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Defendant Not Liable For Collision Caused By Black Ice

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Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.
In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.

Pedestrian Found 30% At fault For Crash for "Cutting the Corner"

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(Update February 5, 2012 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing fault between a vehicle and a pedestrian.
In last week’s case (Anderson v. Kozniuk) the Plaintiff was crossing a street in an unmarked crossing.  In the course of crossing he “cut the corner” and walked away from the intersection.  He was walking “briskly“.   At the same time the Defendant motorist was travelling south on 12th Street, she “went through the intersection and hit (the Plaintiff)“.

Madam Justice Russell found both parties at fault with the driver shouldering 70% of the blame.  In coming to this conclusion the Court provided the following reasons:

[69]When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed. The very presence of the marked crosswalk should have been an indication to her of the possible presence of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is possible she would have seen the plaintiff before the last second, when it was too late to avoid him.

[70]Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.

[71]Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. Had he crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it is possible Ms. Kozniuk would have seen him. As well, had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. By angling across towards the bus stop, as he did, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.

[72]By leaving the crosswalk, the plaintiff was also entering a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him. He failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12th. His awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of checking its proximity to him…

[75]I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.

[76]The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident…

[78]In reviewing the cases put before me by counsel, including Karran v. Anderson, 2009 BCSC 1105, Beauchamp v. Shand, 2004 BCSC 272, Wong-Lai v. Ong, 2011 BCSC 1260, I have determined that the relative degrees of blameworthiness should be as follows: 30% to the plaintiff and 70% to the defendant.

Motorist Cutting Vehicle Off While Parking Found Fully Liable for Crash

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a personal injury lawsuit arising from a 2008 collision which occurred in Burnaby, BC.
In this week’s case (Haughian v. Jiwa) both the Plaintiff and Defendant were travelling Eastbound on Sunset Street.  The Plaintiff was in the inside lane and the Defendant was behind in the curb lane.  Although the Court heard competing versions of how the collision occurred it was ultimately accepted that the collision occurred as the Plaintiff attempted to pull into a parking spot on the right hand side and failed to realize the Defendant was approaching.  As can be seen from the below photo the parking spots are bizarrely positioned on this stretch of road facing away from the eastbound traffic.

As the Plaintiff pulled in the Defendant’s left front corner hit the Plaintiff’s right side passenger door.  In finding the Plaintiff fully at fault and dismissing the lawsuit Mr. Justice Punnett provided the following reasons:

[83] The evidence of the defendant is that the plaintiff turned across his lane without signalling her intentions.  The plaintiff’s assertion that she first saw the defendant when he was 4 to 5 parking spaces away is consistent with the defendant’s evidence that the turn was made immediately in front of him.  The defendant states he was not speeding.  The speed limit was 50 km per hour.  The distance involved on the evidence of the plaintiff was limited.  The resulting time available to the defendant to react was also limited.  That reaction time is to be judged by the “the standards of normal persons and not by applying the standards of perfection” (Tucker at p. 554).

[84] The actions of the plaintiff would not be anticipated by a reasonable person.  Her conduct was so out of the norm that the defendant would have no reason to anticipate her attempt to park by crossing over his lane of travel.  There was no evidence that such a manoeuvre was common practice.  At best, had she signalled, the expectation of a reasonably competent driver would be that she was signalling a lane change.  As required by s. 151 of the Act, the plaintiff had the obligation to ensure that her movement towards the parking space could be completed safely and not affect the travel of the defendant driver.

[85] The plaintiff has failed to establish that the defendant had the time, distance or opportunity to react and avoid the plaintiff.  The evidence of the defendant is consistent with the physical evidence; that of the plaintiff on either of her versions is not.  As noted in Haase, any doubts are to be resolved in favour of the defendant.

[86] For these reasons I am satisfied that the necessary findings of fact can be made in this summary application and that it is not unjust to do so.  I am satisfied that the plaintiff was solely responsible for the accident and that no liability rests with the defendant.  The plaintiff’s claim is dismissed.

Circumstantial Evidence and ICBC Unidentified Motorist Claims

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Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a Plaintiff’s ICBC Claim alleging that an unidentified motorist caused a significant collision.
In last week’s case (Paguio v. Fraser) the Plaintiff was injured when his scooter collided with another vehicle.  The Plaintiff suffered a “serious head injury” and his ability to give evidence surrounding the circumstances of the crash were limited.
The Plaintiff conceded that the vehicle he collided with did nothing wrong but alleged that an unidentified motorist cut the plaintiff off forcing him into the other vehicle.  Mr. Justice Williams rejected this argument concluding that on a balance of probabilities the evidence did not support such a finding.  Prior to doing so the Court listed the following applicable principles when faced with a claim based on circumstantial evidence:

[60] …I must be guided by certain basic concepts that govern the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice Wilson provided a helpful discussion of the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence and provided reference to the applicable authorities.

