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More on Liability – Stop Signs, Speeding and Fault

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Liability – Stop Signs, Speeding and Fault

Reasons for judgment were released this week dealing with the issue of fault for a car crash where one motorist bound by a stop sign enters an intersection and gets hit by a speeding vehicle.
In this week’s case (McKinnon v. Peterson) the Plaintiff stopped at a stop sign heading northbound on Marlborough Avenue at the intersection of Kingsway.  As the Plaintiff entered the intersection and almost cleared it he was struck by the defendants vehicle who was travelling westbound.   The Plaintiff’s vehicle was struck on the right passenger side in a “violent” collision which caused all four tires of the defendant’s vehicle to leave the ground and “drove the plaintiff’s vehicle… over the curb, flattening a stop sign, shearing a light standard, and through a garden bed, and finally into the front of a restaurant. ”
When a motorist leaves a stop sign and attempts to cross an intersection on a through highway the motorist needs to comply with s. 175 of the Motor Vehicle Act which holds in part that:

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.

(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.

Mr. Justice Hinkson held that while the Plaintiff entered the intersection at a time when the Defendant did not constitute an “immediate hazard” the Plaintiff failed to proceed with caution by “failing to observe the defendant’s vehicle that was there to be seen” and for this the Plaintiff was found at fault.

The analysis did not end there, however, as the Defendant was also found at fault for speeding and failing to yield the right of way to the plaintiff who gained the right of way after he entered the intersection at a time when the Defendant did not pose an immediate hazard.

Specifically Mr. Justice Hinkson found that “the defendant was traveling at a speed of close to double the posted speed limit as he approached the intersection of Kingsway and Marlborough Avenue on November 2, 2006, and that he was unable to do so safely. He failed to yield the right of way to the plaintiff.”

The Court went on to find the Defendant 2/3 at fault for this collision and the Plaintiff 1/3 at fault.  In doing so Mr. Justice Hinkson described the relative fault of the parties as follows:

[47] I am unable to conclude that such a division of liability is warranted in this case. Mr. Petersen was travelling at what I have found to be an unsafe speed in all of the circumstances, and knew, or should have known that he would be unable to safely stop for vehicles that might choose to cross Kingsway, having acquired the right of way to do so. His conduct in these circumstances was reckless.

[48] On the other hand, Mr. McKinnon chose to cross a six lane street at other than a traffic controlled intersection, knowing that vehicles travelled that road at that time of day at speeds greater than posted. In so doing, he was obliged to proceed with caution, and I find that he did not.

[49] Weighing the respective negligence of the parties, I consider that the defendant must bear the majority of the liability for the collision. I conclude that the defendant’s conduct was considerably more negligent than the plaintiff’s, and that the defendant must bear two-thirds of the blame for the collision, and the plaintiff the remaining one-third. There will be judgment accordingly.

Intersection crashes are some of the most complicated cases when determing the relative blameworthiness of each party.  While each case turns on its own facts and the results can very depending on all the subtleties of evidence in any given case, this decision is worth reviewing for a careful analysis of some of the factors that come into play when deciding whom to blame to what degree for an intersection crash.

More ICBC Injury Claims Updates – The Kelowna Road Edition

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 57 Comments on More ICBC Injury Claims Updates – The Kelowna Road Edition

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court.  Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.
4 cases worth noting were released today by the BC Supreme Court.  The first deals with the issue of fault and the others deal with damages (value of the the claims).
In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident.  She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.
The Plaintiff had a stop sign and was the ‘servient driver’.  The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so.    Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”
The court also found that the Defendant was speeding.  The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10th at between 83.5 and 86 km/h as he approached the Intersection.  He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street.  The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred.  I also find fault with Mr. Peck for failing to keep a proper look-out.  He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way.  That is why he did not see her pull into the Intersection when he was 62 to 65 metres away.  The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes.  To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him.  Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration.  The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres.  Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff.  This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.
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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.
In this case the Plaintiff was injured in a 2005 BC Car Crash.   In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:
88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages:   $45,000

