ICBC Law

When a crash happens its not unusual for the parties involved to have different versions of who is to blame.  When this occurs determining who will be found at fault in a subsequent lawsuit can be a difficult task.  When there are impartial and independent witnesses, however, the task of picking between differing versions can become easier.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Hough v. Dyck) the Parties were involved in a 2007 motor vehicle collision.  The Plaintiff’s pick up truck was rear-ended by the Defendant’s car.  The Plaintiff sued alleging the Defendant was at fault for driving carelessly.  The Defendant disagreed arguing that the Plaintiff cut in front of him and “abruptly stopped” leaving him without adequate time and space to safely bring his vehicle to a halt.

An independent witness to the collision came forward and provided the Court with her account as to what occurred.  She verified the Defendant’s evidence that the Plaintiff cut the Defendant off and then slammed on his brakes.  Ultimately the Court preferred the Defendant’s version of events and dismissed the lawsuit.  In doing so Madam Justice Baker provided the following comments:

[18] (The independent witness) Ms. Maynes testified that near the bottom of the hill, as traffic was approaching 92nd Avenue, she saw Mr. Hough’s vehicle pull across the double solid centre lines into the northbound lane, pass Mr. Dyck’s vehicle, swerve back into the southbound lane and then slam on its brakes.  She saw the brake lights of Mr. Dyck’s vehicle come on and saw the collision.  She said it was a minor impact, because of the relatively slow speed of travel due to heavy traffic….

[21]        I find Mr. Dyck to be a credible witness and I accept his testimony.  I consider Mr. Hough’s testimony to be inaccurate and unreliable.   The testimony of Ms. Maynes supports Mr. Dyck’s testimony that Mr. Hough caused the accident by first passing Mr. Dyck’s vehicle when passing was prohibited, as evidenced by a solid double centre line and then abruptly pulling back into Mr. Dyck’s lane and equally abruptly slamming on his brakes, for no good reason, and when it was foreseeable that a collision would result.  In doing so, he was negligent, and his negligence was the sole cause of the accident.

[22]        I am not persuaded that anything done or omitted to be done by Mr. Dyck caused or contributed to the accident.  He was cut off when Mr. Hough pulled back into his lane of travel and then stopped abruptly.

[23]        It follows that the action must be dismissed.  Mr. Dyck shall have his costs, payable by Mr. Hough, on Scale B.

The lesson motorist should take from this case is that independent witnesses can be vital to the success or failure of a personal injury lawsuit where fault is contested.  Following a collision, if possible, it is a good idea to take down the names and contact information of witnesses to the event prior to leaving the scene of the crash.

As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault.  There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC.  Her vehicle was rear-ended by a truck driven by the Defendant.  She sued for damages and the Court was asked to decide who was at fault.

The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant.  Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash.  In coming to this finding the Court provided the following reasons:

[44]         I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45]         Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46]         In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.

In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.

The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.

BC Courts must, in most circumstances, use the “but for” test.  In the most basic terms, a driver has to exhibit some level of carelessness.  From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“.  If the answer is yes then the careless party must be found, at least partially, to blame for the accident.  This week the BC Court of Appeal discussed this area of law.

In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane.  It was dark and the Defendant remained stopped for a period of time.  The speed limit was 90 kilometers per hour.  He did not activate his brake lights or emergency flashers.  The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.

The Plaintiff sued for damages.  His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash.  (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded.  The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault.  In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:

[16]         I now turn to the legal test to establish causation.  In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test.  The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  At para. 21 of Resurfice, the Chief Justice said:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

[17]         The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.

[18]         In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms.

[19]         The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:

“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence.  It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event.  As I have explained, these implications are not correct - every event has multiple historical factual causes.  The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36.  It suggests a limit on the scope of liability.  There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy.  It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112, [1990] 3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.

[20]         The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test.  The judge must have employed a last clear chance analysis when he used the term “proximate”.  That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him.  The judge found that the defendant was negligent.  Indeed he could hardly have found otherwise.  The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.

[21]         The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati, [1996] 3 S.C.R. 458).  There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability.  In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury.  The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”.  I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.

[22]         In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent.  That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23).  The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis.  If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.

[23]         This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307, [1997] B.C.J. No. 350).  Normally a sudden stop does not create an unreasonable risk of harm.  However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.

[24]         I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.

