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More on Collisions Involving Emergency Vehicles

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UPDATE June 5, 2014 – This decision was overturned on appeal with the Defendant being found fully at fault
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As previously discussed, when an emergency vehicle is responding to a call and is involved in a collision fault does not automatically rest with the other vehicle.   All of the circumstances surrounding the collision must be examined.  Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing this area of law.
In last week’s case (Maddex . Sigouin) the Defendant was travelling a few car lengths behind the Plaintiff police officer.  The Plaintiff detected a speeding oncoming vehicle, activated his lights, and attempted a U-Turn at the approaching intersection.   To do so he had to cut across from the left hand lane in which he was travelling, through the designated left had turn lane and into his turn.  The Defendant did not have time to react safely, hit his brakes and also turned into the left hand turn lane in the hopes of avoiding contact.  Ultimately the Court found both motorists equally responsible for the crash.  In reaching this decision Mr. Justice Williams provided the following reasons:
[43]         It is my conclusion that Mr. Sigouin was not paying sufficient attention as he was driving and that he was positioned too close behind the police car, taking into account the speed and the limited maneuverability of his vehicle. By the time he recognized the necessity to react to the police car slowing in his lane, it was too late to safely slow down behind that vehicle. As a result, he was forced into an emergency maneuver which entailed passing the police vehicle. He did not believe it was safe to pass on the right and so he elected to pass on the left which necessitated him moving into the left-turn bay to get past the police car. It is clear that he did not see the flashing emergency lights and react to them in a timely and responsive way. My conclusion that he was not paying sufficient attention is buttressed by the fact that the vehicle he evidently failed to notice was a prominently marked police car displaying flashing lights. It is clear from the evidence that Mr. Sigouin knew that this was a police car because he testified that he made that observation a short time earlier and that he took measures to situate himself so that he was travelling behind that car.
[44]         As for the plaintiff, he initiated a turn, essentially a U-turn, from the number 2 lane. He satisfied himself that could be done safely with respect to the oncoming traffic. However, he appears not to have appreciated that his maneuver could not be safely executed because there was another vehicle following fairly close behind him.
[45]         Further, he initiated his maneuver not from the left-turn bay, but rather from the number 2 lane, a position which made it less apparent that he was going to turn left.
[46]         I accept that the plaintiff was displaying his emergency lights and it would be apparent to any other motorist that he was engaged in some sort of official emergent duties on the roadway. As I indicated earlier, other drivers are expected to yield to such vehicles.
[47]         However, it is abundantly clear from the legislation that displaying emergency equipment, whether lights or lights and siren, does not afford a shield of invincibility or absolute right. Even when an emergency vehicle has that equipment fully deployed, there is an overriding obligation on the operator of the emergency vehicle to ensure that any driving activity be conducted in a safe fashion vis-à-vis other persons on the roadway.
[48]         In the present case, that required the plaintiff to be sure that his U-turn could be executed in safety. He ought to have been aware of the fact that the defendant’s vehicle was following him, fairly close behind; he ought to have checked behind him.
[49]         It is evident that he did not do so.
[50]         In the circumstances, I find that both of the drivers, the plaintiff and the defendant Mr. Sigouin, were negligent in this collision.
[51]         As for allocation of fault, I find each to be similarly responsible, and I apportion liability equally, that is, 50 percent for each of them.

Stationary Vehicle Partly At Fault for Rear End Crash For Failing to Engage Hazard Lights

