ICBC Law

Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries following a motor vehicle collision.

In yesterday’s case (Miller v. Lawlor) the 24 year old Plaintiff was involved in a ‘violent‘ rear-end collision in 2009.  Fault was admitted by the rear motorist.  The Plaintiff suffered soft tissue injuries to his shoulder, neck and back which continued to cause problems in heavier employment and recreational tasks.  The limitations were likely going to be permanent.  In assessing non-pecuniary damages at $65,000 Mr. Justice MacKenzie provided the following reasons:

[100] I agree with the plaintiff that the medical opinions have not been seriously challenged by the defendant.

[101] These expert opinions, coupled with the evidence of the plaintiff and his father and co‑workers, substantiate the plaintiff’s claim that he probably suffers from a permanent partial disability that still causes discomfort and pain mostly when he is engaged in strenuous above-the-shoulder tasks and bending over in restricted areas at work…

[110] In this case, the medical evidence is consistent in concluding that the plaintiff suffers from chronic pain and discomfort in varying degrees. I accept that his quality of life has clearly been diminished. The accident affected his ability to help at home with heavier chores such as chopping wood. He now curtails his surfing. He has become so cautious with respect to snowboarding that he does not do it at all.

[111] The plaintiff testified he continues to suffer sporadic pain and discomfort from the injuries he suffered because of the accident. I accept his evidence. I agree with Mr. McIver that the plaintiff has chronic soft-tissue symptoms that, according to the medical opinions, are likely to persist. They have continued for over three years and have affected his overall lifestyle as well as his ability to fully function at work. According to Dr. Adrian “’the prognosis for further recovery … over time is poor.” Unlike some, this plaintiff has not made numerous trips to a chiropractor or physiotherapist or massage therapist. I am satisfied this is because of his stoic personality coupled with the advice he has received from the medical personnel that his exercise regime is now the best thing he can do to minimize his symptoms. The infrequency of massage and chiropractic sessions should not be held against him.

[112] Taking into account the totality of the evidence and the authorities presented by both counsel, I am satisfied that an appropriate award of non-pecuniary damages here is $65,000.

Further to last week’s post on this topic, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for intersection crashes.  This week’s case is of particular interest because a ‘dominant‘ driver was found completely at fault for striking a left hand turning vehicle at an intersection.

In today’s case (Kelly v. Yuen) the Plaintiff was attempting a left hand turn at a light controlled intersection in Vancouver, BC.   As she turned the Defendant, who was approaching from the opposite direction, entered the intersection resulting in a collision.  The Defendant was travelling in the curb lane which, at the time of the crash, was restricted to buses and bicycles.  The Defendant argued that he had a green light and the Plaintiff was fully at fault.  The Plaintiff argued that the Defendant should not have been in the restricted lane and was fully at fault.  Ultimately the Court sided with the Plaintiff and allocated 100% of the responsibility for the crash on the through-driver.  Mr. Justice MacKenzie provided the following summary of some legal principles at play in these types of cases:

[23]         The legal principles with regards to left turn situations have been addressed in many cases. In Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 15, Legg J. stated:

In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs.

[24]         In Carich v. Cook (1992), 90 D.L.R. (4th) 322 at 326 (B.C.C.A.), Lambert J.A. had this to say:

… The question as a driver turns left is whether there is any vehicle in any approaching lanes that constitutes an immediate hazard. If there is, the turn should not be made. If there is not, then the turn can be made and of course, care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime. …

[25]         Of course, each case must be determined on its own particular facts. For example, in Uyeyama (Guardian ad litem of) v. Wittenberg, [1985] B.C.J. No. 1883 (C.A.), the BC Court of Appeal determined that a left-turning was not negligent for having entered an intersection, having failed to detect the excessive speed of the defendant’s vehicle. In addition, the left-turning driver was entitled to assume that the oncoming vehicle would stop at a red light and according to traffic law. The court concluded at para. 44 that the left turning driver had “exercised due care and commendable prudence in taking the action she did in attempting to make a difficult left turn.”

[26]         This case was cited with approval by the BC Court of Appeal in Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.).