If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”.  From there you need to ask “but for that wrongful act, the injury would not have occurred?“.  If the answer is yes then you have a theory on which to advance your case.

Further to my previous posts on this topic, the law is clear that a motorist who is rear-ended by another can be found at fault.  Such an outcome is somewhat unusual but given the right circumstances it can occur.  Reasons for judgement were released to today demonstrating this.

In today’s case (Cue v. Breitkreuz) the Plaintiff’s vehicle was involved in a rear-end collision.   He testified that he was rear-ended by the Defendant while he was stopped waiting to make a left hand turn.  An independent witness contradicted this account and testified that “the Plaintiff’s car accelerated, moved in front of the (defendant’s) truck, then slammed on the brakes” leaving the defendant with “(no) chance to stop before sliding into the plaintiff’s car”.

Mr. Justice Smith preferred the independent witness’ evidence over the Plaintiff’s and found the front motorist entirely at fault.  In reaching this conclusion the Court gave the following brief but useful summary of the law:

[15] Where there has been a rear-end collision, the onus shifts to the following driver to show that he or she was not at fault:  Robbie v. King, 2003 BCSC 1553 at para. 13. It is also the case that the driver of a following vehicle must allow a sufficient distance to stop safely in the event of a sudden or unanticipated stop by the vehicles ahead:  Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002 BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

[16] On the evidence before me in this case, I find that the defendant has discharged the onus upon him. I find that the plaintiff, by changing lanes in the manner that he did, created the situation in which the defendant did not have a safe stopping distance behind the plaintiff’s vehicle. Had the plaintiff not stopped, the defendant would have had the opportunity to slow down and allow the distance between them to increase. But when the plaintiff stopped immediately following the lane change, the defendant had no chance to avoid the collision. The defendant had no reason, in the moments leading up to the accident, to anticipate the plaintiff’s lane change and stop.

Usually when a driver rear-ends another vehicle that driver is at fault.  However, this is not always the case and reasons for judgement were released today by the BC Court of Appeal addressing this area of law.

In today’s case (Singleton v. Morris) the Plaintiff was involved in a rear end collison in 2005.  She sued the owner and driver of the vehicle that rear-ended her claiming negligence.  The driver of the rear vehicle gave evidence that the collision happened not due to carelessness, but as a result of an unexpected slippery substance on the road (perhaps brake fluid) and this caused her to lose control and collide with the Plaintiff vehicle.  This evidence was accepted and the Plaintiff’s claim was dismissed by the trial court.

The Plaintiff appealed the finding arguing that the trial judge was wrong.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court discussed the permitted inferences of negligence in rear end crashes cases and the burden of proof.  The highlights of the Courts discussion were as follows:

[32] The burden of proof in cases of negligence is set out in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424. There, Mr. Justice Major stated that the maxim of res ipsa loquitur should be treated as expired. He said:

27        It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.  After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.  [Emphasis added.]

[33] Mr. Justice Major’s statement sets out the general approach in negligence cases.  That is, the trier of fact should weigh both the circumstantial evidence and the direct evidence, where available, in determining whether the plaintiff has established a prima facie case of negligence.  In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case.  Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.

[34] Importantly, as stated by this court in Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318 at para. 10:

… The legal burden of proof, of course, remains on the plaintiff throughout.

[35] Here, because the plaintiff failed to establish that the defendant was driving at an excessive speed, there was no direct evidence of negligence on the part of the defendant.  Therefore, the plaintiff was forced to rely on circumstantial evidence and sought to establish an inference of negligence because the accident was a rear-end collision.

[36] Madam Justice Newbury examined the drawing of such inferences and the rebutting of them through the defence of explanation in Nason v. Nunes, 2008 BCCA 203.  InNason, a car had gone off the road. Newbury J.A. said:

[14]   … This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated … such an inference will be “highly dependent on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”  [Emphasis in original.]

[37] In Fontaine, Mr. Justice Major applied the law relating to such inferences and the defence of explanation to the facts of the case before him, stating:

33        If an inference of negligence might be drawn in these circumstances, it would be modest.  The trial judge found that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on Loewen’s part.  Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[38] Thus, in cases such as this, the trial judge may – but is not required to – draw an inference of negligence from the fact there was a rear-end collision.  The defence, however, may attempt to rebut such inferences through the defence of explanation.  A defence of explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.) is an explanation of how an accident may have occurred without the defendant’s negligence.  The defendant does not bear the onus of proving how the accident did happen.  The trial judge drew an inference of negligence in this case.  She said, “In this case, given that this was a rear-end collision in which the truck was properly stopped and was there to be seen, there is a prima facie case of negligence.”  Further, the trial judge correctly noted that Mrs. Morris “has to advance an explanation as to how the collision may have occurred without negligence on her part.”

