ICBC Law

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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘overtaking’

BC Court of Appeal Confirms Negligence for Passing Vehicle Blanketing Others in Snow

December 16th, 2015

Reasons for judgement were released today by the BC Court of Appeal confirming that a motorist can be negligent by passing others in poor conditions therby blanketing the other vehicles in snow.

In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

At trial the Defendant vehicle was found at fault for the collision.  ICBC’s appeal was dismissed with the BC Court of Appeal finding negligence can exist in these circumstances.  The Court provided the following reasons:

[12]        It appears to me it was clearly open to the judge to find that the speed of the SUV was excessive for the conditions. The plaintiff was travelling 40 to 60 kilometers per hour and, on his examination for discovery (the whole transcript of which ICBC put in evidence), he said the SUV “roared right by” and suggested it was twice as fast as he was “putting along”. He agreed that could have been 100 kilometers an hour, although he said he could not speculate because it all happened so fast. There was, of course, no evidence to the contrary and common sense dictates that, as any driver would know, the greater the speed of a vehicle the greater the amount of snow it may throw up when changing lanes on a snow-covered highway. It simply could not be said that if the SUV had passed more slowly and had not cut in front of the Jaguar as quickly as it did, the windshield of the Jaguar would have been completely obscured as it was. The speed of the SUV was excessive for the conditions because of the effect its speed had.

[13]        In my view, no error has been shown in the judge’s concluding that, in what he described as the “treacherous” conditions prevailing, the driver of the SUV had not met the standard of care required of him in the circumstances. That vehicle was required to be operated with due care and attention and with reasonable consideration for the plaintiff who was driving the Jaguar at a slow speed in the right-hand land. If undertaken, the passing and change of lanes was required to be done safely without adversely affecting the travel of that vehicle. It was open to the judge to conclude as he did the driver of the SUV knew or ought to have known the risk that was inherent in his operating that vehicle as he did. Clearly the standard of care was breached.

[14]        It follows that I would dismiss the appeal.


Motorist Liable for Collision After Blanketing Other Vehicle in Snow

September 22nd, 2014

Update December 16, 2015the reasoning in the below decison was upheld by the BC Court of Appeal today.

Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for a single vehicle collision.

In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

In finding the passing vehicle was fully at fault for passing when it was unsafe to do so Mr. Justice Ball provided the following reasons:

[17]         To determine whether the driver of the SUV was negligent, the Court must follow the analysis outlined in Crocker and Rowe. The driver of the SUV, as the driver of a vehicle overtaking another vehicle on the highway, owed a duty of care to the plaintiff. That duty is statutorily mandated in ss. 157-159 of the MVA.

[18]         Those sections also outline the required standard of care. Section 157 requires that the driver of an overtaking vehicle may only pass another vehicle on the left side “at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle”. Section 159 states that “a driver of a vehicle must not drive to the left side of roadway when overtaking and passing another vehicle unless the driver can do so safely.”

[19]         In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have – or should have – appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.

[20]         There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.

[21]         Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.

[22]         No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.

[23]         In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.


Motorist Passing Left Hand Turning Vehicle Found 75% at Fault for Collision

November 14th, 2013

Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.

In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle.  The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles.  At the same time the Defendant commenced a left hand turn into her driveway.  Both motorists were found at fault with the Plaintiff shouldering 75% of the blame.  In reaching this decision Mr. Justice Weatherill provided the following reasons:

[76]         Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted.  She ought reasonably to have been alive to the possibility of a passing vehicle.  She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn.  If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have. 

[77]         Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely.  I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident.  Each is partly liable for the accident.

[78]         I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision.  It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left.  The Truck/Trailer’s left turn signal should have been evident to him.  It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass.  The plaintiff did not do so.

[79]         In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook.  The defendant William Joseph Cook is vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of theMotor Vehicle Act.


Plaintiff At Fault in Fatal Tractor Trailer Collision for Running Stop Sign

July 22nd, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault following a two vehicle collision.

In last week’s case (Rackstraw v. Robertson) the Plaintiff was involved in a collision with a tractor trailer.  The tractor trailer was travelling Northbound on Mount Lehman Road.  The Plaintiff was travelling eastbound on Sunset Crescent which forms a T-intersection with Mount Lehman Road.

The Defendant “decided to pass a northbound vehicle ahead of him”.   To do so he accelerated above the speed limit and had to travel in the southbound lane.  As he did so he saw the Plaintiff approach the intersection and run the stop sign which was facing him on Sunset Crescent.  The vehicles collided and the Plaintiff died shortly after.

Ultimately the Plaintiff was found fully at fault for the collision.  In reaching this conclusion Madam Justice Fisher provided the following reasons:

[25] Mr. Rackstraw owed a duty of care to other drivers travelling on Mount Lehman Road, in particular Mr. Robertson.  He breached that duty by failing to stop at the stop sign, failing to keep a proper lookout and failing to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road.  Mr. Rackstraw was the servient driver at all times…

[32] …. the fact that Robertson was travelling over the speed limit will only constitute negligence if his speed is what prevented him from taking reasonable evasive action: see Cooper v. Garrett, 2009 BCSC 35 at para. 42.  In my view, there is no evidence which establishes that Robertson’s speed prevented him from doing so. His truck was just about at the intersection when he first saw Rackstraw’s vehicle, and only his trailer, or part of it, was still in the southbound lane when the impact occurred…

[37]it is my opinion that the accident in the case at bar was caused solely by the failure of Mr. Rackstraw to stop at the stop sign, to keep a proper lookout and to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road.  When Robertson started his pass, there was no reason for him to believe that he could not do so safely or that he would interfere with the travel of another vehicle.  As in Ferguson, he was engaged in a lawful manoeuvre.  He did not see, and could not reasonably have seen, the Rackstraw vehicle until he was just about at the intersection and he had no reasonable opportunity to avoid the collision.