[61] The principles as I understand are these:

(a)      Where a case is not proved by direct evidence, the court will carefully examine and consider the relevant circumstantial evidence.

(b)      Circumstantial evidence derives its effect through the process of the trier of fact drawing reasonable inferences. That is a cognitive process whereby, once certain facts are established or proven, then a logical conclusion is considered. It is the process of reasoning from a proven fact or facts to a reasonable, rational and logically legitimate conclusion.

(c)      The drawing of an inference is different than mere conjecture or a guess, no matter how shrewd or plausible that guess might be.

(d)      An inference, once properly drawn, must give rise to a reasonable conviction in the mind of the trier of fact that the element of which proof is necessary is at least more likely than not, or to some greater degree of certainty.

(e)      The plaintiff can succeed in proving his case on the strength of a reasonable inference which gives rise to a conclusion that the element has been proven on a balance of probabilities. If the inference does not support the conclusion to that standard, then the proof is not made out.

[62] In the final analysis, applying these guiding principles, and having examined the evidence carefully, I have concluded that the circumstantial evidence proffered by the plaintiff does not enable me to find that the case has been proven to the necessary standard. The plaintiff has not met the onus of proof he bears to establish his claim and it must therefore stand dismissed.

Left Hand Turning Vehicle Found Faultess for Intersection Crash

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Motorists are entitled to commit to an intersection and wait until its safe to proceed prior to making a left hand turn.  If the light turns red prior to a safe moment arriving it is appropriate for a motorist to wait that long prior to completing their turn.  In such circumstances a turning motorist can be found fully faultless if a collision occurs which was demonstrated in reasons for judgement released last month by the BC Supreme Court, Vancouver Registry.
In last month’s case (Henry v. Bennett) the Defendant was driving NorthBound on King George intending to make a left hand turn on 68th Avenue.  At the same time the Plaintiff was travelling Southbound on King George intending to drive through the intersection.

The Court found that the Defendant entered the intersection on a green light.  She waited for a gap in traffic.  The light eventually turned amber and then red.   Southbound traffic visible to the Plaintiff stopped.  She began her turn when the Plaintiff came through the intersection and the collision occurred.  The Plaintiff sued for damages but the claim was dismissed with the Court finding him fully at fault for entering the intersection on a red light when it was unsafe to do so.  In finding the Defendant faultless Madam Justice Ballance provided the following reasons:






[72] Ms. Bennett was in a position remarkably similar to that of the plaintiff in Kokkinis. Although she did not see Mr. Henry prior to the collision, Kokkinis indicates that it does not necessarily follow that she was in any way negligent. Having said that, I wish to clarify that I do not read Kokkinis as standing for the proposition that left-turning drivers are entitled to proceed blindly on the assumption that oncoming drivers will obey the rules of the road, without regard to their concurrent obligation to act reasonably as the circumstances dictate. In my view, Ms. Bennett was entitled to proceed on the assumption that oncoming traffic, including Mr. Henry, would act in accordance with the law and come to a stop on the late amber, absent any reasonable indication to the contrary and provided she comported herself with reasonable care. Here, there was no contrary indication from Ms. Bennett’s standpoint. Indeed, she could see that the SUV across from her had complied with the rules and she was aware as well that the flow of straight through traffic had ceased some seconds earlier. She had no reasonable indication that oncoming traffic in the form of Mr. Henry would proceed through the intersection in clear violation of the rules of the road. Moreover, I find that in all the circumstances she conducted herself prudently and with reasonable care in negotiating her left turn. In contrast, Mr. Henry knew or reasonably ought to have known that in all likelihood Ms. Bennett would have carried through with her left turn at the final stage of the amber light, and most assuredly when the signal turned red. He created an extremely unsafe situation in failing to come to a stop.

