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Plaintiff Unsuccessfully Sues for Being Run Over By Car While Cleaning It

Written by admin on . Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.
In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:
[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.

Jury Dismissal Of Intersection Crash Claim Upheld on Appeal

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


(Accident Reconstruction Software courtesy of SmartDraw)
Adding to this ever-growing database of BC motor vehicle liability cases, reasons for judgement were released this week by the BC Court of Appeal upholding a Jury Verdict dismissing an injury claim following an intersection crash.
In today’s case (Bailey v. Jang) the Plaintiff was driving in a restricted-traffic curb lane as she approached an intersection.  At the same time the main lane in her direction of travel was backed up leaving a gap at the intersection.  The Defendant tried to make a left hand turn through the gap and the vehicles collided.  The Plaintiff sued for damages but her claim was dismissed with the Jury finding that the Defendant was not negligent.  The Plaintiff’s appeal was also dismissed with the Court finding that the jury’s verdict was not unreasonable.  In doing so the BC Court of Appeal provided the following reasons addressing some of the principles that come into play for crashes involving left-hand turning vehicles:

[11] Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, states:

Yielding right of way on left turn

174.     When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[12] Although, as asserted by the appellant, it is a logical corollary of the jury’s verdict that they concluded the appellant was 100% at fault for the accident, it is important to remember that the principal focus of this appeal is whether there was evidence on which the jury properly could have found that the respondent was not negligent.

[13] The appellant relies on Pacheco v. Robinson, (1993), 75 B.C.L.R. (2d) 273 para. 15 where this Court stated:

… the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. …

These comments were noted in Salaam v. Abramovic, 2009 BCSC 111 para. 26.

[14] The quotation of legal principle from Hiscox v. Armstrong, 2001 BCCA 258 and Pacheco is based on circumstances where the left-turning driver “proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way”. In Pacheco this Court found that the defendant “totally failed to determine whether [the] turn [could] be made safely”. In Salaam, the court held that the dominant driver “was there to be seen from 450 feet away” and that “[t]he plaintiff did not determine whether her turn could be done safely”. Such drivers cannot shift responsibility to the driver who has the right-of-way.

[15] Other cases relied on by the appellant show that a dominant driver is not without obligation. This was recognized in Pacheco wherein this Court distinguished a decision of the Ontario Court of Appeal on the basis that “[t]here was no indication here that traffic on the left hand side of the plaintiff had stopped so that the plaintiff should have been alerted to a situation of potential danger”. An obligation on a dominant driver to take care was recognized in Berar v. Manhas, [1988] B.C.J. No. 677, Reynolds. v. Weston, [1989] B.C.J. No. 49, and Clark v. Stricker, 2001 BCSC 657.

[16] These cases illustrate the fact that a left-turning driver is not without rights as is clear from the wording of s. 174. Too often drivers proceed through an intersection as if left-turning drivers have no rights. In each situation, the specific circumstances dictate whether a left-turning driver is at fault for a collision, in whole, in part, or not at all.

Bus Passenger Injuries: When Can a Driver be sued in Negligence?

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When a Bus Driver is involved in an at-fault collision causing injury to the passengers a suit for damages can usually be brought.  What if there is no collision but instead the bus driver makes an abrupt move causing injury to the passengers, can a suit succeed on these facts?  Depending on the circumstances the answer is yes.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this area of the law.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus in Burnaby, BC.  The Plaintiff testified that the driver went over a speed bump and that “her seat cushion slid out from under her and she became briefly airborne during which time her neck snapped forward and back“.  The Court ultimately dismissed the lawsuit finding that the Defendant drove the bus appropriately.  Prior to making this finding Madam Justice Ross provided the following useful discussion addressing this area of the law:

[26] The standard of care owed by a transit operator to a passenger was addressed in Day v. Toronto Transportation Commission, [1940] S.C.R. 433. Justice Hudson described the duty as follow:

Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree: 4 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett [(1817) 2 Starkie 37], the rule was stated by Lord Ellenborough, at p. 38, as follows:

Every person who contracts for the conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences.

[27] In this province, Madam Justice Humphries summarized the principles to be applied in Lawson v. B.C. Transit, 2002 BCSC 1438, as follows at paragraph 18:

As set out in Wang v. Harrod, supra, once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

[28] Mr. Justice Berger in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.) noted that:

…this is not a case where negligence has been established. I say that because, though the bus lurched as it started up, it was a lurch that she, as someone who had travelled on the buses for twenty years had experienced in the past. Anyone who travels on the buses must expect that from time to time the movement of the buses will not be smooth and uneventful. Lurches are part of the movement of these buses and something that the people who travel on the buses learn to expect. Accidents do happen. And there are bound to be some accidents on the bus system. And some of them, like this accident, will not give rise to a right to damages.

