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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 ‘U-Turn’

Motorist at Fault For Collision With Scooter During U-Turn

March 3rd, 2015

Reasons for judgement were released today addressing fault for a collision involving a vehicle conducting a U-turn.

In today’s case (Longford v. Tempesta) the Plaintiff was operating a scooter and was travelling behind the Defendant’s vehicle.  The Defendant “put on his brakes aggressively” and the Plaintiff then stopped.  The Defendant then “went to the right parking lane and stopped, aggressively applying his brakes again, and then hesitated.“.  The Plaintiff then proceeded to pass the Defendant who then commenced a U-turn and the vehicles collided.

In finding the Defendant 100% responsible Madam Justice Hyslop provided the following reasons:

[34]        I find that the plaintiff could not have anticipated that the defendant, after briefly stopping, would then turn in front of her. Nor do I find that she had enough time to observe the defendant’s actions and avoid the accident.

[35]        The plaintiff did not state that the defendant was driving erratically when he stopped aggressively in front of her and when he parked. The defendant in his written argument, states:

14.       The Plaintiff in her statement seems to have assumed that the Defendant had missed his turn, was driving erratically and ought to have anticipated some other erratic move from the Defendant and driven accordingly.

15.       Further, the physical evidence of where the collision took place is more consistent with the Defendant’s version of events than the Plaintiff’s. Impact occurred very near the centre of the road when the Defendant’s vehicle had almost left the west bound lane. This would mean for the Plaintiff’s version to be correct the Defendant would had to have started from a complete stop accelerated through a turn and almost completed it before the Plaintiff arrived at the impact site.

[36]        This does not coincide with the defendant’s evidence that he was three quarters of the way in his driveway, having crossed the eastbound lane.

[37]        In Rai v. Fowler, 2007 BCSC 1678, Madam Justice Holmes stated:

[34]      In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.) at 195-6, Madam Justice Southin noted that drivers are entitled to assume that other drivers will obey the rules of the road, and are required to anticipate, in other drivers, “only those follies which according to the teachings of experience commonly occur”. By implication, and as explained in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 461 from which Southin J.A. quoted, a driver may bear liability if he or she became aware of another driver’s disregard of the law, or by the exercise of reasonable care should have become aware, and unreasonably failed to avoid the accident that followed from that disregard.

[38]        When the defendant stopped aggressively in front of the plaintiff, she slowed down and was able to stop. I find there was no erratic driving on the part of the defendant such that she could anticipate that the defendant would perform a U-turn in front of her.

[39]        I conclude that the defendant stopped as he realized that he had overshot the driveway to his workplace. I find he then went to the right, stopped again as to park, intending to go into the driveway and, in doing so, crossed the path of the plaintiff on her scooter. At no time did the defendant observe the scooter and he should have. I find that the plaintiff has met the burden of proof and that the defendant was negligent when he turned from where he was parked and into the path of the plaintiff driving her scooter. The defendant is 100% responsible for the accident. The defendant’s actions were negligent.


More on Collisions Involving Emergency Vehicles

July 31st, 2013

 

UPDATE June 5, 2014 – This decision was overturned on appeal with the Defendant being found fully at fault

____________

As previously discussed, when an emergency vehicle is responding to a call and is involved in a collision fault does not automatically rest with the other vehicle.   All of the circumstances surrounding the collision must be examined.  Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing this area of law.

In last week’s case (Maddex . Sigouin) the Defendant was travelling a few car lengths behind the Plaintiff police officer.  The Plaintiff detected a speeding oncoming vehicle, activated his lights, and attempted a U-Turn at the approaching intersection.   To do so he had to cut across from the left hand lane in which he was travelling, through the designated left had turn lane and into his turn.  The Defendant did not have time to react safely, hit his brakes and also turned into the left hand turn lane in the hopes of avoiding contact.  Ultimately the Court found both motorists equally responsible for the crash.  In reaching this decision Mr. Justice Williams provided the following reasons:

[43]         It is my conclusion that Mr. Sigouin was not paying sufficient attention as he was driving and that he was positioned too close behind the police car, taking into account the speed and the limited maneuverability of his vehicle. By the time he recognized the necessity to react to the police car slowing in his lane, it was too late to safely slow down behind that vehicle. As a result, he was forced into an emergency maneuver which entailed passing the police vehicle. He did not believe it was safe to pass on the right and so he elected to pass on the left which necessitated him moving into the left-turn bay to get past the police car. It is clear that he did not see the flashing emergency lights and react to them in a timely and responsive way. My conclusion that he was not paying sufficient attention is buttressed by the fact that the vehicle he evidently failed to notice was a prominently marked police car displaying flashing lights. It is clear from the evidence that Mr. Sigouin knew that this was a police car because he testified that he made that observation a short time earlier and that he took measures to situate himself so that he was travelling behind that car.

