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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

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 ‘Visibility’

Stationary Vehicle Partly At Fault for Rear End Crash For Failing to Engage Hazard Lights

July 30th, 2013

Last week the BC Court of Appeal addressed fault for a crash between an impaired driver and a stationary vehicle.  In last week’s case (Hansen v. Sulyma)  the stationary vehicle had run out of gas and pulled off the roadway.   Shortly thereafter another motorist, who had been drinking in excess at a nearby pub, lost control and drove into the stationary vehicle.  While the Court found the impaired driver mostly at fault the driver of the stationary vehicle was also found party to blame.  In reaching this conclusion the BC Court of Appeal provided the following reasons:

[5]             When the Honda was a couple of kilometres away from the terminal, its engine “spluttered” and then stopped.  Mr. Sulyma steered it off the paved portion of the road and onto the shoulder.  He testified that they were stopped on a straight stretch.  He telephoned one of his sisters who lived on the Island and she agreed to bring gas to where the Honda was stranded.  Ms. Hansen phoned home to tell her son that she and Mr. Sulyma would not be back to Powell River until the next day.

[6]             While they were stopped, Ms. Hansen testified that she asked Mr. Sulyma to put on the car’s “flashers” or hazard lights, but he told her that was “silly”.  The lights were left off.  After a few minutes, Mr. Sulyma tried the ignition again and the car started.  He pulled out onto the road and they were able to drive a short distance, but the engine then spluttered and died again.  The trial judge accepted the testimony of both Mr. Sulyma and Ms. Hansen that he steered the vehicle onto the shoulder such that it was parked “entirely on the shoulder of the road, and no part of the vehicle was located on the paved portion of the roadway.”  (Para. 31.)  Although parts of Mr. Leprieur’s statements to the police were to the contrary, other portions of his statements led the trial judge to infer that he had had no memory of where the Honda had been parked.  The trial judge found that the car was “at what counsel have referred to as the ‘apex’ or middle point of a left-turning (for northbound traffic) curve in the highway.”  (Para. 35.)..

[17]         With respect to Mr. Sulyma, the trial judge was satisfied he had failed to meet the applicable standard of care by failing to activate the hazard lights on Ms. Hansen’s vehicle or otherwise illuminating lights that would have made the Honda more easily noticeable to drivers.  As for causation, the Court found this failure “caused or contributed to the collision” and that had the lights been on, Mr. Leprieur would likely have been alerted to the presence of the Honda earlier than he was.  The trial Judge continued:

… Even if Mr. Leprieur’s ability to react was slowed by the excessive amount of alcohol he had consumed and he was being inattentive, flashing lights would probably have caught his attention before the vehicle itself became visible.  An earlier warning of the presence of the Hansen vehicle would, I conclude, have allowed Mr. Leprieur time to stop accelerating or possibly even slow his vehicle, and thereby reduce the force of the impact and the severity of Ms. Hansen’s injuries.  [At para. 78; emphasis added.]

 …

[30]         Moving on to the question of standard of care, Ms. Wright contends that the standard imposed by the trial judge on Mr. Sulyma was “too high in law”.  She emphasizes that the Hansen car was parked off the paved portion of the road.  Can it be correct, she asks, to require a person in Mr. Sulyma’s position to have activated the hazard lights in order to avoid the risk posed by a driver who is drunk, speeding, and accelerating on a trajectory off onto the shoulder?  Ms. Wright observes that this is the first case of which she is aware in which the driver of a vehicle that is parked completely off the road has been held to be negligent for failing to put on his or her hazard lights.

[31]         Mr. Cowper responds ? correctly in my view ? that Ms. Wright’s objections are to the trial judge’s findings of fact rather than to any legal principle she applied.  The question in every case is whether the person has taken reasonable care in all the circumstances.  There is no rule of law to the effect that any driver who parks his car off the road may rest assured that he or she need not activate the vehicle’s hazard lights.  It all depends on the circumstances.  In this case, although the Honda was off the road, it was a dark and misty (if not foggy) night, the road was not illuminated, the car was in the apex of a curve, and Mr. Sulyma and Ms. Hansen were sitting in the vehicle.  As the Court stated in Thornhill v. Martineau (1987) 39 C.C.L.T 293 (B.C.S.C.), even though a vehicle is legally parked, it may create a danger which ought to be foreseen by its driver.

[32]         The trial judge in the case at bar implicitly concluded that it was reasonably foreseeable that a driver coming around the curve would swing wide ? a conclusion of fact that in my view has not been shown to be clearly wrong.  (It was not necessary in this regard to show that Mr. Sulyma ought to have foreseen that an intoxicated driver would speed around the curve.)  I note that this case is substantially different from that inCawson v. Quandt 2001 BCCA 210, where this court reversed a trial judge’s finding that a driver who had encountered deer on the road and, while remaining in the lane of traffic, had stopped his truck to let them cross, had been negligent in failing to turn on his hazard lights.  The trial judge had imposed 15% liability on the defendant for this reason, but the Court of Appeal allowed his appeal on the basis that the trial judge had imposed “an unreasonable standard imposing almost a warranty upon the defendant.”  (Para. 4.)  For purposes of the case at bar, it is important to note that the defendant in Cawson had his headlights and running lights on at all times (see para. 49 of the trial judge’s reasons; [1999] B.C.J. No. 1341).

[33]         In my opinion, this ground of appeal must fail.


$125,000 Non-Pecuniary Damage Assessment for TBI – Adverse Inference Discussed

August 17th, 2011

Update March 21, 2014 – the Liability findings in the below case were upheld today by the  BC Court of Appeal

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Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.

In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.

The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:

 

 

 

 

 

 

 

 

 

 

[134]Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji’s left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.

[135]Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…

 

 

 

 

 

 

 

 

 

 

[270]Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271]In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

 

 

 

 

 

 

 

 

 

 

[240]In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.

[241]However, where, as here, counsel has assumed control of medical management of a plaintiff’s injuries, the circumstances are not ordinary.

[242]Dr. Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.

[243]Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244]In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

[245]Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr. Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.