Madam Justice Ross goes on to cite about a dozen other cases dealing with Bus Passenger injuries in BC making this week’s case a good starting point in researching bus driver liability for injury to passengers.

Negligence Claims Against Road Maintenance Companies

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If a private contractor fails to clear ice, snow or other hazards on a roadway in British Columbia and this leads to a collision they can, depending on the circumstnaces, be sued for damages in negligence.  This topic was discussed in reasons for judgement released yesterday by the BC Supreme Court, Smithers Registry.
In yesterday’s case (Billabong Road & Bridge Maintenance Inc. v. Brook) the Plaintiff was involved in a single vehicle collision on Highway 16E near Smithers, BC.   She lost control of her vehicle on black-ice and left the roadway.  At the time the Defendant had the contract with the Provincial Government to maintain that stretch of highway.  They did not sand the road and the Plaintiff sued claiming they were at fault for the crash.  The Defendant argued that the Plaintiff drove carelessly and was solely to blame for the crash.
At trial the presiding Judge found both the Plaintiff and Defendant were at fault.  The road maintenance company appealed arguing that the Judge imposed an unfair standard on them.  The appeal was dismissed with the BC Supreme Court finding that the contractor did not respond appropriately to the known slippery conditions.  While the outcome of these cases are highly fact driven Madam Justice Bruce provided the following useful reasons discussing the law of road contractor liability in British Columbia:

[25]        Where the Province delegates responsibility for road maintenance to a private contractor, the contractor inherits the same Crown immunity for policy decisions, but continues to be liable under private law for negligence arising out of operational decisions. For example, where the contract with the Provincial Government specifies that particular road work must be completed within two hours of certain events, compliance with this standard is sufficient to clothe the contractor with immunity for any claim in negligence by a pedestrian or motorist. This is because the time frame for the completion of the work is a matter of policy set by the Provincial Government after balancing the costs associated with the work with the need to ensure the safety of the travelling public. As Meiklem J. says in Holbrook v. Argo Road Maintenance Inc., [1996] B.C.J. No. 1855 (S.C.) at paras. 27-28:

[27]      On the analysis prescribed by the majority of the Supreme Court of Canada in the Just and Brown cases, policy decisions of the Crown are not reviewable and in Brown it was expressly held that decisions as to the level of road maintenance are decisions of policy and cannot be reviewed on a private law standard of reasonableness. They are only reviewable if so irrational as not to be a proper exercise of discretion.

[28]      The application of these principles of course allows the government ministry to indirectly establish the upper limits of the standard of care that they are then held to in their operational functions. Thus the courts defer in a substantial way to the government ministry and the operational standard of care slides up and down the scale according to the level of road maintenance that is set as a matter of policy. Thus if a private law standard of reasonableness in a certain storm condition might suggest hourly patrols but policy has set the frequency of patrols at daily, the latter would prevail as the applicable standard in a negligence action against the Ministry.

[26]        On the other hand, where the negligence arises out of an operational decision, and is not based on a standard of care established as a matter of policy by the terms of the contract with the Provincial Government, a contractor must meet the private law standard. The Court of Appeal described this operational standard of care in Benoit v. Farrell Estate, 2004 BCCA 348 at para. 39:

[39]      The parties agree that Mainroad’s duty is coterminous with the Crown’s duty of care to users of public highways in respect of operational matters.  They agree that the decision whether to apply salt to Highway #4 was an operational decision and that the duty of Mainroad was to take reasonable care to prevent injury to users of the highway by icy conditions: Brown v. British Columbia, [1994] 1 S.C.R. 420 at 439.  The standard of care in respect of highway maintenance was more recently described in Housen v. Nikolaisen at para. 38, quoting from Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):

…the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety.  What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances….

