from in front of the tractor-trailer truck and walked into her path of travel.

[26]         Based on Dr. Toor’s and Ms. Plummer’s evidence, I am satisfied that the point of impact between Mr. Walter and Ms. Plummer’s motorcycle was two or three feet into the right turn lane and that Mr. Walter was visible to Ms. Plummer for perhaps two more feet as he passed from in front of the tractor-trailer truck to the boundary of the right turn lane…

[41]         There are several significant features of the circumstances facing Ms. Plummer that serve to elevate the degree of care required.

[42]         The first is the reasonably foreseeable risk of jaywalking pedestrians. The defendant was aware that students frequently jaywalked across Rutland Road. Ms. White said that, in her experience, there were many jaywalking students in that area shortly after the schools are dismissed. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.

[43]         A second and related circumstance is that Ms. Plummer knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.

[44]         Finally, and significantly, Ms. Plummer was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.

[45]         All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent. It is a situation in which a driver ought to have been proceeding in an “alerted” state, to borrow from the categories used in the perception-response studies.

[46]         As to Mr. Walter, he owed a duty to take reasonable care for his own safety. He breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of Ms. Plummer. I apportion liability 60 percent to Mr. Walter and 40 percent to Ms. Plummer.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault in a pedestrian collision case.

In today’s case (O’Connor v. James) the Plaintiff was walking along No. 6 Road in Richmond, BC, when he was struck by the Defendants vehicle.  The Plaintiff consumed some alcohol before the collision and was struck while he was walking on the actual roadway (as opposed to the shoulder) at the time of impact.  As a consequence the Court found that the Plaintiff was in breach of various provisions of the BC Motor (Vehicle) Act.

Specifically, Mr. Justice Burnyeat made the following findings of fact with respect to this accident:

[22] It was the consensus of all witnesses that Mr. O’Connor was dressed entirely in black that night and was wearing no reflective clothing.  I also find that the approaching vehicle driven by Mr. Hockley had the low beams activated.  I also find that the street light at the corner of No. 6 Road and Triangle Road was not operating.  Taking into account all of the evidence, I find that Mr. O’Connor was on the road surface, and not on the grass median beside the southbound lane of No. 6 Road when he was hit….

[23] I accept the evidence of Ms. Journeau, Mr. Hockley, Ms. Kamayah, and Mr. James that Mr. O’Connor was in the southbound lane of No. 6 Road when he was hit by the vehicle driven by Mr. James.  I find that it would have been impossible for the collision to have occurred on the grassy median and for the vehicle driven by Mr. James to have come to rest where it did if the contact with Mr. O’Connor had been on the grassy median.  Walking where he was walking, Mr. O’Connor violated a number of provisions of the Motor (Vehicle) Act, R.S.B.C. 1996, c. 319:

179      (2)  A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

182      (1)  If there is a sidewalk that is reasonable passable on either or both sides of a highway, a pedestrian must not walk on a roadway.

(2)  If there is no sidewalk, a pedestrian walking along or on a highway must walk only on the extreme left side of the roadway or the shoulder of the highway, facing traffic approaching from the opposite direction.

[35] From the evidence, I make the following findings:  (a) the temperature that night in the area approached the freezing point; (b) the road surface was either icy or covered with dew as a result of the new-freezing atmospheric conditions; (c) the posted speed limit on No. 6 Road is 50 km/h; (d) the vehicle being driving by Mr. James was travelling at somewhere between 55 km/h and 65 km/h that night; (e) it was the intention of Mr. James to make a left turn at the intersection of No. 6 Road and Triangle Road and this intersection which would be to the left of Mr. James was being approached by Mr. James; (f) the vehicle driven by Mr. Hockley was being driven towards Mr. James and the low-beam lights of the Hockley vehicle were activated; and (g) the street light at the intersection of No. 6 Road and Triangle Road was not operative so that illumination of No. 6 Road at that point was diminished.