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Last week the BC Court of Appeal addressed fault for a crash between an impaired driver and a stationary vehicle.  In last week’s case (Hansen v. Sulyma)  the stationary vehicle had run out of gas and pulled off the roadway.   Shortly thereafter another motorist, who had been drinking in excess at a nearby pub, lost control and drove into the stationary vehicle.  While the Court found the impaired driver mostly at fault the driver of the stationary vehicle was also found party to blame.  In reaching this conclusion the BC Court of Appeal provided the following reasons:
[5]             When the Honda was a couple of kilometres away from the terminal, its engine “spluttered” and then stopped.  Mr. Sulyma steered it off the paved portion of the road and onto the shoulder.  He testified that they were stopped on a straight stretch.  He telephoned one of his sisters who lived on the Island and she agreed to bring gas to where the Honda was stranded.  Ms. Hansen phoned home to tell her son that she and Mr. Sulyma would not be back to Powell River until the next day.
[6]             While they were stopped, Ms. Hansen testified that she asked Mr. Sulyma to put on the car’s “flashers” or hazard lights, but he told her that was “silly”.  The lights were left off.  After a few minutes, Mr. Sulyma tried the ignition again and the car started.  He pulled out onto the road and they were able to drive a short distance, but the engine then spluttered and died again.  The trial judge accepted the testimony of both Mr. Sulyma and Ms. Hansen that he steered the vehicle onto the shoulder such that it was parked “entirely on the shoulder of the road, and no part of the vehicle was located on the paved portion of the roadway.”  (Para. 31.)  Although parts of Mr. Leprieur’s statements to the police were to the contrary, other portions of his statements led the trial judge to infer that he had had no memory of where the Honda had been parked.  The trial judge found that the car was “at what counsel have referred to as the ‘apex’ or middle point of a left-turning (for northbound traffic) curve in the highway.”  (Para. 35.)..
[17]         With respect to Mr. Sulyma, the trial judge was satisfied he had failed to meet the applicable standard of care by failing to activate the hazard lights on Ms. Hansen’s vehicle or otherwise illuminating lights that would have made the Honda more easily noticeable to drivers.  As for causation, the Court found this failure “caused or contributed to the collision” and that had the lights been on, Mr. Leprieur would likely have been alerted to the presence of the Honda earlier than he was.  The trial Judge continued:
… Even if Mr. Leprieur’s ability to react was slowed by the excessive amount of alcohol he had consumed and he was being inattentive, flashing lights would probably have caught his attention before the vehicle itself became visible.  An earlier warning of the presence of the Hansen vehicle would, I conclude, have allowed Mr. Leprieur time to stop accelerating or possibly even slow his vehicle, and thereby reduce the force of the impact and the severity of Ms. Hansen’s injuries.  [At para. 78; emphasis added.]

 …
[30]         Moving on to the question of standard of care, Ms. Wright contends that the standard imposed by the trial judge on Mr. Sulyma was “too high in law”.  She emphasizes that the Hansen car was parked off the paved portion of the road.  Can it be correct, she asks, to require a person in Mr. Sulyma’s position to have activated the hazard lights in order to avoid the risk posed by a driver who is drunk, speeding, and accelerating on a trajectory off onto the shoulder?  Ms. Wright observes that this is the first case of which she is aware in which the driver of a vehicle that is parked completely off the road has been held to be negligent for failing to put on his or her hazard lights.
[31]         Mr. Cowper responds ? correctly in my view ? that Ms. Wright’s objections are to the trial judge’s findings of fact rather than to any legal principle she applied.  The question in every case is whether the person has taken reasonable care in all the circumstances.  There is no rule of law to the effect that any driver who parks his car off the road may rest assured that he or she need not activate the vehicle’s hazard lights.  It all depends on the circumstances.  In this case, although the Honda was off the road, it was a dark and misty (if not foggy) night, the road was not illuminated, the car was in the apex of a curve, and Mr. Sulyma and Ms. Hansen were sitting in the vehicle.  As the Court stated in Thornhill v. Martineau (1987) 39 C.C.L.T 293 (B.C.S.C.), even though a vehicle is legally parked, it may create a danger which ought to be foreseen by its driver.
[32]         The trial judge in the case at bar implicitly concluded that it was reasonably foreseeable that a driver coming around the curve would swing wide ? a conclusion of fact that in my view has not been shown to be clearly wrong.  (It was not necessary in this regard to show that Mr. Sulyma ought to have foreseen that an intoxicated driver would speed around the curve.)  I note that this case is substantially different from that inCawson v. Quandt 2001 BCCA 210, where this court reversed a trial judge’s finding that a driver who had encountered deer on the road and, while remaining in the lane of traffic, had stopped his truck to let them cross, had been negligent in failing to turn on his hazard lights.  The trial judge had imposed 15% liability on the defendant for this reason, but the Court of Appeal allowed his appeal on the basis that the trial judge had imposed “an unreasonable standard imposing almost a warranty upon the defendant.”  (Para. 4.)  For purposes of the case at bar, it is important to note that the defendant in Cawson had his headlights and running lights on at all times (see para. 49 of the trial judge’s reasons; [1999] B.C.J. No. 1341).
[33]         In my opinion, this ground of appeal must fail.