Income Loss:  $8,771.97

Future Loss of Opportunity:  $30,000

Special Damages:  $12,045.96

Cost of Future Care:  $5,500

Loss of Houskeeeping Capacity:  $3,721

_____________________________________________________________________________________________

The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“.   Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘.  Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do  to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate“

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms.  I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries.  I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi).  There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present.  Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found.  It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear.  However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal.  Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC.  Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision.  With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury.  She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling.  The Accident aggravated the existing condition of her spine.  The nature and extent of her symptoms changed.  The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004.  I accept Dr. Matishak’s opinion as the treating surgeon.  He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck.  He was cross-examined extensively on the issue.  He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident.  She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent.  She worked at physically demanding jobs without experiencing low back pain.  In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic.  She continued to experience pain from the date of the Accident onwards.  However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure.  Drs. Watt and Matishak were cross-examined on this issue.  Both maintained that this fact did not cause them to alter their opinions.  They both noted that there were symptoms of radiating leg pain shortly after the Accident.  Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case.  The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries.  I have found that the symptoms and back pain were caused by the Accident.  Those symptoms persisted and became chronic.  The conservative treatment attempted did not provide relief.  Consequently, Ms. Sanders chose surgery.  The fact that three surgeries were required was a direct result of the condition of her spine after the Accident.  In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.

Vehicle Damage and the Law of "Accelerated Depreciation"

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 124 Comments on Vehicle Damage and the Law of "Accelerated Depreciation"

When a vehicle is damaged in a BC car crash and subsequently repaired, the repaired vehicle may have a lower market value than it otherwise would have.  Can the owner of such a vehicle be compensated for this loss?  The answer is yes and is dealt with under a head of damage known as ‘accelerated depreciation’.  Reasons for judgment were released today by the BC Supreme Court dealing with this legal principle.
In today’s case (Cummings v. Daewoo Richmond) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff purchased a used vehicle from the Defendant Daewoo.  Seven days later she lost control of her vehicle and was injured as a result of the crash.  Madam Justice Gerow found that the Defendant sold the Plaintiff a vehicle with defective tires.  The court then concluded that “the accident was caused by a loss of friction due to the wear on the rear tires of the vehicle, and that Daewoo has failed to establish that Ms. Cummings’ operation of the vehicle either caused or contributed to the accident.”
The court went on to award the Plaintiff just over $38,000 in total damages including $7,600 for ‘accelerated depreciation’ of her vehicle.  I set Madam Gerow’s discussion out of this area of the law below:

Accelerated depreciation

[70] Ms. Cummings is claiming the amount of $7,600 for accelerated depreciation of the Nissan due to the damage it sustained in the accident. For the following reasons, I have concluded that an award in that amount for accelerated depreciation is appropriate.

[71] The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.

[72] Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73] It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.

More on BC Hit and Run Accidents

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 54 Comments on More on BC Hit and Run Accidents

I’ve previously posted that victims of Hit and Run accidents in BC can make a claim directly against ICBC in tort in certain circumstnaces under Section 24 of the Insurance (Vehicle) Act
Section 24 has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.
Reasons for judgement were released today addressing a victim’s obligations to make ‘reasonable efforts’ to identify the driver/owner of offending vehicles in s. 24 ICBC hit and run claims.
In today’s case (Fan v. ICBC) the Plaintiff was injured in a BC Car Crash.  She failed to identify the at fault motorist and brough a claim direclty against ICBC for her pain and suffering and other losses in tort. The Plaintiff’s case was dismissed for failing to take reasonable efforts to identify the at fault motorist.  In dismissing the claim Mr. Justice Curtis explained the duty of motorists involved in s. 24 hit and run claims to make ‘reasonalbe efforts’ as follows:

[20] The British Columbia Court of Appeal considered what was then s. 23 of the Insurance (Motor Vehicle) Act in the case of Leggett v. Insurance Corporation of British Columbia, [1992] B.C.J. No. 2048.  In that case, a man whose car was rear ended spoke to the driver who hit him and both agreed each would look after his own damage.  The man did not bother to obtain the name of the driver or owner of the vehicle because he did not plan to make any claim.  He later sought to recover damages for injury from the Insurance Corporation of British Columbia.

