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No Negligence For Crash Following Tree Suddenly Falling on Roadway

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, following a summary trial addressing negligence for a collision which occurred after a tree suddenly fell onto a roadway.
In this week’s case (Waters v. Mariash) the Plaintiff was involved in a collision after a cottonwood tree “suddenly fell across the the highway, cutting off both lanes“.  The Plaintiff was in the curb lane and struck the tree.  The Defendant was driving in the inside lane a few car lengths behind the Plaintiff.  He hit his brakes, his vehicle fishtailed and hit the tree and the Plaintiff’s vehicle.  The Plaintiff argued the Defendant was negligent but the Court disagreed dismissing the claim against him.  In doing so Madam Justice Humphries provided the following reasons:
[7] The defendant said on discovery that he was about 100-150 feet away from the tree when he started to brake.  He said he had switched into the fast lane to avoid the merging traffic from 176th Street, and had been travelling about 100 kph in a zone posted at that speed.  He reduced his speed to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he put on his engine brake and downshifted, breaking and beginning to slide a little on the wet pavement.  His tires were brand new Michelins…

[15] The accident occurred on a heavily travelled freeway near between Vancouver and Surrey.  While there is always the possibility of obstructions on such a highway, such as an animal or a child dashing out, it would be a very remote possibility in such a location.

[16] The accident was not the result of an obstruction such as branches or debris that one might expect in a wind storm and that would be there to be seen if one were travelling at a reasonable speed.  This accident occurred because a tree fell suddenly in front of both vehicles, blocking both lanes.  Both vehicles hit the tree.

[17] This is not similar to a situation where a driver is travelling in the winter and is expected to cope with unexpected icy patches (according to the Court of Appeal in Redlack v. Vekved, supra, but perhaps not inHearn v. Rowland, supra).  There is no evidence from which an inference could be drawn that the defendant in this case was driving beyond his own competence or that of his vehicle.  He was travelling below the speed limit.  He was faced with an unexpected event that could not be anticipated and he reacted reasonably.  The other options suggested by the plaintiff are not reasonable in these exigent circumstances, and may have been even more dangerous.

[18] According to Hearn v. Rowland, the defendant does bear a heavier onus if he asserts a defence of inevitable accident, but not if he seeks to show, as in this case, that the accident happened without any negligence on his part.  The onus is therefore on the plaintiff to show that the accident occurred as a result of the defendant’s negligence.  I am not persuaded that he has done so.

[19] The action against the defendant Mariash is dismissed, with costs at Scale B.

Driver Found Faultless For Collision With Child on Kick Scooter

Written by admin on . Posted in ICBC Liability (fault) Cases.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a motorist and a child on a scooter.
In last week’s case (Adams v. Zanatta) the Plaintiff, who was 9 years old at the time, suffered serious injuries in a 2006 collision.  The Plaintiff was travelling down a paved alley on a kick scooter.  At the same time the Defendant was operating a vehicle.  From the Defendant’s perspective the alley was obstructed from view because of a fence.   The Plaintiff came from the alley and entered the roadway without yielding the right of way.  A collision occurred.  The Plaintiff sued for damages arguing the Defendant should have been more cautious in the circumstances.  In dismissing the claim Madam Justice Brown provided the following reasons:

[17] I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard.  To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.

[18] I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.

[19] Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue.  He was aware of the obstructed view of the alley caused by the fence.  He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street.  Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour.  I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams.  At that point, Mr. Adams was just by the fence, coming out of the alley.  Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.

[20] The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent.  He was not traveling at an excessive speed for the circumstances.  I am satisfied that he was driving very slowly…

[25] Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour.  Mr. Adams was traveling quickly.  I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling.  Mr. Adams did not stop.  As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.

[26] As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side.  I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street.  In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.

[27] Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:

Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway.  Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably.  Mr. Justice Taylor said this:  “Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time” (my emphasis).  This is especially so in suburban areas.

[28] As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue.  As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty.  A reasonably careful driver would not have done more.

For more on the Standard of Care for motorists driving near children you can click here for the Supreme Court of Canada’s latest comments on this topic.