[73] I endorse the case authorities that cast doubt over the legitimacy of portraying a driver in Mr. Henry’s shoes as having the presumptive right-of-way or otherwise qualifying as the dominant driver for the purposes of assessing liability using the Walker paradigm: see, for example, Snow v. Toth, [1994] B.C.J. No. 563 (S.C.); Shahidi v. Oppersma, [1998] B.C.J. No. 2017 (S.C.); Ziani v. Thede, 2011 BCSC 895. The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully and, it seems to me, is of utility in that circumstance only. I, therefore, question whether that framework is of any assistance to a driver like Mr. Henry, who has acted in breach of his statutory duty. In any case, it cannot be said that Ms. Bennett attempted to execute her turn in complete disregard of her statutory duty to yield, which is an integral component of the Walker analysis. Indeed, it is my view that Ms. Bennett can be validly characterized as the dominant driver in the circumstances. There is no cogent evidence to remotely suggest that she could have avoided Mr. Henry by the exercise of reasonable care. To formulate it in the terms of s. 174, Ms. Bennett posed an immediate hazard to Mr. Henry, which he should have appreciated, and it is he who ought to have yielded the right-of-way.

[74] Based on the foregoing, I am satisfied that the accident was caused solely by the negligent driving of Mr. Henry. As he is entirely at fault for the accident, his claim is dismissed.







Driver Fully Liable Following Passenger Ejection From Box of Pick Up Truck

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The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.
In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
The Court heard no evidence as to how the Plaintiff came to fall out.   At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box.  The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected.  The Plaintiff appealed this finding arguing there was no evidence to support this conclusion.  The BC Court of Appeal agreed and placed 100% of the blame on the motorist.  In doing so the Court provided the following reasons:

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

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

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

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

Motorist 75% At Fault for Striking Cyclist on Sidewalk

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Although Section 183 of the Motor Vehicle Act prohibits a cyclist from riding on a sidewalk, motorists need to keep a lookout for this common breach of the law.  Failure to do so can result in fault in a motor vehicle collision as was demonstrated in reasons for judgement released yesterday by the BC Supreme Court, Vancouver Registry.
In yesterday’s case (Deol v. Veach) the Plaintiff cyclist was travelling Southbound on a sidewalk on Scott Road in Surrey, BC.  This was against the flow of traffic for his side of the street.  At the same time the Defendant motorist was exiting a Safeway parking lot attempting to turn right onto Scott Road.

The Defendant failed to see the Plaintiff and a collision occurred.  Both parties were found at fault with the Court placing the majority of the blame on the motorist for failing to keep a proper lookout.  In reaching this finding Madam Justice Dardi provided the following reasons:

[25] A critical and uncontroverted fact in this case is that the defendant did not see the plaintiff when he looked to the right as he was approaching the Exitway. On his own admission his unobstructed view of the Sidewalk to the north was for some 200 feet. Moreover, after the defendant stopped just east of the unmarked crosswalk at the Exitway, and prior to executing his right turn, he did not look to the right again. The defendant was in clear violation of s. 144 of the MVA, which prohibits driving without due care and attention and without reasonable consideration for others. Although the plaintiff was riding in the direction facing traffic, the Exitway, which was bordered by a sidewalk on both sides, was precisely where a motorist should reasonably have expected to encounter another user of the road. Unlike the plaintiff in Ivanoff v. Bensmiller, 2002 BCCA 173, the plaintiff was not in an unexpected location. The defendant was well aware that both pedestrians and cyclists used the sidewalks on Scott Road.

[26] I find on the totality of the evidence that had the defendant acted in a reasonably prudent manner he would have seen the plaintiff. The plaintiff was there to be seen by the defendant. Had the defendant maintained a proper look-out there is an irresistible inference that the collision would have been avoided. I therefore conclude that the defendant failed to meet the standard of care of an ordinarily prudent driver required in the circumstances, and that his failure to do so was a cause of the accident. In the result I find the defendant negligent…

[36] I consider the defendant’s failure to keep a proper lookout, his failure to observe the plaintiff who was there to be seen, and his execution of a right turn while focussing to his left, more blameworthy than the lapse of care of the plaintiff, who, after stopping at the Exitway and observing the defendant’s vehicle come to a stop, failed to make eye contact with the defendant prior to proceeding through the Exitway.

[37] In the end I find that the defendant was substantially but not entirely to blame for the accident and therefore I attribute fault to both parties. I apportion liability 75% to the defendant and 25% to the plaintiff.

