ICBC Law

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, assessing global damages at $836,000 for injuries and loss flowing from a motor vehicle collision.

In last month’s case (Gilbert v. Bottle) the Plaintiff was a passenger in the Defendant’s vehicle.  His careless driving caused the vehicle to lose control ejecting the Plaintiff from the vehicle.  She sustained numerous physical injuries the most significant of which was described as a ‘complicated‘ traumatic brain injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Madam Justice Dickson made the following findings:

190] I conclude that Ms. Gilbert suffered a complicated mild traumatic brain injury with significant and permanent sequelae as a result of the accident…

[191] I also conclude that the change in Ms. Gilbert’s substance abuse pattern is substantially connected to her brain injury symptoms.  Dulling physical and emotional pain with crack cocaine shows markedly poor judgment and poor self-control.  Ms. Gilbert’s already inadequate functioning in these areas has been further compromised by her injuries.  In consequence, her substance abuse problem has altered in a significantly negative way…

[195] I further conclude that Ms. Gilbert suffers from chronic pain disorder as a result of the accident.  The pain includes frequent neck, shoulder and back pain, together with cervicogenic headaches which originate from soft tissue injuries to her neck.  I am satisfied that her pain is genuine in the sense that it is not feigned or goal-directed, although it has a significant psychological, as well as physical, component.  In particular, Ms. Gilbert’s pre-existing emotional vulnerability and increased emotional disturbance caused by her brain injury are both substantially connected to the severity and maintenance of her ongoing pain.  The onset of the pain is a result of the accident…

[198] The extent of Ms. Gilbert’s loss due to her accident-related injuries is substantial.  She is, in my view, a thin skull plaintiff.  Before the accident, she lived a borderline existence due to her harsh environment, disorganized lifestyle and poor general health and habits.  As Dr. Travalos points out, however, she was nonetheless able to work with New Directions.  She was also able to participate in and enjoy intimate personal connections.

[199] As a result of the accident, Ms. Gilbert can no longer do either.  In effect, she has lost the two major sources of pleasure, purpose and meaning in an already difficult life.

[200] Ms. Gilbert is and will probably remain competitively unemployable due to the effects of her traumatic brain injury.  Although her post-accident functional change is more substantial than Dr. Travalos assumed, I accept his view that her injuries tipped her over the edge in a vocational sense.  I also accept that Ms. Gilbert’s quality of life may improve with appropriate support and treatment.  I am satisfied, however, that, even with support, she will probably never work for pay again…

[220] I conclude that an award of $200,000 in non-pecuniary damages is appropriate in all of the circumstances.  Ms. Gilbert’s permanent loss of capacity to work and engage emotionally with others is a great loss given their central significance in her difficult life.  In my view, Ms. Gilbert’s consequent need for solace is also great.  Nevertheless, she is entitled to compensation for only the change to her original position.  The award should not extend to her pre-existing difficulties that would have persisted or deteriorated further regardless of her injuries.  In other words, the award must be fair and reasonable to both parties.

(Image via Wikimedia)

As I wrote in one of my first blog posts in 2008, failing to wear a seatbelt can reduce the level of compensation an otherwise faultless accident victim is entitled to in their personal injury claim.  However, this reduction does not flow automatically by failing to wear a seatbelt.  The Defendant still bears the burden of proving that it was unreasonable in the circumstances not to wear a seatbelt and further that injuries would have been lessened with proper seatbelt use.  Absent such evidence a Plaintiff’s compensation will not be reduced.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Gilbert v. Bottle) the Plaintiff was involved in a single vehicle collision in 2005.  She was a passenger in the Defendant’s vehicle.  She occupied the back seat between another passenger and a baby seat.  Both seatbelts available in the back were inaccessible given this position as one seatbelt was affixed to the baby seat and the other was located where the other passenger was seated.  The Plaintiff could have removed the affixed seatbelt herself (as the babyseat was unoccupied) but she did not do so.

The driver was “impaired by alcohol when he approached a corner too quickly and lost control of the vehicle“.  The Plaintiff was ejected.  She suffered severe injuries including a complicated traumatic brain injury.

ICBC presented evidence that the Plaintiff’s injuries would have been reduced with proper seatbelt use and argued that the Plaintiff’s damages ought to be reduced.  Madam Justice Dickson rejected this argument and did not accept ICBC’s expert’s opinion (the Court’s discussion of this can be found at paragraphs 44-48 of the judgement).  Madam Justice Dickson made the following findings and provide the following discussion canvassing this area of law:

[24] A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts.  If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence.  Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent: Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609…

[52] Defence counsel also submits that Ms. Gilbert contributed negligently to her own injuries by agreeing to ride as a passenger in a position not equipped with an available seatbelt.  He says the circumstances are similar to those in Thon and, had Ms. Gilbert exercised reasonable care, she could have avoided her injuries entirely by not assuming the risk of riding in the middle backseat.  On this analysis, it is unnecessary to consider the extent to which proper seatbelt use would have avoided or reduced her injuries.  If, however, such an analysis is required he says, based on Mr. West’s evidence, those injuries caused by ejection from the vehicle could have been avoided.  He concedes that, on a Thon analysis, an apportionment in the 10% range would be appropriate.

[53] Despite his able submission, I cannot agree with defence counsel.  In my view this case is not analogous to Thon, which concerned plaintiffs who knowingly rode in an area of a vehicle not equipped with seatbelts (having done so in the same area earlier in the day).  In this case, the backseat of the Capri was equipped with two seatbelts but one was affixed to the baby seat and the other was located in the position occupied by Mr. Wycotte.  Ms. Gilbert was unaware of this situation until after she got in the car and, by that time, Mr. Bottle had pulled away.  Thereafter, her attempts to access the seatbelt used by the baby seat were unsuccessful, as were her attempts to persuade Mr. Bottle to stop the car and let her out.

[54] In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri.  It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety.  In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.

[55] If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal.  Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care.  Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct.  In these circumstances, at most I would have assessed her contributory negligence at 5%.

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.