ICBC Law

The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.

In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.

The Court heard no evidence as to how the Plaintiff came to fall out.   At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box.  The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected.  The Plaintiff appealed this finding arguing there was no evidence to support this conclusion.  The BC Court of Appeal agreed and placed 100% of the blame on the motorist.  In doing so the Court provided the following reasons:

[14] A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches [1956] S.C.R. 787 at 793).

[15] In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck - whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.

[16] In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.

[17] I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.

Important reasons for judgement were released last month by the BC Court of Appeal making it clear that insurance brokers can be sued for professional negligence if they fail to properly advise clients of the limits of their insurance policies.

In last month’s case (Beck v. Johnston, Maier Insurance Agencies Ltd.) the Plaintiff’s home was intentionally burned down by her husband in a tragic murder/suicide.  The home was insured however the policy had an exclusion for losses that occurred as a result of “intentional acts by named insureds“.

The Plaintiff’s estate sued the insurance broker claiming they were negligent in failing to discuss this exclusion when the policy was renewed (which last occurred after the Plaintiff split up with her husband).  The claim succeeded at trial.  The insurance brokers appealed arguing the claim should be dismissed as this damage was not forseeable.  The BC Court of Appeal dismissed the appeal and in doing so provided the following reasons which should ring as a caution to insurance brokers when selling policies of insurance:

[17] Members of the public purchase insurance to protect themselves and their property from unforeseen events. Policies of homeowner’s insurance, rented dwelling insurance and tenant’s insurance are invariably written by insurers, who describe the coverage that they are prepared to provide and the exceptions to that coverage in the policies they write. They then quote the premium that they require to provide the coverage….

[21] Both Mr. Sache, an insurance broker retained by the appellant and Mr. Pat Anderson, a licensed insurance broker retained by the respondent agreed that it is standard practice for brokers to explain the intentional act exclusion in a homeowner’s policy to a customer when insurance is first placed for that customer….

[25] While Ms. Beck may not have had any knowledge or belief that Mr. Beck intended to harm the home at the time her insurance coverage was renewed in July of 2007, such knowledge was not the issue. The issue was whether her insurance broker ought to have discussed her insurance needs with her when it was clear that she and her husband had separated….

[27] The summary trial judge was bound to accept, as she did, the uncontradicted evidence before her of the standard of care to be expected on an insurance broker. In areas where the courts lack expertise with respect to a particular field of endeavour, it is necessary to rely on expert evidence of standard practice of those in that field of endeavour in order to determine whether the requisite duty of care has been met. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 39 Sopinka J. referred with approval to the following statement by Professor Fleming in The Law of Torts(7th ed. 1987) at p. 109:

Conformity with general practice, on the other hand, usually dispels a charge of negligence. It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a “test case”. Finally, it underlines the need for caution against passing too cavalierly upon the conduct and decision of experts.

[28] It was unnecessary for the respondent to prove that Ms. Beck foresaw that Mr. Beck Sr. represented a “real” or an actual risk of intentionally damaging the home. On the evidence, Ms. Beck’s change in circumstances presented a foreseeable new risk to be considered vis a vis her insurance needs…

[33] The summary trial judge was clearly of the view that, when a renewal of insurance coverage is required, the broker similarly has a duty to provide relevant information about the types of coverage available to the client, to meet any change in needs that the client may have as a result of any changes in his or her circumstances of which the broker is or should be aware. There was ample evidence upon which the trial judge could make that finding, and no basis upon which this Court can interfere with it.

Reasons for judgement were released today by the BC Court of Appeal discussing the standard of care for Occupier’s Liability lawsuits in BC.

In today’s case (Charlie v. Canada Safeway Limited) the Plaintiff slipped and fell near a display of flowers while shopping at Safeway in Duncan, BC.  The flowers were kept in water and when customers picked up the flowers for purchase they sometimes “could drip (water) on the floor”.  She was injured and sued for damages.

During her fall the Plaintiff knocked over one of the buckets of flowers spilling a considerable amount of water on the floor.  The Plaintiff could not offer direct evidence that dripped water made her fall but inferred that this was the cause of her fall.  At trial the Court refused to make this inference and dismissed the lawsuit.  The BC Court of Appeal dismissed the appeal finding there was no error in law in the Court refusing to draw the same inference the Plaintiff made.

The Plaintiff went further and argued that “there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk.”

The Court of Appeal rejected this argument and in doing so made it clear that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  The Court provided the following reasons:

[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

(Update November 2, 2011 - Note the below case was modified by the BC Court of Appeal with a finding that the motorist should be 100% at fault due to the absence of any evidence of contributory negligence)

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, discussing the issue of fault when a passenger riding in the box of a truck is ejected and injured.

In today’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.

Madam Justice Beames determined that the Plaintiff rose from a seated position in the course of the trip and then was ejected.  The court held that both the Plaintiff and the Defendant were at fault with the Defendant shouldering most of the blame.  Madam Justice Beames provided the following reasons:

[31] There is no question that the defendant was responsible for allowing the plaintiff and the other children to ride in the box of his truck. He did not have to allow the plaintiff to get into the box of the truck, and he had enough seats and seat belts, I find, inside the truck to accommodate all of his passengers, including the plaintiff…

[34] I find the defendant owed a duty of care to the plaintiff and that he breached that duty and failed to exercise a standard of care of a reasonable person in the same circumstances. That negligence was clearly causally connected to what happened to the plaintiff. The plaintiff would not have been injured had the defendant not allowed him to ride unrestrained in the box of his truck. It was foreseeable, in my view, that what occurred would or could occur.

[35] I turn now to the issue of contributory negligence on the part of the plaintiff…

[44] In the circumstances of this case, I would not find that the plaintiff was contributorily negligent simply by riding in the back, or the box, of the truck. He was allowed to be there by an elder from the Sun Dance ceremony which featured community, trust and respect for elders. However, I do find that the plaintiff was, by getting up from a seated position on the floor of the box in a moving truck, negligent in fact.

[45] Consequently, the defendant has proved contributory negligence…

[53] In all of the circumstances of this case, I apportion fault between them as follows: the plaintiff, 25 percent; the defendant, 75 percent.

As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.

In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.

The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

…

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident.  When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances.  In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.

We all know that children can be unpredictable.  As such motorists have to take special precaution when driving by pedestrian children.  The standard of what is safe will be stricter in these situations and reasons for judgement were released this week discussing this legal principle.

In this week’s case (Johnson v. Eyre) the 7 year old Plaintiff, who was riding his bike, was struck by the Defendant’s motor vehicle and sustained injuries.  Ultimately the lawsuit was dismissed because the Court found that “(the Defendant) simply could not avoid striking (the Plaintiff)…The collision occurred because the youths turned…into the path of the (defendant) vehicle…(the Defendant) took appropriate evasive action in the little time he had to react.”

Before dismissing the claim, however, Mr. Justice Greyell did a good job summarizing the standard of care motorists should exercise when driving by children.  The below quote is a useful summary of this area of personal injury law:

[15] The plaintiff relies on the following passage in Bourne v. Anderson, 27 M.V.R. (3d) 63 where Hood J. said at para 55:

55        In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

This passage was cited with approval by the Court of Appeal in Hixon v. Roberts, 2004 BCCA 335.