Clarity on ICBC Claims Challenging Increased Premiums vs Other Damages Following Collision

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Last week the BC Court of Appeal provided reasons for judgement clarifying in what circumstances a Plaintiff can have separate proceedings to address the issue of increased premiums following a collision versus a tort claim for other damages.  In short the Court held that a separate claim against ICBC for breach of contract or breach of statutory duty (to revisit their division of liability for insurance premium purposes) will not be a barrier to a separate tort claim for damages against the at fault motorist.  However, if a claim is filed against the tortfeasor for damages for increased premiums then a subsequent lawsuit for other damages would be estopped.
In last week’s case (Singh v. Mchatten) the Plaintiff sued another motorist for damages as a result of a motor vehicle collision.  The Plaintiff succeeded and was awarded damages for his deductible to be returned with a finding the Defendant was liable for the collision.  The Plaintiff then commenced a Supreme Court action for damages for personal injuries sustained in this crash.  The second action was dismissed by the Court of Appeal who found the action was estopped by virtue of the prior litigation.  In doing so the Court of Appeal provided the following reasons:

[19] The other flaw in the judge’s reasoning lies in her equating the respondent’s motivation in bringing the first action with a cause of action.  The causes of action in the two proceedings are undeniably the same:  damages for negligence.  In order to achieve the respondent’s goal of reversing ICBC’s fault determination and to recover the deductible, it was necessary for the respondent to sue the driver and owner/lessor and prove all the elements of negligence:  duty of care, standard of care, causation and loss.  He would have to repeat the same process in the Supreme Court action in order to recover personal injury damages.

[20] The respondent could have sued ICBC in Small Claims Court without attracting an estoppel defence in the later proceeding.  Those were the circumstances of Innes v. Bui, 2010 BCCA 322.

[21] In that case, Ms. Bui was unhappy with ICBC’s assignment of fault to her in a two-vehicle accident.  She sued ICBC in Small Claims to reverse the determination but decided to substitute Ms. Innes as the defendant.  The judge dismissed the action on the ground that he could not decide whose version of the accident to accept and since Ms. Bui bore the onus of proof on the balance of probabilities, she lost.  Then Ms. Innes sued Ms. Bui for damages in the Supreme Court and met a plea of res judicata which was upheld.  For this Court, Low J.A. reversed the decision and held that no liability determination was made in the first instance and so the doctrine did not apply.  He went on to observe:

[33]      In the Small Claims action, Ms. Innes was the wrong defendant.  She certainly was not a necessary defendant.  That action was not based in tort.  It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone.  That was an issue only between Ms. Bui and ICBC.  Ms. Innes apparently had no say about being substituted as the defendant in place of ICBC.  She had no control over the conduct of the action and she had no right of appeal independent of ICBC.  To say that the judgment given in the Small Claims action should have the effect of denying Ms. Innes the opportunity to present her own case stretches the equitable defence of res judicata to limits which, in the interests of justice, the defence should not be taken.  In that action, Ms. Innes did not have her day in court in any real sense.

[34]      On this basis I question whether it is correct to say that the parties, in reality, were the same in the two actions or that any consideration of privy arises.

[35]      In any event, if all the criteria for res judicata were met, I would think that this is a special circumstances case in which the doctrine should not be applied.

[22] In the present case, the judge purported to follow Innes v. Bui.  She concluded her reasons in this way:

[32]      The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell [(1993), 77 B.C.L.R. (2d) 211 (C.A.)].  Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33]      I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met.  If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff.  The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident.  It may be that the issue of liability is res judicata, but the application was not argued on that basis.  Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court.  In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court.  However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered.  To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[23] With respect, Innes v. Bui, is not similar to the case at bar but is its mirror opposite.  The Small Claims action in this case is not framed in terms of contract or breach of statutory duty against ICBC but in negligence against alleged tortfeasors…

[29] For these reasons, I would allow the appeal, set aside the order below, and dismiss the action.

You can click here to read my comments on the BC Court of Appeal’s previous decision of Innes v. Bui.