[21] Taylor J.A. in delivering the Reasons of the Court of Appeal, dismissing the claim, held at paras. 7 – 13 of the Reasons:

Here the trial judge was of the view that Mr. Leggett’s ignorance of his injury until the following day made it reasonable that he would not until then make any effort to obtain identification particulars. The judge found that the efforts which Mr. Leggett thereafter made to trace the owner and driver were “reasonable” for the purpose of Section 23(5).

I find myself unable, with respect, entirely to agree with the approach taken by the trial judge.

The section provides a means by which a person who has suffered injury or property damage in a motor vehicle accident may obtain compensation from the government insurer even though the driver said to be at fault, and the owner of the vehicle which was being driven by that person, are insured in another jurisdiction or not insured at all, even though the corporation will, in any event, be unable to look to the other driver for assistance in resisting the claim, and even though the corporation will be unable to obtain reimbursement in the event the other driver is uninsured or there has been a policy breach, or to obtain contribution by way of increased premiums through forfeiture of the other party’s ‘safe driving’ discount. As the trial judge recognized, protection against fraudulent claims is only one of the purposes of the requirement that the claimant show inability to identify the other driver and owner as a condition of being able to claim under the section. In my view the overall purpose of the section is to limit the exposure of the corporation to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be their own interests, and which, by virtue of the section, become the interests of the corporation.

The corporation’s exposure under the section is limited to claims brought by those who could not have ascertained the identity of the parties responsible. It does not, in my view, extend to claims by those who have chosen not to do so.

I do not think the words “not ascertainable” should be strictly interpreted, so as to mean “could not possibly have been ascertained”. I think they are to be interpreted with reference to subsection (5) so as to mean “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them”. Where a person knows that he or she has been involved in a motor vehicle accident, but refrains even from recording the licence number of the other vehicle, when that number is visible and the claimant could, had he or she wished, reasonably have recorded it, such a claimant must, in my view, find it particularly difficult, and probably impossible, to establish that he or she made all reasonable efforts to discover the identity of the owner and driver of that vehicle for the purposes of the section.

The test seems to me to be subjective in the sense that the claimant must know that the vehicle has been in an accident and must have been in such a position and condition that it would be reasonable for the claimant to discover and record the appropriate information. But the claimant cannot be heard to say: “I acted reasonably in not taking the trouble to find out”.

I think that in essence the test is that which was formulated by Hinkson, L.J.S.C. (as he then was) in King et al v. A.G. (B.C.) (1968), 66 W.W.R. 223 (B.C.S.C.), followingRossiter v. Chaisson, [1950] O.W.N. 265 (Ont. H.C.). In the King case, which was decided under the then Section 108 of the Motor Vehicle Act, R.S.B.C. 1960 Chapter 253, the judge (at p. 226) held the appropriate test to be whether the claimants had “pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances” had there been no such provision. In order to accommodate the current statutory requirement in the present context, I would add, after the words “would have done in like circumstances”, the words “if the claimant intended to pursue any right of action which he or she might have arising out of the accident”.

[22] In the case of Johal v. Insurance Corporation of British Columbia and John Doe, Mr. Johal was struck by a car while walking across a street.  The driver got out of his vehicle and asked Mr. Johal how he was, but Mr. Johal, having been traumatized by the collision did not think to ask for the driver’s identity.  When the ambulance arrived, he said he felt fine and took a taxi.  The next morning his left knee was swollen and he realized he had been hurt.  Two days after the accident, he telephoned ICBC and the police.  The police told him he had to report in person which he did 12 days after the collision.  About six weeks after the accident, he advertised for witnesses in the information wanted section of a small neighbourhood paper.

[23] Esson C.J.C. as he then was, in dismissing Mr. Johal’s claims ruled as follows:

… I do not think that the plaintiff’s action is precluded by his failure to do more than he did on the Saturday evening. Although he may not have been in “shock” in a technical sense, it is understandable that he was in some state of confusion and, bearing in mind that he then believed he had not been injured, I would not hold against him his failure to get information at that time.

