ICBC Law

BC Injury Law and ICBC Claims Blog

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

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘section 180 motor vehicle act’

Two Jaywalking Injury Claims Dismissed by the BC Supreme Court

May 23rd, 2013

Adding to this site’s archived case summaries of collisions invovling jaywalking pedestrians, two separate cases involving such a collision recently were dismissed at trial by the BC Supreme Court.

In the first case (Talbot v. Kijanowska) the Plaintiff, who emerged from an alleyway, was attempting to cross a street without the right of way.  The Defendant motorist did not see him in time to take evasive action.  The Plaintiff’s claim was ultimately dismissed with Mr. Justice Greyell providing the following reasons:

[34]         It is acknowledged by Mr. Talbot that he was not crossing the street at a crosswalk, marked or unmarked, at the time he struck or was struck by Ms. Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a common law duty on a person in Mr. Talbot’s position to take care of his own safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309, 48 M.V.R. (3d) 56 (S.C.) at para. 17….

38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.

[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.

Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.

[40]         The plaintiff’s action is dismissed. In the ordinary course the defendant would be entitled to costs. If there are matters of which I am unaware counsel may speak to the issue.

In the second case, (Pinsent v. Brown) the Plaintiff pedestrian was injured when attempting to cross a street in Vancouver in dark and rainy conditions.  She was not crossing at an intersection or in a crosswalk and “emerged onto the roadway from between parked cars”.  In finding the Plaintiff solely at fault for the resulting collision Madam Justice Ross provided the following reasons:

[32]         The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,…

[34]         The mere fact that the driver did not see the pedestrian before striking him, is not in itself, sufficient to establish that the driver kept an inadequate lookout: Plett v. ICBC (1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle so that he will be able to avoid striking a pedestrian who is crossing his path in a reasonable manner: Funk v. Carter, 2004 BCSC 866….

[52]         Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.

[53]         In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.

[54]         The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.

[55]         I find that Ms. Brown was not negligent in the manner she operated her vehicle. Ms. Pinsent was the sole cause of this unfortunate accident. In the result the action is dismissed.


Jaywalking Pedestrian Found 75% at Fault For Collision

October 5th, 2012

Adding to this site’s archived caselaw addressing fault for collisions involving jaywalking pedestrians, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an impact.

In last week’c case (Sandhu v. John Doe) the Plaintiff was attempting to cross a four lane road way.  She was not crossing in a designated crosswalk.  The vehicles in the curb land came to a stop and the lead motorist motioned for her to cross.  As she proceeded into the second lane she was struck by the Defendant motorist.

The Plaintiff sued the motorist that struck her and also the motorist that signalled for her to cross.  The Court dismissed the claims against the latter motorist and further found that both the Plaintiff and the motorist that struck her were at fault for the impact.  In assessing 75% of the blame on the Plaintiff Mr. Justice Bowden provided the following reasons:

[18]         In my view, as the plaintiff was not crossing the road in a crosswalk, the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the same time, Ahmed was required to exercise due care to avoid colliding with a pedestrian on the highway.

[19]         I find that the plaintiff was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which the defendant Ahmed was travelling, without looking to determine if a vehicle was approaching before entering that lane.

[20]         The defendant Ahmed was also negligent in passing two stopped vehicles when the possibility of a pedestrian attempting to cross was reasonably apparent, even if he believed that the vehicles were also intending to turn into the mall after they stopped.

[21]         In my view, no liability attaches to John Doe. There is no evidence that the plaintiff made any attempt to locate John Doe. Even if he had been located, the mere act of indicating to the plaintiff to cross in front of his vehicle, in my view, would not attract liability nor relieve the plaintiff of her duty of care…

[25]         Considering the conduct of the plaintiff and the defendant Ahmed and the surrounding circumstances, I have concluded that a reasonable apportionment of liability is 25% to the defendant Ahmed and 75% to the plaintiff.


IPod Not Deemed "A Meaningful Factor" In Pedestrian Collision

September 28th, 2012

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the issue of fault for a collision involving a pedestrian who was listening to music on an iPod when he was struck by a transit bus.

In last week’s case (Whelan v. BC Transit) the Plaintiff was injured when a BC Transit Bus ran over his foot.  The parties agreed on the value of the claim but each argued the other was to blame.  The trial proceeded on the issue of fault.

The Plaintiff “was listening to music on his iPod by means of its earbuds” as he was walking on the sidewalk.  He decided to step briefly onto the curb lane of the street in order to walk around other pedestrians.  As he did so he was struck from behind by a BC Transit bus which was leaving the curbside moving forward to merge with traffic.  The Plaintiff “did not hear the bus before it struck him“.

The Court ultimately found both parties were to blame for the impact.  The Plaintiff for stepping out into the street when it was unsafe to do so and without the right of way, the Defendant for failing to see the Plaintiff who was there to be seen.  The Court found the Plaintiff more culpable allocating 60% of the blame to him.  Interestingly the Court did not consider his listening to music and failing to hear the bus to be a significant factor.  In reaching the split of fault Mr. Justice Schultes provided the following reasons:

[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk.

[73]          I do not find his use of an iPod to be a meaningful factor in this analysis though. His negligent decision to step onto the road was caused by impatience and a faulty assumption about the actions of the bus driver, and not by any reduction in his ability to hear his surrounding environment…

[75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.


Pedestrian Found 30% At fault For Crash for "Cutting the Corner"

December 12th, 2011

(Update February 5, 2012 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)

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 12th. 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.


$200,000 Non-Pecuniary Damage Assessment in Jay Walking Collision

September 26th, 2011

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.