Left Hand Turner Found 100% At Fault for Intersection Crash on Fresh Amber

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Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing fault for an intersection crash involving a left hand turning vehicle and a through driver.
In the recent case (Andrews v. Mainster) the parties were driving in opposite direction on 16th Avenue in Vancouver, BC.  Ms. Andrews attempted to drive through the intersection. Of 16th and Fir.  The light turned amber as Ms. Andrews was about one car length away.  At the same time the motorist in the opposite lane of travel, who was already committed in the in the intersection, attempted to turn left resulting in collision.  Both parties sued each other.  In finding the turning motorist fully at fault Mr. Justice Masuhara provided the following reasons:

[30] It was dry and sunny at the time of the accident. Ms. Mainster had a clear and unobstructed view up West 16th to Granville Street. Ms. Andrews was not driving at an excessive speed on West 16th. Rather, she was driving at a normal speed approximately 45 km/h.

[31] I find that Ms. Mainster had proceeded into the intersection beyond the westside crosswalk and was waiting for traffic to pass through.

[32] More likely than not, Ms. Andrews was talking to Mr. Priolo just prior to the accident and that Ms. Andrews’ head was turned somewhat towards Mr. Priolo.

[33] I also find that Ms. Mainster turned left into the lane of oncoming traffic at the time the light for traffic on West 16th turned yellow. I also find at this same time Ms. Andrews’ car was within a car length of the intersection.  Ms. Andrews was the dominant driver relative to Ms. Mainster.

[34] I find that Ms. Andrews’ vehicle constituted an “immediate hazard”. I find that Ms. Mainster did not “yield” and that she did not become the dominant driver.

[35] I find that the collision occurred in the intersection closer to the crosswalk on the west side of the intersection than in the middle of the intersection.

[36] I note that Ms. Mainster agreed that if she would have looked eastward that she should have been able to see the red Mazda and could not explain why she did not see it. Ms. Mainster said that it was just a brief moment between the time the front of her car had just moved to turn and the collision. The first time she saw the Mazda was at the time of the collision. The theory that Ms. Andrews must have been travelling excessively and if seen initially would have been at the eastern end of West 16th (closer to Granville) has not been made out. As a result, Ms. Mainster in not seeing the Andrews’ car was not paying proper attention to oncoming traffic.  She did not meet the standard of care of a driver in her circumstances.

[37] Though, Ms. Andrews had her head somewhat turned toward Mr. Priolo in conversation as she was driving towards the intersection just before the collision, I do not find that she had taken her eyes off the road in front of her. I also do not find that Ms. Andrews had a duty to anticipate that Ms. Mainster would move into her lane when she did.  In any event, the proximity of the two vehicles was such that when Ms. Mainster moved into the lane of oncoming traffic that Ms. Andrews would have been unable to take sufficient action to avoid the collision.

[38] In the circumstances, I find Ms. Mainster to be entirely liable for the accident.

Defendant 75% at Fault for Crash Despite Being Rear Ended

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Although not common, motorists can be found partly or even wholly at fault after being involved in a rear-end collision.  Such a result was demonstrated in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Stanikzai v. Bola) the Plaintiff rear-ended the Defendant’s vehicle.  The Court was presented with competing versions of how the collision occurred but ultimately accepted the evidence of an independent witness who confirmed the Defendant “quickly” moved into the Plaintiff’s lane as we was attempting a U-turn in front the the Plaintiff’s vehicle.  In finding the Defendant 75% at fault for the resulting impact Mr. Justice Smith provided the following reasons:

] The only independent witness called was Mr. Tiwana, a truck driver who was behind the plaintiff in the left lane. Like the plaintiff, he described the defendant’s van moving into the right lane, then quickly attempting a u-turn in front of the plaintiff’s vehicle, leaving the plaintiff no time to react. However, one significant difference between the plaintiff’s evidence and that of Mr. Tiwana is that Mr. Tiwana said he saw the left turn signal on the defendant’s vehicle before what he described as the attempted u-turn.

[7] There is no doubt that when one vehicle hits another from behind, the onus is on the driver of the rear vehicle to show that the collision was not caused by his or her fault: Barrie v Marshall, 2010 BCSC 981. A driver following other vehicles is expected to keep his vehicle under sufficient control to be able to deal with sudden stopping or slowing of the vehicle in front: Pryndik v. Manju, 2001 BCSC 502.

[8] But while liability for a rear end collision usually rests entirely with the following driver, that is not an invariable result. For example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to be equally at fault for a rear end collision. In that case, the front driver stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the court found that the rear driver was travelling either too fast or too close behind to stop when confronted with the hazard.