But, by the next morning, the plaintiff was aware that he was suffering from an injury. He did nothing until the following day. His conduct in telephoning I.C.B.C. that day and giving a full written report within days thereafter was reasonable enough, but only in a most indirect way can it be described as an effort to ascertain the identity of the owner or driver. A timely report to the police would have been more in point; to defer that step for a further ten days was less than reasonable. The advertisement in the personal column was so belated and in an organ of such limited circulation as not to be reasonable. There is no evidence of any attempt to track down the ambulance crew or of any effort to find witnesses at the location. The test which the plaintiff must meet is to satisfy the court that he made “all reasonable efforts”. In a case, such as this, where there is no suggestion of fraud, I would regard “reasonable” as the fundamental element of the test. It should not be made so exacting that it cannot be met. But, on the facts proved here, I cannot be satisfied that the plaintiff has met the test.

[24] The wording of the section itself and previous decisions clearly establish that the onus is on Ms. Fan to establish that she made all reasonable efforts to establish the identity of the owner and driver.  (Nelson v. Insurance Corporation of British Columbia, 2003 BCSC 121, paras. 17 and 18):

On the evidence before me, I am not satisfied that “all reasonable efforts have been made … to ascertain the identity of the unknown owner and driver …”

[25] Firstly, Ms. Fan’s evidence about what happened at the scene is contradictory.  Her trial evidence was that another vehicle parked between her and the one that struck her which combined with the dark, prevented her from seeing the license plate while she was walking toward it.  Previous statements she gave suggest there was only one vehicle.  At trial, she testified she spoke to the second man and perhaps the driver did not speak English.  In her statement to ICBC three weeks after the accident, she said, “The other driver said that his car is ok ….  He asked  me what happened to me ….”  Ms. Fan’s evidence is not sufficiently reliable for me to determine what actually occurred and on that basis to decide whether her actions at the scene were reasonable or not.

[26] Secondly, even if Ms. Fan’s attempts at the scene, such as they were, were reasonable, her attempts to identify the owner and driver thereafter were not.  When she spoke to the police at the time she mistakenly believed the accident took place on United Boulevard.  When she spoke to the police, they told her to report the matter to ICBC.  It was clear at that point the police were not going to be investigating who had hit her.  Making a sign to post a month later then not putting it out because it was raining was no effort at all.  Nor was placing advertisements in theVancouver Sun and Province three months later, a genuine or reasonable effort.  Driving around looking for the car 15 minutes at a time for a couple of weeks following the collision, assuming that was done is in the absence of other reasonable steps is not sufficient.

[27] Patricia Fan has failed to prove that she has complied with the requirements of s. 24(5) of the Insurance (Vehicle) Act and is therefore not entitled to claim damages against the Insurance Corporation of British Columbia directly under s. 24.  The claim against the Insurance Corporation of British Columbia is dismissed.

Can you be at Fault for a BC Car Crash if you are Rearended?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 54 Comments on Can you be at Fault for a BC Car Crash if you are Rearended?

Although such a finding is unusual the short answer is yes, you can be at fault for a car crash when rear-ended by another motorist.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry demonstrating this.
In today’s case (Saffari v. Lopez) the Plaintiff sustained injuries when she rear-ended the Defendant’s vehicle in West Vancouver on the on-ramp to the Lion’s Gate Bridge.
Traffic at the time of the crash was sparse.  The Plaintiff was following the Defendant’s vehicle.  The Defendant’s passenger attempted to ‘throw out a cigarette and thought it came back in‘ and in reaction to this the Defendant brought his vehicle to ‘a fairly sudden slowdown‘.  At this time the Plaintiff collided with the Defendant vehicle.
Mr. Justice Harvey of the BC Supreme Court found that both the Plaintiff and Defendant were equally to blame for this collision, he reasoned as follows in reaching this conclusion:

[41] Section 144(1)(b) prohibits drivers from driving without reasonable consideration for other persons using the highway.