BC Court of Appeal Finds Pub 20% At Fault for Overserving Patron Who Caused a Vehicle Collision

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Adding this site’s archived cases addressing commercial host liability, reasons for judgement were released this week by the BC Court of Appeal addressing the blameworthiness of a pub who overserved a patron who then drove drunk and caused a catastrophic collision.
In this week’s case (Hansen v. Sulyma) the Plaintiff was a passenger in a vehicle that ran out of gas and was parked off the side of the road.  At the same time the Defendant, who had been drinking excessively at a nearby pub, “approached from behind, swung wide and hit their car.”  The crash had catastrophic results rendering the Plaintiff quadriplegic.
The motorist was found largely responsible for the crash but the BC Court of Appeal also allocated 20% of the blame to the pub.  In addressing their blameworthiness for over serving a patron the Court provided the following reasons:
[1]             …Mr. Leprieur had spent the evening drinking at a nearby pub and was highly intoxicated.  Employees at the pub had not made any effort to cut off his liquor or to see that he did not get into a motor-vehicle when he left the pub…
[10]         The vehicle that struck the Hansen car was a Ford Explorer being driven by Mr. Leprieur.  He had taken the ferry to Texada Island on the afternoon of November 29 to “hang out” and play some pool at the pub.  After the ferry docked at 4:00 p.m., he went to the pub, arriving between 4:30 and 5:00, and stayed until about 9:45.  There, he ran up a tab in excess of $100 (including some drinks purchased for others).  The trial judge found that he had likely consumed at least six rye whiskeys mixed with water, each consisting of not less than two ounces of alcohol.  The drinks were first served by Ms. Ricki James, the sole bartender on duty when Mr. Leprieur arrived.  She went off duty at 7:00 p.m., when the defendant Ms. Morris took over, again as the sole bartender and server.  Both are employed by the defendant numbered company of which the defendant Mr. de Vita is president and an employee.  He was not present on November 29.
[11]         When Ms. James went off duty, she did not tell Ms. Morris how long Mr. Leprieur had been drinking and Ms. Morris did not ask.  She did note there were three or four double ryes on Mr. Leprieur’s tab.  Ms. James observed that Mr. Leprieur was “fine” when she went off shift, but also said he was “catching a little buzz on”.  Ms. Morris served Mr. Leprieur three more ryes, throwing out the remnants of the third after he left the pub at about 9:45 p.m.  The trial judge continued:
The pub was busy and Ms. Morris did not pay much attention to Mr. Leprieur, but she did not observe him showing signs of being “an extremely drunk person, such as falling down or slurring his words”.  However, a patron in the pub offered to pay for a room at the Texada Island Inn for Mr. Leprieur, from which I infer that others were able to observe signs of impairment.
Mr. Leprieur got into his Ford Explorer and headed north on Blubber Bay Road intending to catch the last ferry.  When interviewed by Constable Rogers, he seemed vague about the departure time for that ferry, but I am satisfied that Mr. Leprieur probably knew that he had left himself very little time to get to the ferry terminal, and that he was likely driving in excess of the posted speed limit.
Ms. Hansen’s testimony about the sounds made by Mr. Leprieur’s vehicle as it approached and the extent of the damage to the two vehicles indicates that Mr. Leprieur’s vehicle was travelling at a high rate of speed when the impact occurred.  The right front of by Mr. Leprieur’s Ford Explorer struck the rear left side of the Accord.  The damage to the front of the Explorer indicates more than half of the front of that vehicle came into contact with the Accord, and although the damage to the rear of the Accord is worse on the left side than the right, the entire back of that vehicle is destroyed. [At paras. 51-3.]
[12]         The RCMP officer who attended the accident recorded that Mr. Leprieur had glassy eyes, was unsteady and smelled of alcohol.  Mr. Leprieur provided a breath sample at 1:26 a.m. which indicated a blood alcohol level of .12.  According to the blood alcohol consultant that level would have been between .147 and .167 at the time of the collision.
[36]         The law is clear, of course, that this court may not interfere with a trial judge’s apportionment of liability under the Negligence Act, R.S.B.C. 1996, c. 333, unless there are “very strong and cogent reasons” for doing so: see Moses v. Kim 2009 BCCA 82 at para. 33.  Even given this stringent standard, however, I am persuaded that the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations.  We were referred to various cases involving host liability to injured third parties, including Menow v. Honsberger [1974] S.C.R. 239 (S.C.C.) and Laface v. McWilliams 2005 BCSC 291. In Laface, Kirkpatrick J. (as she then was) in turn quoted at para. 187 a passage from a judgment of Mackenzie J. in Lum (Guardian ad litem of) v. McLintock (1997) 45 B.C.L.R. (3d) 303 (B.C.S.C.), where she stated:
In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage … [At para. 27.]
In all the cases of commercial host liability to which Ms. Wright referred us, liability of between 78% and 28.5% was apportioned to defendants in the position of the pub defendants in this instance.
[37]         Notably, counsel for Mr. Sulyma made no submission at trial as to what portion of blameworthiness should be allocated to these defendants.  The plaintiff submitted that the figure should be 5% and the trial judge simply adopted that submission, apparently without considering the precedents in this province that augur in favour of a considerably higher apportionment.  Moreover, the trial judge’s suggestion that she would have allocated 75% of the liability to Mr. Leprieur if only two parties had been involved, and her effectively “crediting” him with the 5% seems illogical, with all due respect.   The proper course was for the trial judge to consider the relative fault of all three parties (assuming, as counsel agreed, that the pub defendants could be treated as one for the purposes of this determination) and to determine the relative blameworthiness of each in comparison to the others.
[38]         I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.