The court went on to find that the Pedestrian Plaintiff was 90% to blame for this collision and that the Defendant motorist was 10% to blame.  In dividing fault this way Mr. Justice Burnyeat made the following analysis:

I am satisfied that Mr. James was negligent in the operation of the vehicle which struck Mr. O’Connor.  Mr. James ignored the road conditions, visibility on No. 6 Road, the speed limits, his knowledge that there were no sidewalks, and his knowledge that there might be pedestrians.  All of these factors contributed to a need for Mr. James to drive more slowly than even the speed limit which was in effect.  Mr. James owed a duty of care to Mr. O’Connor and did not meet that duty by driving his car at the speed he was going when it hit Mr. O’Connor….

It is clear that the judgment of Mr. O’Connor was somewhat impaired by alcohol.  As well, he was dressed entirely in black without reflective clothing.  His clothing made it difficult if not impossible for drivers to see him.  Contrary to s. 182(2) of the Motor (Vehicle) Act, Mr. O’Connor was not walking facing traffic, and was not walking on the shoulder of No. 6 Road.  Mr. James has shown that the conduct of Mr. O’Connor that evening showed a want of reasonable care for his own safety and that this contributed to causing his injuries.  Mr. James has proven that Mr. O’Connor did not conduct himself in a reasonable manner so that his injuries could have been avoided or, at least, diminished.  In the circumstances, I assess liability at 90% against Mr. O’Connor and 10% against Mr. James.

The short answer is yes and reasons for judgment were released today demonstrating this.

In today’s case (Karran v. Anderson) the Plaintiff was seriously injured when she was struck by the Defendant’s vehicle while she was jogging “against the light in a marked crosswalk“.  As a consequence of the impact the Plaintiff “was thrown fifty-seven feet in the air and landed in the south crosswalk…She suffered an occipital hematoma, a fractured left femur, a dislocated right knee…back and neck injuries as well as extensive bruises and abrasions.”

At the time of the accident the Defendant had a green light and he was not speeding.  The Plaintiff, on the other hand, was jaywalking.  Nonetheless Mr. Justice Cohen of the BC Supreme Court found that the Defendant was partially at fault for this crash.  How can this be?  The reason is the determination of fault in BC Personal Injury Claims (with the exception of intentional torts) is governed under the common law of Negligence.  A person can be found negligent even if they did not brake any statutory law during an accident.  Mr. Justice Cohen summarized this principle concisely stating that “ the authorities establish that the common law duty of care exists notwithstanding statutory rights of way and that a breach of a statutory right of way merely provides evidence in support of a finding of a negligent breach of the common law duty of care”

In today’s case the court made the following findings of fact about how the collision occurred:

I find that the plaintiff jogged across Howe Street against the light in the north crosswalk in front of vehicles that were stopped in the two middle southbound lanes; that the southbound vehicles that were stopped when the plaintiff passed in front of them had the green light; that just before the plaintiff was struck by the truck she glanced to her left looking north up Howe street in the east curb lane; that there was heavy rush hour traffic; that the east curb lane on Howe street was open to southbound traffic; that some of the westbound traffic travelling on Smithe Street had failed to clear the intersection thereby preventing other westbound vehicles from entering the intersection; that the defendant’s speed reached 50 km/h; and, that the defendant braked his vehicle just prior to the collision.

The court found that the Defendant was 25% to blame for this collision because he failed “to take any steps to avoid the accident“.  In coming to this conclusion Mr. Justice Cohen highlighted the following facts:

[65] Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident.  In my opinion, he did.  I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street…

[67]         The defendant was proceeding on a green light and thus had the right of way.  However, I find that the defendant did not keep a proper lookout.  He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street.  I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.

[68]         Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff…

[100] The defendant accelerated from the intersection at the intersection of Howe and Robson Streets to reach 50 km/h and he maintained this speed to virtually the point of impact with the plaintiff.  I agree with the plaintiff that driving at the speed limit in the east curb lane while the vehicles in the middle two lanes were stopped on a green light was not reasonable nor prudent given the traffic conditions at the intersection.

This case contains a lengthy and thorough discussion of the law regarding the duties of motorists and pedestrians in crosswalk accidents and is worth reviewing in full for anyone researching or involved in a liability case dealing with the same.