[9] The plaintiff and the defendant in this case give conflicting evidence that cannot be reconciled. In attempting to determine what happened, on the balance of probabilities, I prefer the evidence of the only independent witness, Mr. Tiwana. He describes the defendant moving suddenly into the plaintiff’s lane in circumstances where the plaintiff did not have time to stop. That is not consistent with the defendant’s evidence of the lapse of time between her lane change and the collision and I do not accept her evidence on that point. I do accept her evidence that she had no reason to be making a u-turn and was not attempting one, but I find that her turn to the left on impact likely created the mistaken impression of a u-turn.

[10] Based on Mr. Tiwana’s description of the accident, I find that the defendant, in changing lanes, failed to notice or properly assess the position of other vehicles and failed to ensure that she had sufficient room to change lanes safely. Section 151(a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 reads:

151 A driver who is driving a vehicle on a laned roadway

(a) must not drive from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle,

[11] I therefore find that the accident was caused or contributed to by the negligence of the defendant. However, on the basis of Mr. Tiwana’s evidence, the plaintiff must also bear some responsibility because he failed to see the defendant’s turn signal. Although the defendant’s move was a sudden one, seeing her turn signal would likely have given the plaintiff an earlier opportunity to either apply his brakes or to at least use his horn to warn the defendant of his presence.

[12] Because it was the defendant who created the dangerous situation, I find that she must bear the greater share of blame and apportion liability 75 per cent to the defendant and 25 per cent to the plaintiff.

Supreme Court of Canada Confirms Heightened Standard of Care When Driving Near Children

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Last week the Supreme Court of Canada released reasons for judgement discussing the standard of care for motorists driving near children.
In last week’s case (Anapolis County District School Board v. Marshall) the Plaintiff, who was 4 years old at the time, suffered “catastrophic” injuries when struck by a school bus.  His case was dismissed at trial with a Jury finding the motorist was not negligent.  The Nova Scotia Court of Appeal ordered a new trial finding the Judge’s charge to the Jury was confusing.  The School Board appealed further and in a split decision the Supreme Court of Canada upheld the trial result finding the Judge’s charge to the Jury was appropriate.
The following passage was included in the Judge’s charge to the Jury addressing the standard of care when driving near children:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.  Justice Cromwell provided the following reasons:
The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms.  Looking at the charge as a whole, this, in my respectful view, did not occur.  The misdirection may have given rise to an injustice.  I would therefore dismiss the appeal.

Motorist with Right of Way Found 40% at Fault For Intersection Crash

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UPDATE – June 12, 2013 -the below decisions addressing liability was upheld by the BC Court of Appeal.  The matter was set back to the trial judge, however, because the BCCA concluded the trial judge made a palpable error when assessing damages)
_____________________________________________________________
As discussed earlier this week, having the right of way is only one factor which determines fault for a collision.  A motorist with the right of way still needs to maintain a proper lookout otherwise they can share fault for a collision.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, in the context of an intersection crash.
In this week’s case (Sangha v. Chen) the Plaintiff was driving northbound on Willow Street in Vancouver, BC.  As he entered an intersection the Defendant, who was faced with a stop sign, came through a side street resulting in a collision.

Although the Plaintiff had the right of way both motorists were found at fault.  In assessing fault at a 60/40 split Madam Justice Boyd provided the following reasons:

[34]In the case at bar, I am satisfied that Chen stopped at the stop sign, that she moved forward to check for northbound traffic and that, finding there was none, she began to move out into the intersection.  Unfortunately from that point forward she simply proceeded forward in her slow course across the intersection, without keeping any continuing lookout for oncoming northbound traffic.  Chen did not, therefore, become the dominant driver.  While she stopped and yielded to traffic, she failed to proceed with caution.  This was also a breach of her common law duty to other users of the highways because she clearly failed to meet the standard of care as set out by Lambert J.A. in Carich v. Cook: “care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime”.

[35]For his part, I am satisfied that the plaintiff was likely travelling over 30-40 kph, although perhaps still within the speed limit.  Contrary to his evidence, I find that at the last moment, he did (perhaps even unconsciously) see the defendant’s vehicle and did slam on the brakes momentarily (accounting for the initial jerking motion Dr. Temple experienced).  While he could not avoid hitting the defendant’s vehicle (which by this time was in his lane of traffic), his vehicle effectively came to a stop on impact, although rotating somewhat to the right in a counter-clockwise direction.