The Duty of Motorists Approaching Flashing Green Lights

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Further to my recent post discussing this topic, Section 131(5) of the BC Motor Vehicle Act requires a driver approaching a flashing green light to travel with sufficient caution so they can bring their vehicle to a stop should it be necessary.  Failure to do so could result in fault for a crash even if another motorist fails to yield the right of way.  This was discussed in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Lutley v. Southern) the Defendant was attempting to cross Oak Street in Vancouver, BC.  The Defendant was travelling on 67th Avenue.  She had a stop sign in her direction of travel.  At the intersection Oak Street had 6 lanes of travel.  The Plaintiff was travelling in the lane furthest away from where the Defendant entered the intersection.  As the Plaintiff approached the intersection she was faced with a flashing green light.  Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
Mr. Justice Rice found both drivers at fault with the Defendant shouldering 60% of the blame.   Although the Plaintiff entered the intersection on a green light she was found partly to blame for failing to comply with section 131 of the Motor Vehicle Act.  In addressing the issue of fault Mr. Justice Rice provided the following reasons:

[12]         By the Motor Vehicle Act, s. 131(5), a driver approaching a green flashing light at an intersection is obliged to slow down sufficiently to be able to stop before the intersection and avoid an accident.  I find that the plaintiff was negligent and in breach of her statutory duties by failing to slow down sufficiently to be able to stop at the intersection.  She could see that her vision of the intersection was obstructed and would continue to be obstructed practically until she had reached the intersection itself.  She should have applied her brakes as soon as the obstruction appeared and come to practically a stop at or near the intersection.

[13]         By the Motor Vehicle Act, ss. 125, 186 a driver approaching a stop sign must come to a full stop.  There is also a general duty to drive safely, maintain a proper lookout, and not to proceed forward until it is safe to do so.  I find that the defendant was negligent and in breach of her statutory duty in failing to maintain a proper lookout and by accelerating through the intersection when it was not safe to do so…

[18]         In conclusion, I find that both drivers were negligent and in breach of duties imposed upon them pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 at ss. 125, 141.  I apportion liability at 60% to the defendant and 40% to the plaintiff.

Motorcyclists, "Staggered" Riding and Safe Distances

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It is not uncommon for motorcyclists to travel in a ‘staggered‘ formation when riding in groups.  Typically one motorcyclist will travel within a few feet of the left of their lane of travel (the “A” position) with the following motorist travelling within a few feet of the right side of their lane of travel (the “C” position).  This staggered position is used in part because section 194(4) of the BC Motor Vehicle Act prohibits motorcyclists from operating “their motorcycles side by side in the same direction in the same traffic lane“.
When travelling in groups of two it is important for the rear motorist to leave sufficient space between them and the lead motorist.  Failing to do so could be negligent as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Nanaimo Registry.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was injured in a 2005 collision in Saanich, BC.  The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position.   Her husband unexpectedly cut in front of her.  In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.

(Accident Reconstruction Software courtesy of SmartDraw)
She sued her husband for damages.  Mr. Justice Halfyard found that the Defendant “cut in front of the plaintiff’s motorcycle and created an unreasonable risk to her safety.“.  For this reason he was found legally responsible for the Plaintiff’s crash.  The Plaintiff, however, was also found partially at fault and had her damages reduced by 30% as a result.  In finding the Plaintiff partly at fault Mr. Justice Halfyard made the following observations:
[148]     By reason of s. 194(4) of the Motor Vehicle Act, it is not unlawful for two motorcycle drivers to ride side-by-side in the same traffic lane. I accept that it is permissible and common practice among motorcycle riders to ride in their lane of travel in the A position and C position, and then come to a stop at approximately the same time, side-by-side. But in my view, s. 194(4) does not operate for or against the plaintiff in this case…

[162]     I am satisfied that the plaintiff failed to take reasonable care for her own safety, in several respects. In my opinion, a motorcycle driver who possessed reasonable driving skills and who was exercising reasonable care for her own safety would not have been travelling in the C position only two motorcycle lengths behind a lead motorcycle in the A position, at a speed of 40 kph, when both riders were approaching the back end of a stopped pickup truck and when she was not more than 14.56 metres away from that truck (and when the lead motorcycle driver in the A position was closer to that truck and travelling at least as fast as she was).

[163]     I find that when the defendant Martin steered in front of her, the plaintiff was driving without due care and attention and at a speed that was excessive relative to the road and traffic conditions, in relation to both her husband’s motorcycle and the stopped truck. That conduct was contrary to s. 144(1) of the Motor Vehicle Act and also constituted negligence.

[164]     I find also that, at the time the defendant Martin steered in front of her, the plaintiff was following the defendant Martin’s motorcycle more closely than was reasonable and prudent, having due regard for the speeds of the two motorcycles and the presence of the stopped pickup truck ahead of them. That conduct was contrary to s. 162(1) of the Motor Vehicle Act. I find that this conduct also constituted negligence on the part of the plaintiff.

