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Court Refuses To Sever Liability From Quantum Where Damages Disputed

Written by admin on . Posted in BCSC Civil Rule 12, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.
Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:
[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?
The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

More On Withdrawing Admissions of Liability

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Liability (fault) Cases, Uncategorized. 47 Comments on More On Withdrawing Admissions of Liability


As previously discussed, Rule 7-7(5) canvasses the BC Supreme Court’s authority to allow a party to a lawsuit to withdraw a formal admission made the course of litigation.
A common admission canvassed under this rule deals with fault following a crash.  Occasionally ICBC admits fault on behalf of a Defendant and for various reasons wishes to withdraw such an admission as the lawsuit progresses.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Goundar v. Nguyen) the Plaintiff was involved in a 2008 collision.  ICBC initially denied fault on behalf of the Defendant.  In the course of the lawsuit the Defendant’s lawyer ‘inadvertantly’ agreed to admit liability on behalf of the Defendant and an amended Response was filed.
The Defendant brought an application to withdraw its admission.  In allowing this the Court found that the admission was made inadvertently and provided the following reasons:

[35] Rule 7-7(5) provides:

A party is not entitled to withdraw…

(c) an admission made in a pleading…

except by consent or with leave of the court.

[36] The cases to which I was referred dealing with withdrawal of admissions treat admissions made by inadvertence with caution.  Many of the cases deal with deemed admissions through failure to respond to a Notice to Admit.  However, the considerations remain the same.  The court will consider if the admission was made inadvertently, if it is in the interests of justice to allow the issue to be resolved by a trial, and if there will be no prejudice to the party which cannot be compensated by costs.  If satisfied of those factors, leave to withdraw such an admission will generally be granted. (Abacus Cities Ltd. v. Port Moody [1980] B.C.J. No. 1749 and cases cited therein).

[37] The balancing of the interests of justice requires the applicant to show that there is a triable issue in respect of the admission.  The chambers judge must not make a final determination, but will simply determine if there is an issue worthy of being tried.  Prejudice resulting only from the benefit of relying on the admission occasioned by the inadvertence is not of significance (Can-Am, supra)…

[42] I am satisfied there is a triable issue on liability, based on the information put before me as to Goundar’s allegations, potential evidence from Maharajh, and Nguyen’s ticket on the one hand, and Nguyen’s and Stewart’s evidence on the other.  As well, Nguyen has her own action which is still outstanding.  There is a conflict in the evidence about the collision, which should be resolved by a trial.

[43] Although the plaintiff says the relevant admission was made deliberately and with no new facts available, that is not borne out by the affidavit material.  The lawyer has set out clearly how she came to make this admission in the face of her own assessment of the case and contrary instructions.  She admits she did not remember her instructions had changed and she did not conduct a review of the file before following a prompt from her paralegal to follow up on ICBC’s original letter.  The initial suggestion by ICBC to canvass plaintiff’s counsel regarding the proposal was made without the benefit of Mr. Stewart’s evidence, and the relevant instructions not to admit liability were in place at the time the lawyer amended the Response to admit liability.  I am satisfied that the defendant has demonstrated that the admission was made inadvertently.

[44] As for the balancing of prejudice, nothing irrevocable has been done that cannot be compensated for in costs.  The interests of justice require that this unfortunate situation be set back on track rather than allow the Goundar action to proceed on an untested and possibly erroneous foundation which has come about as a result of a mistake.

[45] If the admission of liability is left in place, the possibility of future remedies exists through an action by ICBC against the lawyer, and also possibly by Nguyen against ICBC for failure to defend her in this action.  However, that is not a satisfactory approach.  Goundar’s action would still be predicated upon a mistaken admission, and the interests of justice are not served by failing to rectify a mistake in circumstances where any prejudice can be compensated for in costs.

[46] The delay in bringing the application, once the lawyer became aware of her mistake, is not inordinate.  The trial date is four months away, which allows time for additional discovery.  While the deadline for expert reports is approaching, any prejudice arising from that factor can be compensated for in costs, as set out below.

[47] Goundar says this case is taken outside the usual bounds of withdrawals of admissions by the bargain she struck – discontinuing the action against Stewart in exchange for an admission of liability on behalf of Nguyen.  The defendants must be held to their bargain.  However, the Court of Appeal held in Drake (Guardian ad litem of) v. Clark (1996) 31 B.C.L.R. (3d) 289 that it is no longer necessary for the doctrine of promissory estoppel to be invoked in applications to withdraw admissions.  Withdrawal may be made if it is in the interest of justice.  As well, in this case, unlike Phil Whittaker Logging Ltd., supra, and the other cases referred to by the plaintiff, the admission was made inadvertently.