[27]         The court in Kokkinis considered other cases where the court held in favour of the servient driver. The court looked to Morgan v. Hauck (1988), 27 B.C.L.R. (2d) 118 (C.A.), a case where the BC Court of Appeal held that a dominant vehicle which had accelerated towards an intersection despite amber warning lights and then entered the intersection when the light was red could not rely on the relevant section of the Motor Vehicle Act to escape liability. In Kokkinis at para. 6, Newbury J.A. speaking for the court summarized the position taken in Morgan as follows:

… Esson, J.A. (as he then was), for example emphasised the “heavy onus which rests upon drivers approaching signals of this kind to make due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day. Their clear duty is to comply with the warning lights and to not ‘run the red’.”  But for the fact that appellate courts should, he said, vary apportionments of blame made by trial judges only in very rare circumstances, Esson, J.A. (with whom Macfarlane, J.A. concurred) would have considered setting aside even the 10 percent allocation of fault.

[28]         At para. 7 of Kokkinis, Newbury J.A. considered the Court of Appeal’s decision in Brucks v. Caslavsky, 45 B.C.A.C. 62, and stated the following:

A more recent case from this Court along similar lines is Brucks et al. v. Caslavsky et al. (19 April 1994) Vancouver Registry CA016390 (B.C.C.A.), which apparently was not cited to the trial judge. There, this Court rejected the argument that the onus placed by s. 176 of the Act is “absolute” and that in deciding whether an oncoming car constitutes an “immediate hazard”, a left-turning driver must consider the possibility that any oncoming motorist may intend to speed through an intersection and disobey the traffic signal. Taylor, J.A. for the Court quoted the well-known statement of principle of Lord Atkinson in Toronto Ry. Co. v. King et al. [1908] A.C. 260, at 269:

. . . traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less on the assumption that the drivers of all other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.

[29]         Even though Kokkinis and Morgan dealt with vehicles which approached an intersection and turned left on an amber light, the principles and observations stated in these decisions are helpful. At para. 10 of Kokkinis the court stated that the servient driver should not be faulted for having diverted her attention momentarily from oncoming traffic to check cross traffic. This is because servient drivers have “the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection.”

[30]         At the same paragraph, the court added:

… To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. …

[31]         The authorities make it clear in my opinion that for liability to be found against the dominant driver in situations where the servient driver is making a left turn in front of stopped traffic, the evidence must establish that the dominant driver had a sufficient opportunity to avoid the accident, of which a reasonably careful and skilful driver would have availed him or herself (Pacheco, para. 18).

In finding the Defendant fully at fault the Court reasoned as follows:

[59]         The circumstances here are significantly different. This is not a situation where the servient driver has disregarded her statutory duty. Here it is just the reverse. Mr. Yuen flagrantly ignored the restriction on travel in the curb lane in a clear attempt, in my opinion, to drive along the restricted lane in order to get to his destination earlier rather than wait like other responsible drivers who were complying with the curb lane restriction. As Esson J.A. said in Morgan, I am satisfied that Mr. Yuen should have made “due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day”.

[60]          As Ker J. said in Rothenbusch at para. 149, “Who has the statutory right of way is informative; however, it does not determine liability in an accident. Drivers with a statutory right of way must still exercise caution to avoid accidents where possible.”

[61]         In these circumstances, I am satisfied a reasonably careful and prudent driver would not have pulled into the restricted curb lane, as Mr. Yuen did with limited vision, and accelerate towards a backed up intersection at an excessive rate of speed. As the dominant driver, Mr. Yuen was not required to take “extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle.” (Salaam v. Abramovic, 2010 BCCA 212 at para. 25). However, I am satisfied a reasonably prudent driver, exercising reasonable caution, would have had a sufficient opportunity to avoid the accident.

[62]         Furthermore, Ms. Kelly did not breach her statutory duty under s. 174 to yield the right of way. She took reasonable steps to determine she could make the left turn safely. The evidence which I have accepted establishes that when Ms. Kelly looked right and entered the curb lane, the Yuen vehicle was not “so close as to constitute an immediate hazard”.

[63]         As a result, I am satisfied that the accident was caused solely by the negligent driving of Mr. Yuen. The defence has not established any contributory negligence on the part of Ms. Kelly.

Reasons for judgement were released this week dealing with fault and damages arising from a slip and fall incident at a North Vancouver gas station.

In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an insurance adjuster for ICBC, slipped and fell on ice located near a car wash at an Esso Station in North Vancouver.   He suffered various injuries, the most serious being a dislocated knee.  He claimed the Defendants were liable for his injuries and sued for damages.  The Defendants disagreed arguing that they took reasonable care to keep the area clear of ice.