[39] Here, the inference of negligence was, as the trial judge correctly held, adequately explained.  The plaintiff had failed to establish that Mrs. Morris was driving at an excessive speed or braked too late.  The trial judge accepted the defendant’s explanation of the presence of the oily substance on the road.  The explanation was “adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.”  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[40] I would dismiss the appeal.

(Please not the case discussed in the below post was overturned by the BC Court of Appeal who ordered a new trial.  You can read the BCCA decision by clicking here)

While unusual the answer is yes.  Reasons for judgement were released today discussing this area of the law.

In today’s case (Skinner v. Guo) the Plaintiff was involved in a 2006 BC Car Crash.  The Plaintiff was driving on Highway 1 when he rear-ended the Defendant’s vehicle which was stationary in the Plaintiff’s lane of travel.  The Defendant did not give any evidence at trial although it appears the Defendant stopped because he struck a coyote.  Given the Defendant’s lack of explanation for being stopped in a travelled portion of the roadway the Court found that he was in violation of s. 187 of the Motor Vehicle Act.

The Plaintiff argued that the Defendant was at fault for the collision for stopping his vehicle and failing to activate his emergency flashers.  Mr. Justice Harvey disagreed and found the Plaintiff 100% at fault for failing to see a stationary vehicle that was there to be seen.  Before dismissing the case Mr. Harvey said the following with respect to fault when a motorist rear ends another in British Columbia:

[15] All of the cases referred to me by counsel note that there is a high onus on a following driver, as stated in Molson v. Squamish Transfer Ltd. (1969), 7 D.L.R. (3d) 553 (B.C.S.C.).  One principle to be extracted from the rear‑end cases is that when one car runs into another from behind, the onus is on the driver of the rear car to show that the collision was not occasioned by his fault.  However, each case must be decided upon its facts, and I have been referred to cases where substantial liability has been imposed upon the front driver and others where the following driver has been assessed one hundred percent of the claim.  I do not find this case similar to the authorities referred to me by counsel for the plaintiff, which include McMillan v. Siemens, [1994] B.C.J. No. 2546 (S.C.); Lloyd v. Fox (1991), 57 B.C.L.R. (2d) 332 (C.A.); and W.K. Enterprises Ltd. v. Stetar, [1976] B.C.J. No. 484 (S.C.).  In each of those cases the hazard created by the negligence of the driver who had stopped his vehicle was not apparent for either reasons of weather conditions or the design of the roadway until a point where the plaintiff’s vehicle was much closer than was the case here.

[16] Baker v. Cade, [1999] B.C.J. No. 239 (S.C.), has facts which are most analogous to the case at bar.  There, the collision involved two cars and a motorcycle.  The first car stopped in the middle of a bridge, and the car immediately behind that car came to a stop as well, without activating emergency flashers.  The plaintiffs were following behind on a motorcycle.  The stopped vehicles were approximately 800 feet away when the plaintiff crested the bridge and had a view of what was happening.  The plaintiffs were unable to stop the motorcycle and collided with the rear of the second vehicle, suffering significant injury.  The role of the driver of the second vehicle in that situation is analogous to that of the defendant in this case.  While Drost J. concluded that the driver of the second vehicle was negligent, he held that his negligence was not the proximate cause of the accident.  I reach the same conclusion here.

[17] The only distinguishing factor in this case is that the accident occurred at night.  However, I find as a fact that the area was well lit and the sight line of the plaintiff would have allowed him to the defendant’s stationary vehicle approximately a kilometre away.  Indeed, the plaintiff says he did see the defendant’s vehicle, but that he did not determine until it was too late that it was stopped.  Despite his description of the traffic, he took no evasive manoeuvres to avoid striking the rear of the defendant’s vehicle.  He believes he was some 20 to 30 yards away when he slammed on the brakes.

[18] Accordingly, the action is dismissed.

For more on this area of the law click here to read a case summary where a motorist was found partially at fault for being rear-ended.