More on Commercial Host Liability and Excessive Alcohol Service

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


As previously discussed, a commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.
In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.
The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.

Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed


The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.
At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation…

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.

Plaintiff Struck by Fleeing Shoplifter Found Faultless for Collision

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a crash when a Plaintiff was struck by a fleeing shoplifter.
In last week’s case (Bhadlawala v. Baxter) the Plaintiff was involved in a 2008 collision.  At the time he was 64 years old and was a long time employee at Zellers.  He observed an individual shoplifting and followed him into the parking lot.  The shoplifter entered a van.  The Plaintiff stood behind the van, about one vehicle length away, and attempted to write down the licence plate.  The vehicle then suddenly backed up and struck the Plaintiff causing injury.
ICBC argued the Plaintiff should be found 25% at fault for placing himself in harm’s way.  Madam Justice Gray rejected this argument and found the motorist fully at fault.  In doing so the Court provided the following reasons:
[85] Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was negligent in placing himself behind the van in the parking lot, and that he thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to have known that the van was going to back up, and should not have stood behind it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent for the 2008 accident, and that his damages award should be reduced accordingly…

[93] The defence argued that Mr. Bhadlawala should not have pursued the shoplifter. However, the accident was not the result of pursuing the shoplifter. It was the result of the van striking Mr. Bhadlawala in the parking lot.

[94] The shoplifter was in the van. The evidence did not establish whether the shoplifter was the driver or a passenger in the van. The driver of the van probably wanted to avoid anyone noting the van’s license number. It was reasonable for Mr. Bhadlawala to have anticipated that the van might have backed up.

[95] However, the risk of being caught shoplifting is far less significant than the risk of being caught striking a pedestrian with a vehicle.

[96] It was not reasonably foreseeable that the driver of the van would reverse so quickly that Mr. Bhadlawala could not move out of the way in time to avoid being struck. Mr. Bhadlawala was standing over a van length behind the van, which would have given him ample time to get out of the way if the van had moved at a reasonable speed…

[101] As a result, Mr. Robert is entirely responsible for the 2008 accident.

Another useful case addressing this issue can be found here where the BC Court of Appeal found ICBC’s arguments in a similar situation were ‘doomed to failure‘.

Liability Denial To the Cusp of Trial Brings Judicial Criticism

Written by admin on . Posted in ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:
[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…
The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.

Sometimes You Really Do Have to Sue Your Mother

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


Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.
When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.
In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway.“ At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.
The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] … The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

Bus Driver Liable For Injuries Caused by Hard Braking

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, Uncategorized. 99 Comments on Bus Driver Liable For Injuries Caused by Hard Braking


As previously discussed, a collision is not necessary in order for a motorist to be responsible for personal injuries caused to others.  This was demonstrated again in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Prempeh v. Boisvert) the Plaintiff was a passenger on a bus operated by the Defendant.  The Defendant “vigorously and abruptly applied the brakes to avoid a collision with the two vehicles which had stopped ahead of him“.  This caused the plaintiff, who was standing holding a metal handle, to be thrown down the aisle.  The Plaintiff was injured in the process.
The Plaintiff alleged the driver was negligent in braking hard.  The Defendant disagreed arguing this action was necessary to avoid collision.  Ultimately Madam Justice Dardi found the driver fully liable for the incident for driving without due care an attention.  In assessing the driver at fault the Court provided the following reasons:

[22] Mr. Boisvert was required to brake hard to avoid hitting the two vehicles that had stopped on the roadway in front of the bus he was operating. The first of the vehicles had stopped to turn left on Hamilton Street. The second car stopped behind the left-turning vehicle without a collision and without accompanying honking or screeching of brakes. It can reasonably be inferred that this occurred within a time frame that should have permitted a reasonably prudent user of the road driving behind those vehicles an opportunity to react and brake without incident. The application of the brakes was not a reaction to an emergency or unexpected hazard.

[23] Moreover, Mr. Boisvert properly conceded that, regardless of an abrupt or unexpected stop of a vehicle ahead, in order to prevent accidents prudence mandates that at all times a bus driver drive defensively and maintain a safe cushion or certain distance from a vehicle travelling in front of the bus. This is precisely to be able to stop safely in the event of an unexpected manoeuvre by that vehicle.

[24] I cannot find with precision whether the sudden and hard application of the brakes occurred because Mr. Boisvert was travelling too rapidly, not maintaining a diligent look-out or because he failed to maintain a safe distance from the vehicle in front of him. However, in weighing all of the evidence I have concluded that Mr. Boisvert’s sudden and vigorous application of the brakes, in the context of all the circumstances in this case, establishes a prima facie case of negligence against Mr. Boisvert. It is not conduct attributable to a reasonably prudent bus driver.