[42] Such would include, in my opinion, consideration of the circumstances of stopping or suddenly slowing one’s vehicle in the flow of traffic where other viable options, such as exiting the roadway, existed.  The emergency resulting in the deceleration of the Lopez vehicle was self-created.  In any event, there is no suggestion that the cigarette had fallen onto the driver’s lap or otherwise onto his person.  Mr. Lopez’s reaction, that is to suddenly slow or stop his vehicle, was but one of several choices he had.  He acknowledged these included signalling an intention to change lanes to reach a point of safety where he could stop his vehicle without impeding traffic or putting on four-way flashers to alert following vehicles and other users of the road to an emergency.

[43] I find Mr. Lopez was negligent in suddenly stopping or slowing his vehicle on the roadway approaching the Lions Gate Bridge: Ayers.  Here, unlike in the authorities referred to by the defendant, traffic was not stop and go as was the case in Pryndik v. Manju, 2001 BCSC 502 at para. 2, aff’d 2002 BCCA 639, nor was there such a lapse of time between the action of the defendant and the happening of the accident to bring the circumstances of this case within the reasoning of the Court in Peterson v. Cabot, 2000 BCSC 1453.

[44] I also need to consider the actions of the plaintiff Ms. Saffari and what, if any, responsibility rests with her actions leading to the collision.

[45] I must reject, almost in its entirety, the evidence of Mr. Javanpour as it relates to the driving of Ms. Saffari prior to and leading to the accident.

[46] His evidence concerning matters such as the conversations he overheard, the use or availability of a cell phone during the journey preceding the accident coupled with his description and explanation as to the Jeep’s running lights, all make his evidence of events unreliable.

[47] Ms. Saffari’s description of events, while more credible in terms of the totality of the evidence, is equally wanting in some areas.  Her description of the conversation with Ms. Pfeifer coupled with her denial of it on discovery, her varying estimates of her speed and that of the Jeep, her admission that she “momentarily lost sight of the Jeep” coupled with the elaborate description of her evasive actions also cause me to question more important aspects of her evidence as it relates to the moments or seconds leading to the accident.

[48] Ms. Saffari never said the Lopez vehicle slammed on the brakes.  She testified she saw the brake lights of the Jeep come on as she entered the arc of the curve.  She did not describe a panic stop nor is such consistent with the evidence of Mr. Lopez.  Her evidence as to “losing sight of the Jeep” simply makes no sense if her estimate as to the separation between the vehicles and her speed is consistent and she was maintaining proper lookout.  Were she travelling both at the speed she describes and the distance from the Jeep when she saw the lights come on, she could have stopped.  This is not a case where the doctrine of “agony of collision” applies.  Drivers are daily confronted with vehicles in front of them stopping or slowing for all sorts of reasons.  If Ms. Saffari did react in the elaborate manner she and Mr. Javanpour described in their evidence then she did so because she was travelling either too fast for conditions or too close behind the Lopez vehicle to bring her car to a timely stop once confronted by the hazard posed by the defendant’s driving.

[49] In the circumstances, I find the plaintiff and defendant equally at fault for the accident.  The defendant Ms. Pfeifer is accordingly liable, as owner, in like proportion to Mr. Lopez.

BC Personal Injury Claims and Circumstantial Evidence

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

If you are injured in BC through the actions of another but can’t gather any direct evidence proving that the other party is at fault can you still succeed in a claim for damages?  The answer is yes a lies in circumstantial evidence.
Direct evidence is evidence that stands on its own to prove a fact :”I saw the Defendant get drunk, get behind the wheel speeding like a maniac and hit the pedestrian“.  Circumstantial evidence, on the other hand, is evidence that proves a fact by an inference “the defendant had 12 drinks on his bar tab and at the scene of the accident he was found unconscious in the driver seat, smelling of alcohol, in front of the pedestrian who was found injured in the crosswalk“.  In the first example there is direct evidence of drunk driving causing injury, in the second example there is evidence that can lead to the reasonable conclusion of drunk driving causing injury.
Negligence in BC Personal Injury cases can be found wholly on circumstantial evidence and today reasons were released by the BC Court of Appeal dealing with the law of circumstantial evidence in an ICBC claim.
In today’s case, Michel v. Doe and ICBC, the Plaintiff was “seriously injured by an object that had come off a loaded logging truck being driven by an unidentified driver.”   The Plaintiff sued for damages.   Since the driver left the scene of the injury and could not be identified the Plaintiff could not prove what specifically, if anything, the driver did wrong in contributing to this object coming off the logging truck.  The lawsuit was dismissed at the trial level due to a lack of evidence of negligence.  The Plaintiff appealed.
The BC Court of Appeal dismissed the appeal but in doing so discussed the law dealing with circumstantial evidence in BC personal injury claims.  The highlights of this discussion are reproduced below:

[21]          In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:

[9]        The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence:  Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577.  That case was decided after the judgment at trial in the case at bar.

[10]      While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified.  The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence.  The legal burden of proof, of course, remains on the plaintiff throughout.

[22]          The appellant argues that the “question which must be asked and which the learned trial judge did not ask is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur without negligence.”  However, this question was posed in Fontaine in the context of the Court’s discussion regarding the requirements for the application of res ipsa loquitur during the course of its “obituary” for the Latin maxim (Gillis v. B.C. Transit, 2001 BCCA 248 at para. 4, 88 B.C.L.R. (3d) 163).  Nonetheless, it is arguable that despite the reformulation given in Fontaine, this question remains relevant to the issue of whether a prima facie case of negligence has been made out.  In Fontaine itself, in concluding that the circumstantial evidence present did not discharge the plaintiff’s onus, the Court stated “it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence” (paras. 31-32).  Moreover, as previously noted, Marchuk held that despite its criticism of res ipsa loquitur, the Court in Fontaine had not actually modified the underlying principles governing the use of circumstantial evidence in determining liability for negligence.  Further, in Lemaire v. Ashabi et al, this Court upheld the trial judge’s decision finding negligence, a decision which referenced Fontaine, stating with respect to the trial judge’s finding of prima facie negligence that:

[7]        She first considered whether the prima facie inference of negligence could be drawn.  She cited (at para. 56) United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the principle that:

… the fact that an operation is under the control of the defendant coupled with the fact that the accident is such that in the ordinary course of things it would not happen if those having the management use proper care, is sufficient to establish a prima facie case of negligence.

[23]          In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred.  In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care.  Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.

[24]          The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.”  Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection.  He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection.  In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.

[25]          In my view, this case is analogous to the application of Fontaine in Hall v. Cooper Industries, Inc., 2005 BCCA 290 at para. 59, 40 B.C.L.R. (4th) 257: “[the appellant] did not establish aprima facie case of negligence which caused the accident.  Therefore the case never reached the point where [the respondent] was required to produce ‘evidence to the contrary.’”

[26]          The trial judge’s conclusion that the evidence was equally consistent with the possibility that the rock was “somewhere in the middle of the load but near the front, where it could have eluded detection without negligence” as with the possibility that it was somewhere it ought to have been discovered, is consistent with the trial judge having considered the question of whether the accident would ordinarily occur without negligence.  His conclusion was that the accident was equally as likely to have occurred without negligence as with it.

Motor Vehicle Cases and Expert Reports Addressing Fault

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I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

Could You Be At Fault For A Crash If You Have the Right of Way?

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The short answer is yes, and reasons for judgment were released by the BC Supreme Court (Bain v. Shafron) today discussing this legal principle.
In today’s case a collision occurred over 8 years ago in Vancouver, BC.  (the reasons why the case took over 8 years to get to trial are discussed in the judgment).  The Defendant entered an intersection on a green light.  While there she yielded to a bus that was trying to make a left hand turn.  By the time the bus cleared the intersection the Defendant’s light turned red.  The Plaintiff, then approaching from the Defendant’s right, entered the intersection on a green light and a collision occurred.   
Despite entering on a green light Madam Justice Fisher of the BC Supreme Court found the Plaintiff to be 100% responsible for this collision and dismissed the claim.
In doing so she discussed the law relating to collisions and the duties of driver’s with the right of way as follows:

[11]            As I explain below, I have found that Ms. Shafron lawfully entered the intersection of Oak and Broadway.  Accordingly, she had a statutory right of way under s. 127(1)(a)(iii) of the Motor Vehicle Act and Mr. Bain was obligated to yield to her right of way when he entered the intersection:

127 (1) When a green light alone is exhibited at an intersection by a traffic control signal,

(a)        the driver of a vehicle facing the green light

(iii)       must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited …

[12]            Ms. Shafron as the driver of the vehicle with the right of way was the dominant driver and Mr. Bain was the servient driver.  A dominant driver does not lose that position by unreasonable actions but the existence of a right of way does not entitle the dominant driver to disregard an apparent danger: Atchison v. Kummetz, (1995), 59 B.C.A.C. 81 at para. 19, Abbott Estate v. Toronto Transportation Commission, [1935] S.C.R. 671.  There is a duty of care to avoid a collision when the dominant driver sees or ought to see that the other driver is not yielding the right of way: Bedwell v. McGill, 2008 BCCA 6.  In order for the plaintiff in this case to prove that the defendant was negligent, Mr. Bain must establish that Ms. Shafron should have become aware that he was not yielding and that she had a sufficient opportunity to avoid the collision.  Any doubts should not be resolved in favour of the plaintiff: Walker v. Brownlee, [1952] D.L.R. 450 (S.C.C.) at para. 50, Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347, Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75.

[13]            The standard of care of a driver is not one of perfection, but whether the driver acted in a manner which an ordinarily prudent person would act: see Hadden v. Lynch, 2008 BCSC 295 at para. 69 and the cases cited therein.

The principles summarized by Madam Justice Fisher are something all BC motorists should be familiar with.  Just because you have a green light (or otherwise have the right of way) does not necessarily mean you are not at fault for a collision.  If you are a ‘dominant driver’ and can reasonably avoid a collision where someone is not yielding to your right of way you may be negligent and liable for the crash.

ICBC Injury Claims and Fault

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

If a Court finds that 2 or more people are responsible for a motor vehicle collision in British Columbia the Court must ‘apportion’ liability as between them.  How does the court do this?  What factors are considered when determining the percentage of blame to put on each at fault party?  
Reasons for judgement were released today by the BC Supreme Court (Mills v. Seifred) addressing this topic. 
Today’s case involved a tragic accident between a motorcycle and a dump truck on September 1, 2005 in Langley, British Columbia.  The truck turned in front of the motorcycle driver.  It appears, based on the style of cause, that the motorcycle driver was killed as a result of this impact.
The court found that the motorcyclist was careless and contributed to the collision.  He was travelling in a 60 kmph zone and the court found that he was travelling some 90 kmph at the time of impact.  The court determined that this contributed to the collision because “speed removes options for effective collision avoidance manoeuvres….there can be no doubt that (the Plaintiff’s) excessive speed played a causative role in the occurrence of the accident“.
The court also found that the Dump Truck Driver was careless because he ‘did not take sufficient time or care to keep a sharp lookout at the on coming traffic just before committing to the left turn.’
In determining that the Dump Truck driver was 65% to blame for the crash and the Plaintiff 35% the Court summarized and applied the law as follows:

[97]            Where, as here, the fault of two or more persons combine to cause a loss, liability will be apportioned.  Apportionment is governed by the Negligence Act, R.S.B.C. 1996, c. 333.  The relevant provisions are set out below:

s.1 Apportionment of liability for damages

(1)        If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2)        Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3)        Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed.

s.4 Liability and right of contribution

(1)        If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault.

…

s.6 Questions of fact

In every action the amount of damage or loss, the fault, if any, and the degrees of fault are questions of fact.

[98]            In assessing apportionment, the court examines the extent of blameworthiness, that is, the degree to which each party is at fault, and not the degree to which each party’s fault has caused the loss.  Put another way, the court is not assessing degrees of causation, rather, it is assessing degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 [Cempel]; Aberdeen v. Langley (Township), 2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta, 2008 BCCA 420. 