Driver Fully At Fault For Striking Pedestrian Standing on Street Side of her Vehicle

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorist lost control in winter driving conditions.
In this week’s case (Lee v. Phan) the Plaintiff was struck by the Defendant’s vehicle as she was standing on the street side of her own vehicle.  The Plaintiff was retrieving groceries from her car and had to walk around the street side of her vehicle as there was a snow bank preventing her from walking to the sidewalk past the rear of her vehicle.  At the same time the Defendant was driving and was concerned the Plaintiff was going to jaywalk in front of his vehicle.   He hit his brakes and ended up steering into the plaintiff.  The Court found the Plaintiff was not about to jaywalk and the Defendant’s actions were negligent. In assessing fault fully with the Defendant Mr. Justice Blok provided the following reasons:
[50]         I find that Ms. Lee did not attempt to jaywalk across Renfrew Street, nor did she intend to do so.  There was no evidence to support this other than Mr. Phan’s impression that this is what “the shadow” seemed to be about to do.  I conclude that Mr. Phan’s impression was an erroneous one…
[56]         Both parties cited a number of cases involving collisions with pedestrians at crosswalks or collisions where wintery conditions were a significant factor.  In view of my finding that Ms. Lee made no attempt to cross Renfrew Street I do not find the crosswalk or jaywalking cases to be particularly helpful.  The winter driving cases establish little more than the general proposition that drivers should adjust their driving and use caution appropriate to the conditions…
[64]         Mr. Phan testified that he turned his vehicle into the snowbank because he felt this was his only option given his conclusion that Ms. Lee was about to jaywalk in front of him.  This, I have found, was an erroneous conclusion.  Had he continued straight ahead there would have been no collision.  Mr. Phan also seems to have been under the impression that one should never apply the brakes of a vehicle in icy conditions.  This is obviously wrong, as the appropriate response is to apply cyclical braking, as confirmed by the plaintiff’s engineer, Mr. Rempel.  For all of these reasons I conclude that Mr. Phan was negligent.
[65]         As for Ms. Lee, I am unable to accept the defendant’s suggestion that she ought to be found to be contributorily negligent.  She was not in a place that posed a hazard or obstruction to traffic, she was wearing a white coat and she was facing in the correct direction towards oncoming traffic.  The defendant has not established that Ms. Lee had any realistic opportunity to get out of the way.  I see no negligence on her part.
 

Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Hip Injury Cases, ICBC Liability (fault) Cases.

Adding to this site’s archives addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In this week’s case (Wong v. South Coast British Columbia Transportation Authority) the 81 year old plaintiff boarded a bus and was on her way to her seat when “the driver pulled into traffic in an abrupt motion“.    The Plaintiff fell and the driver then “abruptly braked“.  The Plaintiff’s hip was fractured in the incident.
Madam Justice Power found the bus driver was negligent in failing to wait until the elderly plaintiff was seated before accelerating.  In finding the driver partly liable for the incident the Court provided the following reasons:
[25]         In cross-examination, Mr. Pinnell conceded that “it was surprising” that Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle.  He acknowledged that if he had seen Ms. Wong, he would have told her to sit down.  He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location.  He acknowledged that at examination for discovery he did not think such a policy was in place…
[40]         In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing.  In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11.
The Plaintiff’s fractured hip required surgical intervention.  Despite having an ‘uneventful’ recovery she was left with permanent restrictions in mobility.   The Court went on -to assess non-pecuniary damages at $90,000 before slightly reducing these for contributory negligence.

Why An Acquittal of Criminal Charges Is No Barrier to a Civil Negligence Case

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If the OJ Simpson saga taught us anything it is that being acquitted of criminal charges does nothing to stop a civil action for damages from proceeding.  Reasons for judgment were released last week by the BC Supreme Court, Vernon Registry, demonstrating this.
In the recent case (McClusky v. Desilets) the Plaintiff was profoundly injured in a single vehicle collision in 2008.  The driver was charged with dangerous driving under the Criminal Code.  The case proceeded to trial where he was acquitted.  The Defendant then sought to have the lawsuit by the injured plaintiff against him dismissed arguing that “the issue of liability was determined when he was acquitted of criminal charges“.
Mr. Justice Steeves quickly dispatched this argument, finding the matter could proceed and ultimately determined that the defendant was negligent in causing the collision.  In addressing the Defendant’s argument the Court provided the following reasons:
[153]     With regards to the criminal charges against the defendant, he was charged with dangerous driving causing death and dangerous driving causing bodily harm. A trial was held in November 2010 and, on December 3, 2010, Mr. Justice Dley acquitted the defendant on all charges. Among other findings he concluded that there were insufficient factors on speed that would elevate the facts of the case to the level of a criminal offense. As a result it was not possible to conclude beyond a reasonable doubt that the defendant’s driving was objectively dangerous. Further, in reviewing all the evidence, the trial judge concluded that the defendant’s driving was not a marked departure from the standard of care that a reasonable person would observe in his circumstance (paras. 59, 61).
[154]     It is now submitted on behalf of the defendant in this civil action that the issue of liability has been decided in his favour by the previous criminal proceedings. That is, he is not liable for the accident and the injuries to the plaintiff.
[155]     The approach of previous decisions on this issue have focused on issue estoppel (Petrelli v. Lindell Beach Holiday Resort Ltd. 2011 BCCA 367 at para. 63; citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25). With regards to issue estoppel there are three preconditions: the same question has been decided in the previous proceeding, the previous decision was final and the parties in both proceedings are the same. In the subject case, the parties are not the same as the criminal proceeding and the issues of criminal negligence causing death and dangerous driving causing bodily harm are not the same issues as the civil liability of the defendant here. On this basis issue estoppel has no application.
[156]     With regards to abuse of process, such an abuse has been found where an arbitrator was asked to re-litigate whether an employee was guilty of a criminal sexual assault. A previous criminal court had convicted the employee. The arbitrator found that that the employee had not committed the sexual assault and the courts set this decision aside (Toronto (City) v. CUPE (2001), 55 O.R. (3d) 541,149 O.A.C. 213).
[157]      In the subject case, again, the defendant was acquitted of criminal charges with regards to the same incident that gave rise to this civil action. However, the cause of action in the latter is based in negligence not in the Criminal Code. I am not re-litigating whether the defendant committed a criminal offence, as was apparently the case in Toronto (City).
[158]     I find that it is not an abuse of process for the plaintiff to seek civil damages against the defendant when the defendant had previously been acquitted of criminal charges.