[36]While the plaintiff may have remained the dominant driver, he had a duty to exercise reasonable care even if those around him did not respect his dominant position.  He clearly did not exercise reasonable care as he failed to keep a proper lookout.  The fact the defendant proceeded slowly across the intersection and that the collision occurred on the far side of the intersection convince me he should have seen the plaintiff earlier.  Had he kept a proper lookout he would have seen her vehicle earlier than he did and thus could have applied his brakes to avoid the collision.  But he had not kept a proper lookout and the accident ensued.

[37]In determining the division of liability, the court is to consider the relative responsibilities of the parties for the accident: Salaam, para. 35-38.  This is not a case similar to Amador, Ryonand Salaam where one driver saw the other and made a decision to proceed in a certain manner, while the other driver failed to see them and keep clear.  Here, neither driver saw the other prior to impact when the circumstances are clear that they should have.  Liability must therefore be shared more evenly.  That being said, while both parties failed to keep a proper lookout, and failed to see what was there to be seen, the defendant, as the servient driver, had a higher standard of care and the plaintiff, to a certain extent, was permitted to expect servient drivers to respect his dominant position.  Thus the negligence of Chen contributed more to the accident than that of the plaintiff.

[38]In all the circumstances I find that the defendant is primarily liable for this collision.  In this case, I would divide liability 60% against the defendant and 40% against the plaintiff.

Driver 25% at Fault for Striking Jaywalking Pedestrian

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As previously discussed, having the right of way is not determinative of fault for a collision.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this in the context of a pedestrian crash.
In last week’s case (Murdoch v. Biggers) the Plaintiff was crossing Blanshard Street in a marked cross-walk.  She did so against a red light.  There were 3 oncoming through lanes of travel.  The vehicles in the first two lanes stopped for the jaywalking Plaintiff.  The vehicle in the third lane did not stop in time and collided with the Plaintiff resulting in a broken right leg.

The Court found that while the motorist had the right of way they shouldered some of the blame for failing to keep a proper lookout.  In assessing the Plaintiff 75% at fault and the Defendant 25% at fault Madam Justice Power provided the following reasons:
[33] In this case, I do not believe that the defendant exercised the appropriate standard of care to avoid breaching that duty. The drivers in vehicles in the two lanes to her right were able to observe and stop for the plaintiff, and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk was able to observe that something was happening in his rear-view mirror. In the circumstances, I find that the defendant failed to keep a proper lookout by failing to observe Ms. Murdoch’s entry into the crosswalk and by failing to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch. I find that if the defendant had in fact been keeping a sufficient look out, she would have been able to stop for Ms. Murdoch and avoid the collision…
[36] In all of the circumstances, I conclude that the 75% of the fault for the accident should be borne by the plaintiff and 25% by the defendant.

Cyclist Assessed 30% Fault For Passing Slow Moving Vehicle on the Right

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(Update July 8, 2014 – the below decision was overturned on Appeal with the BC Court of Appeal finding there was no evidence to prove negligence on the motorists part)
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, dealing with the issue of fault following a collision caused by an unidentified motorist.
In last week’s case (Orminston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
Ultimately Mr. Justice McKinnon found both parties at fault. In assessing 30% of the blame to the Plaintiff the Court provided the following comments:

[26]Section 158(1) limits the ability of a “motorist” to pass on the right. It is permissible only in three specific instances, none of which existed at bar. Even when permitted, the move cannot be made if it would be “unsafe” to do so and if the movement caused the vehicle to “drive off the roadway”. “Roadway” is defined in section 119(1) and does not include the shoulder. Section 158(2) stipulates that a motorist must not overtake or pass if the movement cannot be made safely, or if it involves driving off the roadway. The latter, says defence, makes it clear that the plaintiff was not entitled to use the shoulder, at any point, or for any purpose, in attempting to pass. ..