[99]            In Alberta Wheat Pool v. Northwest Pile Driving Ltd., [2000] 80 B.C.L.R. (3d) 153, 2000 BCCA 505, Finch, J.A. (now the Chief Justice), for the majority of the Court of Appeal, explained this important principle at paras. 45-47:

In my view, the test to be applied here is that expressed by Lambert, J.A. in Cempel, supra, and the court’s task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.

Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care.  Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[100]        In Aberdeen, Groves J. provided insight into the difficulty that the court faces in quantifying the concept of blameworthiness under the Negligence Act.  At para. 62 he endorsed the enumeration of factors in assessing relative degrees of fault set out by the Alberta Court of Appeal in Heller v. Martens, as follows:

1.         The nature of the duty owed by the tortfeasor to the injured person…

2.         The number of acts of fault or negligence committed by a person at fault…

3.         The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault…

4.         The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy… Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis…

5.         The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy…

[Authorities omitted.]

[101]        To the foregoing factors, Groves J. added the following at para. 67:

6.         the gravity of the risk created;

7.         the extent of the opportunity to avoid or prevent the accident or the damage;

8.         whether the conduct in question was deliberate, or unusual or unexpected; and

9.         the knowledge one person had or should have had of the conduct of another person at fault.

[102]        After surveying the authorities, Groves J. summarized at para. 67 the approach to be taken in assessing the relative degree of blameworthiness of the parties:

Thus, the key inquiry in assessing comparative blameworthiness is the relative degree by which each of the parties departed from the standard of care to be expected in all of the circumstances. This inquiry is informed by numerous factors, including the nature of the departure from that standard of care, its magnitude, and the gravity of the risk thereby created.

[103]        On appeal, the decision in Aberdeen in relation to the issue of contributory negligence was remitted for retrial.  However, the Court of Appeal did not criticize Mr Justice Groves’ careful summation of the governing legal principles on apportionment.

[104]        Mr. Cavezza continued in the oncoming lane at an excessive speed in order to pass a trail of vehicles long after the dividing line for eastbound traffic had become solid.  He persisted in doing so on his approach to the Eastbound Hill, which would have hampered his view of oncoming traffic, and after the appearance of double solid lines which would tell him that the oncoming traffic had impaired visibility his way.  He did not take advantage of the openings in the line of eastbound vehicles to merge earlier; had he done so, there would have been no accident.  Instead, Mr. Cavezza chose to merge near the brow of the Eastbound Hill and once in the lead, maintained an excessive speed.  In assessing the degree of Mr. Cavezza’s blameworthiness, I have borne in mind the fact that traffic as a whole speeds along that segment of 16th Avenue.  Even so, it cannot be overlooked that Mr. Cavezza’s deliberate conduct violated, in a substantial way, the expected standard of care of a user of that road in those circumstances.  He showed a reckless disregard for the safety of fellow users and created a substantial level of risk for himself and others.

[105]        Turning to Mr. Seifred’s fault, the law imposes upon him a very high degree of care to observe caution in crossing double solid lines.  Although he was not speeding, he did not come to a complete stop or likely even hesitate prior to crossing the oncoming lane and cut the driveway at a 45 degree angle.  Mr. Seifred travelled 16th Avenue frequently and is taken to know that speeding vehicles along that route were more the rule than the exception.  Had he kept the sharp look-out reasonably expected of him, he would have seen Mr. Cavezza advancing in the eastbound lane and would not have initiated his turn in such patently unsafe circumstances.  Mr. Seifred breached his duty to take reasonable care to a severe degree and created a grave risk for himself and a fatal one for Mr. Cavezza.  

[106]         In all the circumstances, I consider Mr. Seifred’s conduct more blameworthy than Mr. Cavezza’s.  I apportion liability 65% against Mr. Seifred and 35% against Mr. Cavezza.

More Snow in BC….More Advice in dealing with ICBC

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC No-Fault (Part 7) Benefits. 60 Comments on More Snow in BC….More Advice in dealing with ICBC

Its now mid March and like many others I welcome Spring coming and coming fast but its snowing again in Victoria, BC.
With yet another snowfall I thought I’d repost a previous blog entry dealing with single vehicle weather related collisions and ICBC claims. 
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.