Traffic Signal Sequence Evidence Resolves Liability Dispute

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating the potential value of traffic signal sequence evidence following an intersection collision.
In this week’s case (Kuma-Mintah v. Delange) the Plaintiff and Defendant were involved in an intersection collision.  The Plaintiff was heading westbound through a T-intersection.  At the same time the Defendant was attempting a left hand turn.  Both motorists claimed to have a green light arguing the other was to blame.  Evidence of the intersections traffic signal sequence ultimately proved important in resolving the dispute.

The Defendant initially gave evidence that she was stopped at the intersection for 30 seconds before the light turned green.  However traffic signal sequence evidence demonstrated that the vehicle would have only had to wait 11.3 seconds before changing sequence.  This ultimately undermined the reliability of the Defendant’s evidence.  In highlighting the significance of this evidence Mr. Justice Walker provided the following reasons:
[19]         Ms. Delange claims to have been stopped facing south at the Intersection on a red traffic signal. She said that she waited to turn left to head eastbound on the Lougheed Highway before the signal facing her turned to green. Once the traffic signal facing her turned to green, she proceeded slowly into the Intersection. As she did, she heard her husband, who was sitting behind her in the passenger seat on the left side of the vehicle, yell out that Mr. Kuma-Mintah’s vehicle was not going to stop. The collision occurred.
[20]         There was a period of time while she was giving evidence during the trial when Ms. Delange sought to move away from her wait-time estimate of 30 seconds that she gave at her examination for discovery. Her discovery evidence was very clear on the point. She also suggested the possibility that other vehicles were present at or near the Intersection. The evidence from the traffic engineer concerning the traffic signal sequence for the Intersection, which was not expert evidence, became known to Mr. Kuma-Mintah’s counsel only a few days before the trial began and to defence counsel shortly before the start of the trial (no adjournment of the trial was sought by the defence). While I do not consider that Ms. Delange, in providing new evidence suggesting a different wait-time and the possibility of other vehicles at or near the Intersection, was attempting to provide dishonest or misleading testimony following the recent disclosure of the traffic engineer’s evidence, her attempt to explain away her very clear discovery evidence was indicative of her ongoing struggle to comprehend how the accident could have occurred. I accept that she was trying to provide an overall account that she thought was truthful; it was, however, an account that was premised on post hoc reasoning…
[24]          Ms. Delange’s vehicle was the only one present at or near the Intersection that could have triggered any of the embedded traffic sensors. And as I have pointed out, I find that other than Ms. Delange’s vehicle, there was no traffic on the Lougheed Highway or United Boulevard during the relevant time before the accident occurred that would have made any difference to the traffic signals affecting Mr. Kuma-Mintah. That means that if Ms. Delange was stopped at the Intersection as she claims, then she would have been waiting for only 11.3 seconds, and not 30 seconds, before she could proceed to make her left-hand turn. Her vehicle would have automatically triggered the various traffic signals controlling the Intersection to change in accordance with the sequence design….
[29]         I find that Ms. Delange proceeded into the Intersection on a red traffic signal and collided with the vehicle being driven by Mr. Kuma-Mintah, contrary to s. 129(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Mr. Kuma-Mintah was entitled to proceed through the Intersection on a green traffic signal pursuant to s. 127(1). I accept his explanation that there was insufficient time for him to have taken evasive action.
[30]         My findings are made on a balance of probabilities. My determination of fault is premised on the clear objective evidence concerning the sequence design of the traffic signals and the evidence of the accident reconstruction expert contained in his report. My determination is only partly derived from my assessment of the credibility of the witnesses when they gave their testimony. I have determined that the description provided by Mr. Kuma-Mintah is in “harmony with the preponderance of probabilities”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Gariepy v. Ritchie, [1993] B.C.J. No. 2304 (S.C.); and Hou v. McMath, 2012 BCSC 257 at para. 27.