[25] Having found a prima facie case of negligence the onus is upon the defendants to establish that Mr. Boisvert was not negligent or that the incident was attributable to some specific cause consistent with the absence of negligence on his part.

[26] I note that Mr. Boisvert’s assertion at his examination for discovery that he could have stopped smoothly but the bus brakes on the new trolley bus “grabbed” and caused a “hard stop” is no answer to this claim.

[27] Mr. Boisvert was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff cannot be expected to assume any risk associated with the operation of the vehicle which could not reasonably be anticipated by a passenger. The usual braking of a driver as he moves through traffic would not cause a passenger to be thrown to the floor so violently. Moreover it is well established on the authorities that the responsibility of a public carrier extends to ensuring that its modes of conveyance permit the bus to be operated in a safe and proper manner: Visanji at para. 32.

[28] I have considered all of the authorities provided by both parties. Though useful as providing guidance on the governing principles, each case turns on its own facts. I note that unlike the circumstances in Lalani v. Wilson, [1988] B.C.J. No. 2408 (Q.L.) (S.C.), upon which the defendant relies, the bus driver here was aware that the plaintiff had fallen – the possibility of injury was self-evident. Mr. Boisvert’s attention was drawn to such a possibility at the time of the incident and in compliance with the bus operator training manual he should have recorded all pertinent information regarding the incident. While the court in Lalani found it would have been unfair to shift the burden, this is not so in this case.

[29] On balance I am not satisfied that the defendants have shown that Mr. Boisvert conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit. In the result, I conclude that Mr. Boisvert, however fleetingly, breached the standard of care of a reasonably prudent bus driver. I find the defendants negligent.

Section 10 WCB Bar Fails to Protect Ministry of Solicitor General

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 51 Comments on Section 10 WCB Bar Fails to Protect Ministry of Solicitor General


(Update June 19, 2013 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
As previously discussed, Section 10 of the BC Workers Compensation Act can strip people of their right to sue if they are injured in the course of their employment by someone else in the course of their employment.
When a police officer in the course of their duties injuries someone through negligence they may be subject to this bar.  However, when an RCMP officer is negligent they usually enjoy personal immunity from lawsuits and instead the injured party needs to look to the Minister of Public Safety and Solicitor General for compensation who are exposed by statute for liability when RCMP members are negligent in the course of their duties.  (Note: this Ministry has recently been overhauled and renamed the Ministry of Justice)
Interesting reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, discussing the interplay of the WCB Bar to lawsuits and actions against the Minister of Solicitor General for negligence of RCMP officers.
In last week’s case (Aitken v. Bethell) the Plaintiff was seriously injured while sitting in a parked vehicle.  The RCMP were in pursuit of the Defendant Bethell who lost control of his vehicle, colliding with another, and eventually causing a collision with the Plaintiff’s vehicle.  The Plaintiff sued various parties including the police officer.
Both the Plaintiff and the Police officer were found to be in the course of their employment at the time of the crash.   The Minister of Public Safety and Solicitor General brought an application to have the lawsuit against them dismissed relying on the WCB section 10 bar.  Mr. Justice Halfyard refused to do so finding that while the bar could prevent the lawsuit against the individual officer, the Minister did not enjoy the same immunity as they were not an ‘employer‘ and their liability was created by virtue of statue.  In permitting the claim to proceed Mr. Justice Halfyard provided the following reasons:

[66]I have attached s. 10(1) of the Act as an appendix to these reasons. It seems to me that, in a negligence action for damages for personal injury, in order for a defendant to succeed in this defence, it must be established:

a)that the plaintiff, at the time of the alleged injury, was a “worker;”

b)that the alleged injury “[arose] out of and in the course of [the plaintiff’s] employment;”

c)that the defendant was the plaintiff’s employer, or the plaintiff’s co-worker, or “any employer within the scope of this Part” (i.e., Part 1 of the Act), or “any worker;” and

d)that the conduct of the defendant which is alleged to have caused the injury “arose out of and in the course of employment within the scope of this Part” (i.e. Part 1 of the Act).

[67]Where the statutory bar applies in favour of a defendant, the plaintiff cannot maintain his or her action as against that defendant. The plaintiff is restricted to making a claim for workers compensation in respect of the injury caused by that defendant.