[36]This unidentified vehicle was not near any intersection nor any roadway that might lead a cyclist to believe there was a possibility of a turn into his line of travel. It was descending a steep hill but for unknown reasons came to almost a complete stop at the centre of the road. In my view the facts at bar are not at all similar to those cited in Janzen…

[41]I accept that this unidentified driver was almost stopped at the centre line when he/she made a sudden veering motion that took the vehicle over the fog line onto the shoulder. Such an action, at the very least, constitutes driving without reasonable consideration for others. Clearly Mr. Ormiston also bears some responsibility for this collision, given the provisions of the Motor Vehicle Act to which I have referred. It remains to ascertain the extent to which each is liable.

[42]In Salaam v. Abramovic, 2010 BCCA 212, the British Columbia Court of Appeal offered the following comment about assessing statutory obligations in respect to liability:

[18] While the statutory provisions provide guidelines for assessing fault in motor vehicle accident cases, they do not, alone, provide a complete legal framework

[21] …In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

[43]In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed these general statements of principle, noting:

[18] A breach of the Motor Vehicle Act is not in itself determinative of liability; all of the surrounding circumstances may be taken into account.

[44]In my respectful view, given the provisions of the Negligence Act, R.S.B.C. 1996, c. 333 and the facts that I have found, the defendants bear the greater liability. I find them 70% responsible for the losses claimed. The plaintiff will be assessed 30%.

Driver Found 10% At Fault for Timing a Green Light

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As previously discussed, having the right of way does not automatically result in a driver being found faultless for a collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Matheson v. Fichten) the Plaintiff was a passenger in a Northbound vehicle in a designated left hand turn lane.  The advance green arrow ran its course resulting in a green light for North and south bound traffic.  The driver proceeded with his turn despite no longer having the advance green arrow.
At the same time the Defendant was driving Southbound in the curb lane.  He was several car lengths back from the intersection when his light turned green.  Other Southbound vehicles began to accelerate but then stopped realizing the Plaintiff vehicle was turning.  The Defendant did not stop and entered the intersection when the collision occurred.
Despite having the right of way the Southbound Defendant was found 10% at fault for the collision.  In coming to this assessment Madam Justice Smith provided the following reasons for judgement:
[57] I find that the Bahniwal vehicle was travelling at the speed limit of 50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had slowed when the light ahead was red, but then resumed speed after the light turned green, two to three car lengths from the intersection.  I find that the presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s view of what was occurring in the intersection except for the portion immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s left began to move forward, but they stopped almost immediately.  Mr. Bahniwal overtook those vehicles and passed them on the right, entering the intersection on a green light but without noting that the vehicles to his left had stopped, or taking any particular precaution before entering the intersection…

[61] I have found as fact that Mr. Bahniwal proceeded through the intersection on a green light.  Accordingly, he had the right of way.  His was the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62] The question in the end is whether either Mr. Fichten or Mr. Bahniwal  or both, was in breach of the duty of care he owed to the plaintiff.  I take into account the Motor Vehicle Act provisions as informing the requisite standard of care (Ryan v. Victoria, [1999] 1 S.C.R. 201 at para. 29).

[63] It is clear that Mr. Fichten was negligent in making his left turn when it was unsafe to do so after the light had changed, and in particular by crossing the curb lane of southbound traffic without checking that it was free of oncoming vehicles.

[64] Turning to Mr. Bahniwal, what is the duty of a driver who enters an intersection in the circumstances that faced him?  He was in the curb lane, his view of the intersection was blocked by other vehicles, and those vehicles, having entered the intersection, had subsequently stopped…

[78] In my opinion, when the light facing Mr. Bahniwal turned green and the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal had the opportunity to recognize, and should have recognized, that something had caused them to stop.  His approach into the intersection should then have been tempered with caution, even though he had the light in his favour and had built up some momentum.  He did not take that approach but, instead, proceeded at the speed limit into the intersection.  His vehicle was in the dominant position, but he was not entitled to overlook a clear indication of a possible hazard in the fact that the vehicles to his left had stopped very soon after having begun to move.  The traffic was not backed up in the southbound lanes, as it was inRobinson v. Wong, and the timing of the vehicles stopping was inexplicable from his vantage point.  A careful driver would have reacted to the possibility that a left-turning vehicle, a pedestrian, or some other hazard was still in the intersection.

[79] I find that Mr. Bahniwal was in breach of his duty of care, and allocate liability 10% to him and 90% to Mr. Fichten.