[44]         As for the plaintiff, he initiated a turn, essentially a U-turn, from the number 2 lane. He satisfied himself that could be done safely with respect to the oncoming traffic. However, he appears not to have appreciated that his maneuver could not be safely executed because there was another vehicle following fairly close behind him.

[45]         Further, he initiated his maneuver not from the left-turn bay, but rather from the number 2 lane, a position which made it less apparent that he was going to turn left.

[46]         I accept that the plaintiff was displaying his emergency lights and it would be apparent to any other motorist that he was engaged in some sort of official emergent duties on the roadway. As I indicated earlier, other drivers are expected to yield to such vehicles.

[47]         However, it is abundantly clear from the legislation that displaying emergency equipment, whether lights or lights and siren, does not afford a shield of invincibility or absolute right. Even when an emergency vehicle has that equipment fully deployed, there is an overriding obligation on the operator of the emergency vehicle to ensure that any driving activity be conducted in a safe fashion vis-à-vis other persons on the roadway.

[48]         In the present case, that required the plaintiff to be sure that his U-turn could be executed in safety. He ought to have been aware of the fact that the defendant’s vehicle was following him, fairly close behind; he ought to have checked behind him.

[49]         It is evident that he did not do so.

[50]         In the circumstances, I find that both of the drivers, the plaintiff and the defendant Mr. Sigouin, were negligent in this collision.

[51]         As for allocation of fault, I find each to be similarly responsible, and I apportion liability equally, that is, 50 percent for each of them.


$140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

July 20th, 2011

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages following a 2005 motor vehicle collision.

In this week’s case (X v. Y) the Plaintiff was an RCMP officer.  (Supplemental reasons were released permitting the Plaintiff to identify himself by initials and to seal the Court file given the Plaintiff’s undercover work).  He was responding to an emergency call.  He was travelling on his motorcycle when he was struck by a truck driven by the Defendant who was in the course of making a U-turn.  Although fault was put at issue the Court found the defendant fully liable for the collision.

The Plaintiff suffered a burst fracture at the T-12 level which required surgical intervention.  He suffered from chronic pain following this and although he was able to return to police work he could only do so in a more administrative (as opposed to front-line) capacity.  In assessing non-pecuniary damages at $140,000 Madam Justice Dardi provided the following reasons:

[101] The plaintiff underwent surgery on July 21, 2005, after which Dr. D. explained to the plaintiff that he had a burst fracture in his vertebrae in the thoracolumbar region, and that metal rods, clamps and screws had been placed in the area to fuse the spine together. The plaintiff was fitted with a clamshell brace in order to stabilize his fused spine and prevent him from moving. He was not allowed to sit or stand up unless he was wearing this brace. He used a walker to manoeuvre around the hospital. After physiotherapy treatments, he was able to walk short distances, go to the bathroom, and get in and out of his hospital bed. He was released from the hospital on July 27, 2005…

[147] It is uncontroversial that the plaintiff suffered a serious injury in the accident: a fractured spine which required surgical fusion with metal instrumentation. The medical evidence clearly establishes that he is permanently disabled insofar as repetitive heavy bending, lifting and high-impact activities. He has an increased risk for the development or acceleration of degenerative disc disease and is at an increased susceptibility for reinjuring his back…

[163] In summary on this issue, I find that the plaintiff’s symptoms are genuine. He regularly experiences varying degrees of pain and significant stiffness, tightness, and spasms in his back. The cold exacerbates his symptoms. He will continue to experience episodic aggravation of his symptoms. He is at an increased risk of developing degenerative arthritis and he has an increased susceptibility for further injury to his back. He also faces the possibility of another surgery to remove the hardware in his back. He has reduced stamina and tires much more easily than prior to the collision. I also conclude that as the plaintiff ages, there is a substantial likelihood that his pain and discomfort will increase because he will not be able to maintain the same level of conditioning in the muscles supporting the fused area of his back.

[164] In terms of his career, the preponderance of the evidence clearly supports a finding that the plaintiff is not fit to perform the full range of policing duties. He must avoid impact activities and any risk of physical altercations with suspects, which restricts him from participation in front-line policing duties. He can no longer perform the duties of a motorcycle officer, nor is he able to pursue his ambition to join the ERT as an operational member…

[179] While the authorities are instructive, I do not propose to review them in detail, as each case turns on its own unique facts. Having reviewed all of the authorities provided by both counsel, and in considering the plaintiff’s particular circumstances, I conclude a fair and reasonable award for non-pecuniary damages is $140,000.


Driver Found 100% Liable for Accident Caused During Careless U-Turn

February 9th, 2010

Reasons for judgement were released today by Mr. Justice Smith of the BC Supreme Court considering the issue of fault in a collision between a pick-up truck and a motorcycle.

In today’s case (Dhah v. Harris) the Plaintiff was driving his motorcycle northbound on River Road in Delta, BC.  As he was coming into the second turn of an ‘s-curve’ a pick up truck was making a U-Turn from the Southbound lane into the Northbound lane.  Approaching this truck the motorcyclist hit his brakes ‘pretty hard’, dropped his bike and then slid into the side of the pickup truck.