Mr. Justice MacKenzie agreed with the Plaintiff and found the Defendant responsible for the incident.  The evidence showed that when cars left the car wash water would drip down and sometimes freeze causing ice.  The Court found that the Defendant did not take adequate steps to warn of this known hazard.  In finding the gas station at fault the Court reasoned as follows:

[69] The defendants maintained no regular patrol for ice, but left the frequency of patrol for ice to the employees. Mr. Morrow testified that when he did patrol, he occasionally found ice, and then he would apply fresh salt. So the presence of ice would move him to reapply salt. This indicates either that he was not salting enough, or the defendants were not sufficiently addressing the problem. Both Mr. Morrow and Mr. Christian knew that dripping water from cars would wash the salt away.

[70] In short, the washing away of salt by the water dripping from cars leaving the car wash bay, and then freezing, constituted an unusual hazard of which the defendants were aware, but the plaintiff was not. Mr. Morrow knew the ice was hard to see, particularly if it was clear, and covered by water dripping from cars. He saw the ice on which the plaintiff slipped and it was covered by water. Therefore, it was hard to see.

[71] The defendants did nothing to warn users of the car wash about the risk of ice. They could easily have put out the orange warning cones that conventionally alert people to risk, or posted readily visible signs warning of the risk of ice. The expense would have been minimal. They could also have improved the drainage to avoid the washing away of the salt, or closed the car wash, as they had done on a couple of occasions before when it was cold enough for ice to form at the known area of risk. The patrol for ice, and salting could have been more frequent.

[72] In MacLeod v. Yong, [1997] B.C.J. No. 2108 (S.C.) at para. 8, Mr. Justice Burnyeat listed a series of factors that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the Occupiers Liability Act. These factors include “whether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.”

[73] In considering whether the defendants have breached their duty to take reasonable care to ensure the plaintiff would be reasonably safe on the premises, I must consider all the circumstances of the case, including: the slip and fall was reasonably foreseeable and the defendants were clearly aware of it; the efforts made by the defendants depended on the judgment of employees who were prone to human error and who were occupied with other duties; and it would have been easy and inexpensive for the defendants to put up a warning sign, or orange cones at the location they knew was particularly hazardous.

The Court went on to award the Plaintiff $40,000 for his injuries which included a dislocated knee cap.  In reaching this award Mr. Justice MacKenzie provided the following reasons:

[126]     The plaintiff’s most serious injury in the slip and fall was his dislocated right patella (kneecap). He also had a minor scrape on his head and strained wrists and abrasions that were bandaged at the hospital. He took nine days off work as the combined result of his knee and wrist injuries.

[127]     The dislocated kneecap caused the plaintiff excruciating pain. There was profuse swelling and a very large bruise. It was swollen and red for a few weeks or a month or more after the fall.

[128]     The plaintiff initially required crutches because he could not bear his weight. He also used a brace afterward, and tapered off his use of both the crutches and brace. The evidence as to how long he used both varies somewhat, but is simply a matter of inaccurate recording or memory, and not the plaintiff’s dishonesty.

[129]     The wrist pain lasted a month or two, and he had a very stiff neck with pain for a week or two…

[135] The knee pain, while gradually abating, had essentially plateaued by the spring of 2007. It was getting stronger and better, but he still felt pain and instability in the right knee in the spring of 2007. He saw his doctor in the spring and summer of 2007 and the doctor recommended he see a specialist, Dr. Forsyth, at the McGavin Clinic at UBC…

[140] In the summer of 2008, the plaintiff’s symptoms improved again and he noticed fewer symptoms. The pain ranged from nothing to 20 out of 100, or quite modest discomfort. However, knee stamina for walking and standing had not improved. Sitting for prolonged periods made his knee ache. He also noticed increased joint sounds in his knee, especially when climbing stairs. The plaintiff was forthright in admitting that he had some such sounds in both knees before the slip and fall, but after it, he noticed increased joint sounds in his right knee which he still notices…

[168]     The damages awarded in each case are specific to the particular facts. In this case, the plaintiff has suffered, and continues to suffer chronic pain and loss of enjoyment of life. His condition is likely to remain stable, although there is a risk that he may develop post-traumatic arthritis in the future, which could have further negative impact on his daily activities.

[169]     Based on my findings and upon reviewing the cases, I find an award of non-pecuniary damages of $40,000 is appropriate.