Driver Liable for Collision After He "Dozed Off" at the Wheel

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Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, assessing fault for a collision where a motorist lost consciousness while behind the wheel.
In this week’s case (Holt v. Rother) the Defendant motorist lost consciousness while driving his vehicle.  His vehicle veered across the oncoming lane and onto the southwest shoulder where he struck and seriously injured the Plaintiff pedestrian.
The Defendant argued he was not at fault suggesting that an “unexpected and unforeseeable medical condition” caused him to lose consciousness.  Mr. Justice Barrow rejected this explanation finding it was more likely than not that the Defendant simply ‘dozed off’.  In finding the Defendant fully at fault Mr. Justice Barrow provided the following reasons:
[34]         The issue that remains is whether the defendant has rebutted the inference of negligence that arises from the proven manner of driving. He points out that it is impossible to prove what may have caused him to lose consciousness, if that is what happened, and he is not required to do that. It seems to me that it is at least as likely that Mr. Rother dozed off just before he struck the plaintiff as it is that he lost consciousness for some other reason. In fact, I think this is the more likely explanation. He was 76 years old. He had been out in the hot sun all afternoon. He had been intermittently swimming. He had driven 20 or 30 minutes on the highway in the late afternoon. I agree with Dr. Cameron that a syncopal episode, while possible, is not a likely explanation for what happened. Further, I agree that vasovagal fainting, while more likely than a syncopal episode, is less likely than simply dozing off.
[35]         In reaching this conclusion, I have considered the actual driving evidence. It is not necessary to conclude that Mr. Rother was attempting to flee the scene after he struck the plaintiff. I have no doubt that had he been aware he hit the plaintiff, he would have stopped immediately. I think it likely that he was not aware he struck the plaintiff and was not attempting to drive away when he hit the lamp standard. I think it likely that he was aroused from his momentary lapse of consciousness, and before he regained his wits, he struck the lamp standard and his vehicle rolled over.
[36]         As noted by Evans J. in Boomer v. Penn, “[t]he evidence must disclose the probability that the driver’s acts and omissions were not conscious acts of his volition”. Further, he must establish that if he suffered a lapse in consciousness, that it was not reasonably foreseeable. Dr. Francis said, and common experience supports, that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. While Mr. Rother did not say that he experienced such symptoms he is, as noted, an unreliable historian, and his memory of events shortly before the accident is not complete.
[37]         I am not satisfied that Mr. Rother has discharged the onus he bears to establish that his driving, on the day in question, was not volitional or, if it was not volitional, that it was the result of something that was not reasonably foreseeable.