[68]It appeared to be common ground that, if the Minister was an employer within the meaning of the Workers Compensation Act, then s. 10(1) would be an absolute bar to any action being brought against him by the plaintiff, i.e., a “worker,” (for any tort allegedly committed by him or by a police officer), even though neither the government nor the Minister was the employer of the police officers involved. The potential scope of the statutory bar appears to be broad…

[80]It seems to me that the Court of Appeal is saying, by necessary implication, that the province cannot be vicariously liable under s. 11 of the Police Act, and that only the Minister can be. If that is so, then on hindsight, it would appear that Mr. Justice Macaulay should not have granted judgment against both the government and the Minister, but should only have found the Minister to be vicariously liable. To my mind, that result cancels out the argument of the applicants based on Hill v. Hurst.

[81]If the plaintiff had sued the Government of British Columbia (which would have to be named as “Her Majesty the Queen in Right of the Province of British Columbia”: s. 7 of the Crown Proceedings Act), the finding of WCAT that the government was an employer within the meaning of the Workers Compensation Act could have the legal effect of entitling the government to the statutory bar in s. 10 of the Act (but only if the conduct of the government, or its servant or agent, was a cause of the injury, and that conduct “arose out of and in the course of employment”). But the plaintiff has not sued the government, nor could he have sued the government, in my opinion. I am not persuaded that the Minister should be accorded the status of an employer for the purpose of s. 10(1) of the Act, simply because the government is an employer and because the Minister is the designate, or is the agent of, the government for the purposes of the Police Act.

The Dangers of Passing Vehicles Near Intersections

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 160 Comments on The Dangers of Passing Vehicles Near Intersections

When a driver proceeds into the on-coming lane of travel to overtake another vehicle care must be taken.  This is particularly so near intersections.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver, Registry, addressing fault for a collision arising in such circumstances.
In yesterday’s case (Johel v. ICBC) the Plaintiff stopped at a stop sign.  She intended to make a left hand turn.  The vehicle approaching from her left was slowing and signalling intending to make a right hand turn.  The Plaintiff felt it was safe to proceed with her turn and entered the intersection.  At the same time the Defendant’s vehicle chose to pass the third party by entering the on-coming lane of travel.  A collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
The Defendant fled leaving the Plaintiff with the remedy of suing ICBC under section 24 of the Insurance (Vehicle) Act.  Ultimately Mr. Justice Bernard found the unidentified vehicle fully at fault for the crash.  In doing so the Court provided the following reasons for judgement:

[13] In the circumstances of the case at bar, the obligations of the plaintiff under the Act are found in ss. 165(2), 186, and 175(1).

[14] Section 165(2) applies to drivers making left turns at intersections where traffic is permitted to move in both directions on each highway entering the intersection. The provision sets out the obligations of a driver in such a situation. Section 186 obliges a driver approaching a stop sign to stop at the marked stop line. There is no evidence or suggestion that Ms Johel failed to comply with these rules of the road.

[15] Section 175(1) sets forth the obligations of a driver entering a through highway from a stop sign. The defendants say the plaintiff failed to yield, as required by this provision. Section 175(1) reads as follows:

175(1). If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b) having yielded, the driver may proceed with caution.

[16] The statutory obligations of the defendants are found in ss. 155(1)(c), 157(1), 159, 160, and 175(2) of the Act.

[17] Section 155(1)(c) obliges a driver to drive to the right of a single line, broken or solid, except only when passing an overtaken vehicle. There is no evidence or suggestion that the defendant driver drove to the left of the solid yellow line except for the purpose of overtaking Mr. Lam.

[18] Section 157(1) sets forth the obligations of the overtaking vehicle vis-à-vis the overtaken vehicle. There is, again, no evidence or suggestion that the defendant driver did not comply with this rule.

[19] Sections 159 and 160 set forth the obligations of drivers passing on the left. They state as follows:

159. A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

160. A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances.

[20] Section 175(2) obliges a driver on a through highway to yield to a vehicle which has entered the highway in compliance with s. 175(1). The plaintiff says the defendant driver of the white car failed to yield, as required by this provision. Section 175(2) states as follows:

175(2). If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway….

[29] Having regard to all the evidence and the positions of the parties, I find: (a) that Ms Johel was attentive and observant while stopped at the stop sign; (b) that Ms Johel proceeded with caution into the intersection and, at the time, the only traffic in her view was the car of Mr. Lam; (c) that the defendants’ white car was, at the time, to the left of Mr. Lam and, thus, hidden from Ms Johel’s view; and, (d) that at the time of collision, the white car was straddling the centre line and Ms Johel’s car was crossing it and heading slightly eastward.

[39] Having regard to all the foregoing, I conclude: (a) that when the defendant driver overtook Mr. Lam he or she did so in breach of ss. 159 and 160 of the Act; (b) that the defendant driver failed to meet the requisite standard of care; and (c) that the defendants are solely at fault for the collision.