Motorist Fully At Fault Despite Being hit While Stationary

Reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, finding a motorist who was struck while stationary fully at fault for a collision.
In last week’s case (Hart v. Jackson) the Defendant lost control of his vehicle in winter driving conditions and drove into a snow bank.  A good Samaritan helped him retrieve his vehicle leaving it facing southbound in the northbound lane.  The Defendant’s vehicle’s wheel wells were packed with snow such that it could not be steered.  The Defendant spend several minutes using a ice scraper to remove the snow.  At the same time the Plaintiff vehicle was driving Northbound.  When he realized the Defendant vehicle was in his lane he applied his brakes but could not avoid the collision.
In finding the Defendant fully at fault for the crash Mr. Justice McKinnon provided the following reasons:
[15]         In my view, Mr. Jacobsen was not a credible witness. He argued with plaintiff’s counsel, dismissed the plaintiff’s expert opinion about the Kia’s woeful lack of winter readiness, and generally set himself up as an expert northern driver fully alert and ready for winter conditions.
[16]         It was somewhat telling that even the defendant’s expert engineer was critical of the defendant’s position that “all weather tires” were perfectly adequate for northern winter driving.
[17]         The defendant testified that he drove at a constant speed of 75 KPH, which clearly was too fast, given the state of his vehicle, particularly the condition of his tires. Before the collision at issue in this case, the defendant’s vehicle began to slide as it rounded the curve referred to earlier and it ended up in the snow bank off the northbound lane. A passing motorist stopped to assist and pulled him out, leaving the Kia facing southbound in the northbound lane. According to Mr. Jacobsen he was “at most a foot away from the snow bank”.
[18]         Unfortunately, the wheel wells were packed with snow and thus the Kia could not be steered. The defendant had no shovel and so was reduced to chipping away at the wheel wells with a snow scraper to free up the steering. Although his vehicle was equipped with four way flashers he did not turn these on but did have his head lights on.
[19]         He said that as he was close to completing this task, he heard a flashing or skipping noise, turned to his left and saw a silver pickup sliding toward him. He said he turned and leaped into the ditch, never taking any strides.
[20]         Mr. Jacobsen denied ever admitting to either Mr. Landolt or Mr. Hart that the collision was his fault, indeed he capped that denial by asserting that “I was parked, it wasn’t my fault”. As stated earlier in this judgment, I did not find Mr. Jacobsen to be a credible witness. I found that the plaintiff and Mr. Landolt were credible and prefer their evidence over that of the defendant Jacobsen…
[35]         Mr. Jacobsen had his Kia parked in the northbound lane facing southbound. It is not entirely clear just how much of the Kia was in the northbound lane but it was to a substantial degree such that a northbound driver like Mr. Hart could conclude he was facing an immediate hazard.
[36]         The defendant was not just momentarily parked in this hazardous position but remained there for some 15 minutes, all the while scraping away at the wheel wells with a tool not designed for such work. Thus we have a vehicle, substantially in the northbound lane with a pedestrian walking around it posing an additional hazard to northbound traffic. The Kia’s head lights were on but the hazard lights were not. Given the curve and hump, the true nature of the hazard would not be readily apparent to the driver of a northbound vehicle until he rounded the curve and was so close to the parked vehicle that a collision was inevitable…
[41]         The two experts both agree that Mr. Jacobsen ought not to have been driving on “all season” tires which they testified were completely inappropriate for northern driving.
[42]         In my view, Mr. Hart was faced with the “agony of collision” doctrine. Given the curve and hump that obscured any clear view of just where the Kia was, he could not appreciate just what hazard was facing him. By the time he was able to see that the Kia was in fact parked substantially in his northbound lane there was almost no time to react. He cannot be faulted for opting to brake as opposed to some other manoeuvre: see Soto v. Peel, 2013 BCSC 409; Ayers v. Singh (1997), 85 B.C.A.C. 307, 69 A.C.W.S. (3d) 207; and Brook v. Tod Estate, 2012 BCSC 1947.
[43]         I also accept that Mr. Jacobsen had a duty to warn oncoming motorists of the hazard he had created by at least operating his four way flashers. The better course would have been to flag the curve with emergency reflectors but he had no such equipment: see Skinner v. Fu, 2010 BCCA 321.
 

Agony of Collision, bc injury law, Hart v. Jackson, Mr. Justice McKinnon

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ERIK
MAGRAKEN

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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.

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