Motorcyclist Crossing the Centre Line Found Fully Liable for Collision

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Reasons for Judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a two vehicle collision involving a motorcycle and a cube van.
In last week’s case (Hale v. MacEwan) the Plaintiff motorcyclist was travelling southbound on 207th Avenue in Maple Ridge BC when he collided with the Defendant’s vehicle which was travelling in the opposite direction on the two lane street.  While the Court heard competing versions of events Mr. Justice Harvey concluded that the Plaintiff, whose blood alcohol limit was “twice the statutory level of impairment” failed to navigate the ‘hairpin turn” depicted in the below satellite image:

The Plaintiff crossed into the Defendant’s lane of travel and the collision occurred.  The Plaintiff argued that the Defendant was partially to blame for driving “too close to the centre line“.  Mr. Justice Harvey rejected this argument finding that the Defendant was appropriately in his own lane of travel.  In dismissing the claim the Court provided the following reasons:

[59] Here I am able to say with some precision where the accident occurred and the distance of the defendant’s container from the centre line. As noted, I am satisfied he was with in his lane of travel. The negligence of the plaintiff has been made out. He failed to maintain his vehicle within the travelled portion of the roadway for his direction of travel.

[60] The remaining question is this: was the defendant so close, as was the case in Watson, as to make his actions unreasonable?

[61] In concluding that he was not, I distinguish the situation from that which occurred in Watson, to the facts here. Here, the violation by the plaintiff was both unusual and unexpected.

[62] Neither driver testified to a situation which should have caused the defendant to consider that the plaintiff would fail to negotiate the corner. His speed was not an issue and he seemingly, according to all witnesses, had control of his vehicle as he entered the curve…

[67] Here, unlike in Watson, the distance between the outer edge of the van and the centre line was 20-25 cm or 9-10 inches. The front of the van, while not perfectly centered within the defendant’s lane, was set back from the centre line even further.

[68] Whatever contact occurred between the defendant’s mirror, the plaintiff, his passenger, and/or his vehicle, did not occur in the plaintiff’s lane of travel.

[69] To require the defendant to position his vehicle farther from the centre line in anticipation of the negligence of the plaintiff requires a standard of perfection, not reasonableness.

[70] In the result I am satisfied that the accident occurred wholly as a result of the plaintiff’s negligence. The action is dismissed.

More on ICBC Claims and the Seatbelt Defence

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(Image via Wikimedia)
As I wrote in one of my first blog posts in 2008, failing to wear a seatbelt can reduce the level of compensation an otherwise faultless accident victim is entitled to in their personal injury claim.  However, this reduction does not flow automatically by failing to wear a seatbelt.  The Defendant still bears the burden of proving that it was unreasonable in the circumstances not to wear a seatbelt and further that injuries would have been lessened with proper seatbelt use.  Absent such evidence a Plaintiff’s compensation will not be reduced.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Gilbert v. Bottle) the Plaintiff was involved in a single vehicle collision in 2005.  She was a passenger in the Defendant’s vehicle.  She occupied the back seat between another passenger and a baby seat.  Both seatbelts available in the back were inaccessible given this position as one seatbelt was affixed to the baby seat and the other was located where the other passenger was seated.  The Plaintiff could have removed the affixed seatbelt herself (as the babyseat was unoccupied) but she did not do so.
The driver was “impaired by alcohol when he approached a corner too quickly and lost control of the vehicle“.  The Plaintiff was ejected.  She suffered severe injuries including a complicated traumatic brain injury.
ICBC presented evidence that the Plaintiff’s injuries would have been reduced with proper seatbelt use and argued that the Plaintiff’s damages ought to be reduced.  Madam Justice Dickson rejected this argument and did not accept ICBC’s expert’s opinion (the Court’s discussion of this can be found at paragraphs 44-48 of the judgement).  Madam Justice Dickson made the following findings and provide the following discussion canvassing this area of law:
[24] A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts.  If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence.  Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent: Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609…

[52] Defence counsel also submits that Ms. Gilbert contributed negligently to her own injuries by agreeing to ride as a passenger in a position not equipped with an available seatbelt.  He says the circumstances are similar to those in Thon and, had Ms. Gilbert exercised reasonable care, she could have avoided her injuries entirely by not assuming the risk of riding in the middle backseat.  On this analysis, it is unnecessary to consider the extent to which proper seatbelt use would have avoided or reduced her injuries.  If, however, such an analysis is required he says, based on Mr. West’s evidence, those injuries caused by ejection from the vehicle could have been avoided.  He concedes that, on a Thon analysis, an apportionment in the 10% range would be appropriate.

[53] Despite his able submission, I cannot agree with defence counsel.  In my view this case is not analogous to Thon, which concerned plaintiffs who knowingly rode in an area of a vehicle not equipped with seatbelts (having done so in the same area earlier in the day).  In this case, the backseat of the Capri was equipped with two seatbelts but one was affixed to the baby seat and the other was located in the position occupied by Mr. Wycotte.  Ms. Gilbert was unaware of this situation until after she got in the car and, by that time, Mr. Bottle had pulled away.  Thereafter, her attempts to access the seatbelt used by the baby seat were unsuccessful, as were her attempts to persuade Mr. Bottle to stop the car and let her out.