[165]     I am also satisfied that this driving conduct of the plaintiff in breach of the standard of care, was a cause of her losing control of her motorcycle. She put herself into a situation where the defendant Martin (before he swerved) was a potential hazard to her, and the stopped pickup truck was an actual hazard to her safety. If she had been travelling at a slower speed and at a greater distance behind the defendant Martin, and if she had slowed her motorcycle down sooner than she did, the plaintiff could have safely avoided the defendant Martin’s motorcycle and could have safely stopped behind the pickup truck. As it was, the plaintiff’s own negligent driving made it necessary for her to take emergency evasive action, which should not have been necessary. Taking that evasive action caused the plaintiff to lose control of her motorcycle, which resulted in her injury. I find that there was a substantial connection between the negligent driving of the plaintiff, and her injury. In my opinion, the evidence establishes on the balance of probabilities that the plaintiff was contributorily negligent.

Expert Reports and the New Rules of Court: The "Factual Assumptions" Requirement

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One of the requirements in the new BC Supreme Court Rules is for expert reports to clearly set out the “factual assumptions on which the opinion is based“.  Failure to do so could result in a report being excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this requirement.
In this week’s case (Knight v. Li) the Plaintiff attempted to cross 41st Avenue in Vancouver, BC when his vehicle was T-boned by a the Defendant.  The Plaintiff had a stop sign and was the ‘servient driver’.  The Defendant was speeding.  Mr. Justice Harris found the Plaintiff 75% at fault for the crash and the Defendant 25% at fault.  The reasons for judgement are worth reviewing in full for the Court’s through discussion of the legal principles at play in intersection crashes.
In the course of the lawsuit the Plaintiff introduced an expert report from an engineer.  The Defendant objected to the report arguing that it did not comply with the rules of Court.  Mr. Justice Harris ultimately did allow the report into evidence but made the following critical comments addressing an experts need to clearly set out the factual assumptions underpinning their opinions:

[38]         Our new Supreme Court Civil Rules codify the obligations of experts testifying in our Court. In my view, they restate obligations our law has long recognised. The Civil Rules require a clear statement of the facts and assumptions on which a report is based. It was incumbent on Mr. Gough to state clearly the assumptions on which his report was based. He did not do so. He did not provide me with an opinion of the effect of Mr. Li’s excessive speed on his ability to avoid the collision as he claimed. He gave me an opinion of Mr. Li’s ability to avoid the collision if certain assumptions favourable to Mr. Knight were made. He said nothing about being instructed to make those assumptions and nothing about the effect on Mr. Li’s ability to avoid the Accident if those assumptions did not hold.

[39]         It must be remembered that Mr. Gough’s report is his evidence. In my view, the report as written did not comply with the requirements in the Civil Rules to state the facts and assumptions on which it is based. There is nothing improper in an expert accepting assumptions of fact that affect the opinions the expert provides, but they must be clearly stated. If they are not, there is a real risk that the trier of fact could be misled. In this case it required cross-examination to demonstrate the implications of the assumptions for the conclusions reached about Mr. Li’s ability to avoid the Accident. In my view, in this case, given the opinion being offered, the report should have clarified the effect of the assumptions about Mr. Knight’s driving on the conclusions about Mr. Li’s ability to avoid the Accident. By failing to do so, this aspect of the report descended into little more than a piece of advocacy.

$55,000 Non-Pecuniary Damages for Thoracic Outlet Syndrome

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Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing quantum and liability following a motorcycle accident.
In this week’s case (Langley v. Heppner) the Plaintiff was injured in a 2003 BC collision.  The Plaintiff was operating a motorcycle and was following a vehicle operated by the Defendant.  Both vehicles were behind a slow moving van.  As the motorists approached a straight stretch of road both the Plaintiff and Defendant attempted to pass the van in the on-coming traffic lane.  They did so at almost the same time resulting in a violent crash catapulting the Plaintiff about 60 feet.
Mr. Justice Barrow held that both motorists were at fault with the Defendant bearing 80% of the blame.   Paragraphs 11-37 of the reasons for judgement are worth reviewing for the Courts discussion of liability.
The Plaintiff suffered various injuries.  Most of these went on to heal however he was left with persistent neck and shoulder pain.  Ultimately he was diagnosed with Thoracic Outlet Syndrome.  The limitations related to this were expected to continue to improve however there was a likelihood of long standing symptoms.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In doing so the Court provided the following reasons:
[43] Turning to Mr. Langley’s injuries more generally, he suffered a number of bruises and abrasions which resolved unremarkably. His low back was sore, and although it remained sore and painful for a considerable time following the accident, it was asymptomatic by the time of the trial (six years post-accident). His most significant and persistent injury is to his right shoulder and the right side of his neck…
[51] I am satisfied on a balance of probabilities that the plaintiff has thoracic outlet syndrome and that it is a result of the motor vehicle accident…
[58] Mr. Langley’s right shoulder and right neck pain are the most significant consequence of the accident. I accept that he is always in some degree of discomfort in these areas. His level of discomfort increases when he becomes fatigued, but it is most seriously aggravated when he does any activity that involves lifting his right arm to or above shoulder level…
I am satisfied that Mr. Langley’s functional abilities will improve in some respects, although not to a significant degree…
[81] In view of all of the foregoing, an appropriate award for non?pecuniary damages is $55,000.

