BC Court of Appeal Clarifies Law Regarding Loss of Vehicle Control

In an important judgment released today by the BC Court of Appeal, the law relating to what inferences a court can draw regarding liability (fault) when a vehicle leaves its lane of travel was clarified.
As in many areas of law, there were some competing authorities addressing this topic and today’s judgment reconciled these. For anyone advancing a tort claim as a result of a single vehicle accident in BC this case is must reading.
In 2002 the Plaintiff’s were injured when the driver of their vehicle lost control in winter driving conditions. The accident was significant. The truck “traversed a bridge, travelled about ten feet after leaving it, and then rolled over and landed on its wheels below the road, resulting in injury to the Plaintiffs“.
The Plaintiffs sued several parties as a result of this accident, most importantly the driver of the vehicle. The Trial Judge found that the Plaintiffs “had failed to prove negligence on (the drivers) part” and that the driver “had driven with reasonable care and that any presumption of negligence arising from his loss of control was rebutted by his explanation that the truck had fishtailed when it went over a bump between the road surface and a bridge.”
The Court of Appeal upheld the trial judgement. In doing so some important clarifications in the law were made.
The Appellant sought to rely on the judgment of Savinkoff v. Seggewiss, in which the court held that “sliding out of control…gives rise to an inference of negligence…in that (the driver) was either not sufficiently attentive to the road conditions, or he was driving too fast, or both.” In Savnikoff the court quoted with approval a passage from an old case where it was held that “if roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace“.
In today’s judgment the Court of Appeal referred to the authoritative judgment of Fontaine v. British Columbia. In that decision the Supreme Court of Canada held that “(the bald proposition that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single vehicle accident) ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstces of each case“.
The Court reconciled the Fontaine and Savinkoff decisions as follows:
If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the matter suggested, I believe the decesion has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to ‘explain’ how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at paragraph 53 of her reasons, such an inference will be ‘highly dependant on the facts’ of the case and the explanation required to rebut it will ‘vary in accordance with the strength of the inference sought to be drawn by the plaintiff.
Bottom Line: If a driver loses control of a vehicle he/she is not automatically at fault nor is there a shifting of the burden of proof. The court simply MAY draw the inference that he/she is at fault and whether it is appropriate to do so is ‘highly dependant on the facts of each case’.

"No Impact Crash" Nets $40,000 Pain and Suffering Award

In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.

Snow, Ice, and your ICBC Claim

Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
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 maintenence 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 “inetible 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.

What's All This Then? Interpreting Police Accident Reports

ICBC tells you you are at fault and you disagree. What do you do? You gather as much information as possible in support of your claim.
One of the main sources of information to examine is the BC Motor Vehicle Traffic Accident Police Investigation Report (the “Report”). Assuming the police attended the accident scene a copy of this report should have been provided to all motorists involved.
These reports often contain valuable information such as the names of all involved, the exact location of the accident, the names of witnesses and if any charges were laid. If charges were laid, the section of the Motor Vehicle Act that was allegedly violated is often cited in the report. It is a good idea to look up the exact section cited to see what the police allege against the other motorist.
Other information contained the report is coded and most ICBC lawyers know how to intepret this. I thought I would highlight some of the more important codes to share this useful information with my readers.
On the right hand side of the the Report are typed numbers. Assuming you were involved in a two vehicle collision fields 31-33A relate to the first motorist mentioned in the report and fields 34-36A relate to the second motorist mentioned in the report.
The police then fill in these fields with codes for all the “contributing factors” to the collision. Here is what some of these codes mean:
HUMAN CONDITION
16 = extreme fatigue
19 = fell asleep
22 = illness
23 = Sudden Loss of Consciousness
26 = Pre-existing physical disability
80 = Ability impaired by Alcohol
81 = Alcohol suspected
82 = Ability impaired by drugs
83 = Drugs Suspected
84 = Ability impaired by medication
85 = Driver inatentive
86 = Driver internal / external distraction
87 = Deceased prior to colliison
HUMAN ACTION
11 = Backing unsafley
12 = Cutting in
17 = Failing to Signal
18 = Failing to yield the right of way
20 = Following too closely
21 = Improper Passing
24 = Driving on wrong side of road
25 = Pedestrian error / confusion
29 = Ignoring traffic control device
30 = Improper turning
32 = Ignoring officer / flagman / guard
33 = Avoiding vehicle / pedestrian / cycle
34 = Use of Communication / video equipment
35 = Exceeding speed limit
36 = Excessive speed over 40 KH Hour
37 = Driving too fast for conditions
38 = failure to secure stopped vehicle
39 = Driver error / confusion
In additon to the above, the police can code in various factors for “Environmental Conditions” or “other” conditions that contributed the the accident.
I should note that police officers who fill out these reports rarely witnessed the collision themselves and often their allegations of what happened are inadmissible hearsay evidence. It is important to track down all witnesses who can verify these allegations so that there is a source to provide admissible evidence should your ICBC claim ever go to trial.
These reports are a valuable source of information when advancing ICBC claims and it is important for you or your ICBC lawyer to properly interpret these reports to properly advance an ICBC claim.
If you have any questions about your ICBC claim or some of the codes contained in a BC Motor Vehicle Traffic Accident Police Investigation Report feel free to contact the author for help.

Taxi Driver found 10% At Fault For Leaving High Beams On

In a judgement released today by the British Columbia Supreme Court, Madam Justice Humphries concluded that a taxi driver was 10% at fault for 2 young girls’ injuries because he left his high beams on thus obstructing the view of on-coming traffic in the early morning of September 6, 2003 in Langley, BC.
The taxi did not hit the girls, rather, the taxi driver’s fault rested with the fact that he stopped his taxi on the side of the highway to engage some potential passengers in conversation with his high beams on. The passengers were a group of 5 young people who had left a party and were looking for a taxi ride home. The taxi driver declined to give this group of 5 people a ride because his vehicle only had 4 available seatbelts.
After being rejected by the taxi driver the young people headed back across the street into the lane of westbound traffic. Unfortunatley the driver of a vehicle driving in the westbound lane failed to see the people and struck 2 young girls with her vehicle.
The court found that the girls, the taxi driver, and the westbound vehicle were all partly at fault. In assessing 10% of the blame to the taxi driver Madam Justice Humphries stated “He did not keep a lookout for oncoming traffic and he left his high beams on. This constitutes a departure of the standard of care expected of a prudent driver and was a contributing cause of the accident.
If a person in British Columbia is partially to blame for an accident, it is important to seek compensation from all others who are at fault. Failing to do so will result in the Plaintiff receiving less than full compensation for injuries caused by the fault of others. This is called “several liability”. This decision is a great illustration of Plaintiff’s counsel seeking compensation from all those responsible for car accident related injuries. Had the taxi driver not been sued, on this reasoning, the young girls would have had the value of their claim reduced a further 10 percent.
Feel free to contact the author if you have questions about several liability and a current ICBC claim.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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