How Do BC Courts Determine Fault for a Crash?: The "But For" Test
When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.
BC Courts must, in most circumstances, use the “but for” test. In the most basic terms, a driver has to exhibit some level of carelessness. From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“. If the answer is yes then the careless party must be found, at least partially, to blame for the accident. This week the BC Court of Appeal discussed this area of law.
In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane. It was dark and the Defendant remained stopped for a period of time. The speed limit was 90 kilometers per hour. He did not activate his brake lights or emergency flashers. The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.
The Plaintiff sued for damages. His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash. (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded. The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault. In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:
 I now turn to the legal test to establish causation. In Resurfice Corp. v. Hanke,  1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test. The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage? At para. 21 of Resurfice, the Chief Justice said:
First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.
 The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:
… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.
 In my view the judge erred in the way he framed the analysis. “Proximate cause” or “effective cause” are sometimes confusing terms.
 The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:
“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence. It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event. As I have explained, these implications are not correct – every event has multiple historical factual causes. The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36. It suggests a limit on the scope of liability. There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy. It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co.,  1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112,  3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72,  3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.
 The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test. The judge must have employed a last clear chance analysis when he used the term “proximate”. That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him. The judge found that the defendant was negligent. Indeed he could hardly have found otherwise. The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.
 The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati,  3 S.C.R. 458). There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability. In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury. The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage? Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”. I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.
 In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent. That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23). The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis. If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.
 This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307,  B.C.J. No. 350). Normally a sudden stop does not create an unreasonable risk of harm. However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.
 I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.
If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”. From there you need to ask “but for that wrongful act, the injury would not have occurred?“. If the answer is yes then you have a theory on which to advance your case.
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