Cyclist Found Fully At Fault For Collision With Vehicle

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the issue of fault following a serious collision between a cyclist and a vehicle.
In today’s case (Ireland v. McKnight) the Plaintiff was a doctor who was involved in a “career-ending road traffic incident” in 2007.   The Plaintiff was travelling southbound on his bicycle on Henderson Road.  At the same time the Defendant passed the Plaintiff in the same direction of travel.  At this time a collision between the bicycle and vehicle occurred.
The Court heard competing theories about how the collision occurred but ultimately found that the Plaintiff drove into the vehicle and was fully responsible for the crash.  In dismissing the lawsuit Mr. Justice Wilson provided the following reasons:

[22]         I find the defendants’ theory of how contact occurred to be the more plausible.

[23]         I find the front wheel of the bike contacted the right rear quarter panel of the car, behind the right rear wheel well.

[24]         If, as the plaintiff argues, the car was on a collision course with the bike, or failed to adjust sufficiently to avoid a collision course, then I find that the right front corner of the car would have struck the bike.  The evidence does not support such a finding.

[25]         I conclude that the plaintiff moved the bike to the left, concurrently with the turn of head in that direction.  But for the plaintiff moving the bike, there would have been no contact between the bike and the car.

[26]         I find the defendant driver passed the bike at a safe distance, and, on the evidence, that at least three-quarters of the car length had passed the bike before contact occurred.

[27]         In result, I find the defendant driver not liable for the incident.  It follows that the plaintiff’s claim against the defendant driver, pursuant to s. 86 of the Motor Vehicle Act, fails.

The Shortcomings of "Occupant Dynamics" Expert Evidence

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Accident reconstrucion experts routinely give evidence during BC personal injury lawsuits when fault for a motor vehicle crash is at issue.  One subset of such expert evidence is “occupant dynamic” evidence which seeks to explain how a passenger would be thrown around following a collision.  While this evidence can have some value at trial it is accompanied with certain shortcomings.  These were discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Byer v. Mills) the Plaintiff was one of two occupants in a vehicle which was involved in an at-fault collision.  The central issue at trial was who the driver of the vehicle was.  The Plaintiff was badly injured and had no recollection of who was driving.  The second occupant of the vehicle died shortly following the crash.  There were no independent witnesses addressing who was driving at the time of the crash and the Court had to decide this issue relying on circumstantial evidence.
In the course of the trial the Court heard evidence from an ‘occupant dynamic‘ expert.   Ultimatley Mr. Justice Harris dismissed the Plaintiff’s lawsuit finding that, on a balance of probabilities, he was likely the driver therefore he was at fault for his own injuries.  This decision was most influenced by lay witness evidence and the occupant dynamic expert testimony was of little value in this particular case.  Mr. Justice Harris provided the following short but useful comment addressing the shortcomings of occupant dynamic evidence:
[54] The principles of occupant dynamics are helpful up to a point. Certainly, they assist in identifying the principal direction of force exerted on occupants. They are also helpful in identifying the point at which an occupant might be expected to make initial contact with the interior of the passenger compartment. In my view, in the circumstances of this collision, the predictive value of principles of occupant dynamics rapidly diminishes once the movement of the passengers is affected by contact with the interior of the compartment and with each other. At that point the situation becomes inherently dynamic and fluid. There are far too many variables involved to make accurate predictions of how the occupants and parts of their bodies would move once they start hitting each other. It must be remembered that if unrestrained an occupant would be traveling within the compartment at a speed of about 55 km/h. I am sceptical that any reliable prediction of how the occupants would interact with each other, with the interior of the passenger compartment and move within it can be undertaken.