[54] In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri.  It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety.  In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.

[55] If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal.  Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care.  Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct.  In these circumstances, at most I would have assessed her contributory negligence at 5%.

Social Host Lawsuit Involving "Disastrous" Injury Survives Summary Dismissal Application

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Important reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that given the right circumstances a ‘social host’ can be found negligent if one of their guests becomes impaired and subsequently causes a motor vehicle collision.
In this week’s case (Sidhu v. Hiebert) the three infant plaintiffs were injured in a motor vehicle collision.  They were passengers in their parents vehicle which was struck by another motorist.  There was evidence that the driver of the other vehicle was previously at a social party where he consumed alcohol.   There was also evidence that he had blood alcohol content high enough that he “would have had to drink between 20 and 26 ounces of hard liquor to produce such a result“.  The liquor was not necessarily all consumed at the social gathering.
One of the infant plaintiff’s was “disastrously injured”  with his spinal cord severed in the high cervical area.
The lawsuit was launched alleging negligence against not only the motorists but also the social host.  The social host brought an application for summary dismissal arguing that the 2006 Supreme Court of Canada judgement of Childs v. Desormeaux eliminated the possibility of success in social host lawsuits.  Mr. Justice Johnston disagreed and dismissed the Defendant’s motion.
The Court held that given the right circumstances social host lawsuits can succeed but given some conflicts in the evidence presented this specific case was inappropriate for summary disposition.  In dismissing the application Mr. Justice Johnston provided the following reasons:
[32] Whether a duty had been established on the face of it depended on the answer to this question: “What, if anything, links party hosts to third-party users of the highway?” (Childs, para. 24)…

[43] The court says at para. 31:

… However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved. [Emphasis in original.]

[44] I take from this passage that this aspect is also evidence-driven, in that whether there is a nexus between the parties will depend on the nature of any relationship revealed by the evidence. The passage also suggests that if there is more than a “mere fact that a person faces danger,” again revealed in the evidence, the general statement may not apply.

[45] The court in Childs summarized three situations where courts have in the past imposed positive duties to act: where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.

[46] I agree with counsel for Mr. Rattan that this case does not fit comfortably within any one of these three situations, but I also note that the Court in Childs at para. 34 said these were not strict legal categories, but serve to elucidate factors that can lead to positive duties to act.

[47] After pointing out that the three situations have in common the defendants’ “material implication in the creation of the risk or his or her control of a risk to which others have been invited,” and the reluctance of the law to infringe on the personal autonomy of someone in Mr. Hiebert’s position without good reason, the Court at para. 39 points out that someone in Mr. Rattan’s position might be expected or required by law to impinge on Mr. Hiebert’s autonomy only when he has a special relationship to the person in danger (not apparent here), or “… a material role in the creation or management of the risk.”…

[56] Because I am persuaded that this case should be decided on a full record of evidence at trial, I conclude that I should leave to trial the question of whether motorists can reasonably rely on a social host to not exacerbate an obvious risk by continuing to supply alcohol to an apparently impaired guest who the host knows will drive away from the party. It seems to me that justice requires that I allow the parties to develop the evidence and argument on a full trial.

[57] Mr. Rattan’s application is dismissed with costs in the cause.

This case is also worth reviewing for the Court’s discussion of whether a passenger in the alleged impaired driver’s vehicle could be found liable.  The Social host brought ‘third party’ proceedings against the motorists passenger arguing that if they are liable then the driver’s passenger should be as well.  Mr. Justice Johnston dismissed this allegation finding that even viewing the evidence in the most favourable light this allegation would fail.  The Court provided the following reasons:

[65] If I assume for the purposes of this application that the evidence showed that Mr. Braun and Mr. Hiebert arrived together at the party in an intoxicated condition, both continued to drink Mr. Rattan’s alcohol to excess at the party, and both left together at the end, in a more intoxicated condition than when they arrived – with Mr. Hiebert driving and Mr. Braun as his passenger – is there a possibility that the first branch of the Anns test might be satisfied? My answer is no.

[66] The language in Childs that might allow a court to conclude that a social host owes a duty of care to highway users injured by a driver who becomes impaired as a guest of the host does not go so far as to admit the possibility of a duty on a companion or fellow traveler who does no more than observe the risky behavior of the drinking guest, and perhaps acquiesce to an extent in the risk by drinking with and then accepting a ride home from the party with the drunken guest.