The driver of the pick up truck did not see the Plaintiff and only realized he was there upon impact.  Similarly the motorcyclist did not appreciate that the pick up truck was there until it was too late to avoid the collision.  There was no evidence that the motorcyclist was speeding.

Both driver’s claimed the other was at fault.  After a 3 day trial Mr. Justice Smith found the pick-up truck driver 100% at fault.  In coming to this conclusion he provided the following summary and application of the law relating to U-Turn collisions:

[22] I find it highly unlikely that the defendant was moving at the extremely slow speed that that would imply. I find it more likely that the defendant was focussed on the tightness of the turn and the need to avoid the ditch across the road and that he failed to pay sufficient attention to situation to his right. Either he allowed more time than he now recalls to elapse between looking right and beginning his turn or he simply failed to notice the plaintiff who was there to be seen.

[23] Even if the defendant was turning at an extremely slow speed and the plaintiff was not there to be seen when the defendant began his turn, the plaintiff obviously would have come into view at some point before the collision. On the defendant’s own evidence, he did not look to his right again before he crossed the double solid centre line.

[24] It is a matter of common knowledge that roads are typically marked with a double solid line at locations where drivers will have reduced visibility of the road ahead. Sections 155 (1)(a) and 156 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, read as follows:

155  (1) Despite anything in this Part, if a highway is marked with

(a) a solid double line, the driver of a vehicle must drive it to the right of the line only,

156  If the driver of a vehicle is causing the vehicle to enter or leave a highway and the driver has ascertained that he or she might do so with safety and does so without unreasonably affecting the travel of another vehicle, the provisions of sections 151 and 155 are suspended with respect to the driver while the vehicle is entering or leaving the highway.

[25] Counsel for the defendant argues that the defendant reasonably concluded that he could safely enter the roadway and was leaving enough distance for oncoming vehicles to adjust to his presence. He argues that the effect of s. 156, in those circumstances, is that once the defendant entered the roadway, other drivers including the plaintiff were required to “accommodate” his position. In effect, counsel argues that if the defendant determined on reasonable grounds that he could safely cross the centre line, he acquired the right of way from the moment he entered the roadway.

[26] I cannot accept that submission. Section 155(1)(a), standing alone, contains an outright prohibition against crossing a double solid line. Section 156 does no more than provide limited exceptions to that absolute prohibition. It does not, in my view, diminish the duty to proceed with caution and it does not remove the right of way from another driver who is approaching in his or her proper lane.

[27] In any event, the question of whether or not the defendant was in violation of the statutory provision is not determinative. The question is whether the defendant kept a proper lookout and took appropriate care in the circumstances:  Dickie Estate v. Dickie and De Sousa (1991), 5 B.C.A.C. 37 (C.A.).

[28] In Dickie, the plaintiff was in the process of making a u-turn across a double solid line when he was struck by the defendant who was approaching at an excessively high speed. The Court of Appeal said at para. 12:

[The plaintiff] was engaging in a manoeuvre that was fraught with danger. He placed himself and the oncoming drivers in a position of risk. That being so, in my opinion, the law required of him a very high degree of care which would manifest itself in a sharp lookout before he crossed over the solid double line into the northbound lanes on the causeway. There was nothing to prohibit Dickie from seeing the oncoming De Sousa vehicle before his vehicle entered the northbound lanes of travel.

[29] I find that the defendant in this case was similarly “engaging in a manoeuvre that was fraught with danger”. He was making a left turn across a double solid line at a point where there was no intersection or driveway—at a point where oncoming drivers would have no reason to anticipate vehicles entering the roadway. He knew there was a curve to his right and knew or ought to have known that oncoming drivers might have limited visibility. The location and the nature of his manoeuvre required him to pay particular attention to the ditch across the road and I have found that he did so at the expense of being attentive to oncoming traffic.

[30] I also note that the Court in Dickie referred to the need for a sharp lookout before the driver crossed the centre line and before he entered the northbound lanes. In the circumstances of this case, it was not sufficient for the defendant to form an opinion about the safety of his manoeuvre before he entered the roadway. He says that he looked right at that point, but, in my view, his duty to keep a sharp lookout continued beyond that. He gave no evidence of having looked again before crossing the centre line; in my view, reasonable prudence required that he should have done so.

[31] Therefore, I find that the collision at issue was caused by the negligence of the defendant. The question then becomes whether there was any contributory negligence on the part of the plaintiff.

Mr. Justice Smith went on to give reasons explaining why he found the Plaintiff faultless for this crash holding that “the Plaintiff was entitled to proceed on the assumption that all other vehicles will do what it is their duty to do, namely observe the rules regulating traffic”.  Paragraphs 32-37 of the reasons for judgement are worth reviewing for the Court’s full discussion of why this Plaintiff was faultless.