Police Officer Not Negligent For Crash While Running Red Light in Course of Duties

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

While operators of emergency don’t enjoy complete immunity when running a red light in the course of their duties, they do enjoy a statutory right of way to disobey traffic controls in appropriate circumstances.  Reasons for judgment were released recently by the BC Supreme Court, New Westminster Registry, clearing a police officer from fault following such a collision.
In the recent case (Singh v. British Columbia (Public Safety)) the Plaintiff entered an intersection on a green light.  At the same time the Defendant officer, who was responding to a call of a man with a knife threatening a child, ran a red light while responding to the call.  A crash occurred and the Plaintiff sued for damages.  The claim was ultimately dismissed with the Court finding that the Plaintiff was negligent and the officer properly entered the intersection within the scope of her duties.  In exculpating the officer of fault Madam Justice Adair provided the following reasons:
[68]         Constable Parrish testified that her siren was activated when she approached and was at the intersection of Scott Road and 96th Avenue.  She explained when and how she activated her siren.  She explained how the siren is activated by pressing a button, and that, once the siren button is pressed and the siren is turned on, it remains on until the button is pressed again.  She explained that she reactivated the siren after speaking with her dispatcher, and that she had it activated as she travelled down 96th Avenue towards the intersection with Scott Road.  Her explanations were logical, appropriately detailed and consistent with the circumstances in which Constable Parrish was operating.
[69]         I find that when Constable Parrish arrived at the intersection of Scott Road and 96th Avenue, both the emergency lights and the siren on her vehicle were activated, and they remained activated when she proceeded into the intersection.  I accept Constable Parrish’s evidence in this regard.  Her evidence is supported by and consistent with the evidence of Constable Lucic and also Mr. Barros (whose evidence was unchallenged).  The conclusion that both the emergency lights and siren were activated is not contradicted by the evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I conclude that, on this point, Mr. Singh does not accurately recall the events.
[70]         I conclude, therefore, that, at the intersection, Constable Parrish had the right of way, and Mr. Singh was obliged to yield to her.
[71]         I find further that Constable Parrish had reasonable grounds to believe that, at the relevant time, the risk of harm to members of the public from the exercise of the privileges under s. 122(1) of the Motor Vehicle Act was less than the risk of harm to members of the public (namely, the child threatened with harm) if those privileges were not exercised….
[78]         I find that Constable Parrish was proceeding cautiously across the intersection, with her emergency lights and siren activated, and her conduct was consistent with that of a reasonable officer acting reasonably and within the statutory powers (and duties) imposed on her in the circumstances on September 12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield the right of way to her.

Two Jaywalking Injury Claims Dismissed by the BC Supreme Court

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

Adding to this site’s archived case summaries of collisions invovling jaywalking pedestrians, two separate cases involving such a collision recently were dismissed at trial by the BC Supreme Court.
In the first case (Talbot v. Kijanowska) the Plaintiff, who emerged from an alleyway, was attempting to cross a street without the right of way.  The Defendant motorist did not see him in time to take evasive action.  The Plaintiff’s claim was ultimately dismissed with Mr. Justice Greyell providing the following reasons:
[34]         It is acknowledged by Mr. Talbot that he was not crossing the street at a crosswalk, marked or unmarked, at the time he struck or was struck by Ms. Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a common law duty on a person in Mr. Talbot’s position to take care of his own safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309, 48 M.V.R. (3d) 56 (S.C.) at para. 17….
38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.
[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.
Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.
[40]         The plaintiff’s action is dismissed. In the ordinary course the defendant would be entitled to costs. If there are matters of which I am unaware counsel may speak to the issue.
In the second case, (Pinsent v. Brown) the Plaintiff pedestrian was injured when attempting to cross a street in Vancouver in dark and rainy conditions.  She was not crossing at an intersection or in a crosswalk and “emerged onto the roadway from between parked cars”.  In finding the Plaintiff solely at fault for the resulting collision Madam Justice Ross provided the following reasons:
[32]         The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,…
[34]         The mere fact that the driver did not see the pedestrian before striking him, is not in itself, sufficient to establish that the driver kept an inadequate lookout: Plett v. ICBC (1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle so that he will be able to avoid striking a pedestrian who is crossing his path in a reasonable manner: Funk v. Carter, 2004 BCSC 866….
[52]         Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.
[53]         In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.
[54]         The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.
[55]         I find that Ms. Brown was not negligent in the manner she operated her vehicle. Ms. Pinsent was the sole cause of this unfortunate accident. In the result the action is dismissed.