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Passenger 50% at fault for Collision with pedestrian

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

In what can only be described as a unique and bizarre collision, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, assessing fault for a collision where an individual was struck by his own vehicle put in motion by his spouse.
In this week’s case (Mayne v. Mayne) the Plaintiff was in his vehicle with his wife, the Defendant, occupying the passenger seat.   As he was pulling out of his garage he stopped the vehicle and went back in his home to retrieve a key.   He left the vehicle running in neutral (mistakenly believing it had been placed in park).  The vehicle slowly started to run down into the roadway.  His wife, concerned it would be involved in a collision, reached over and attempted to put the vehicle in park.  She was not successful, however, and shifted the vehicle into drive.  The vehicle lurched forward and struck the Plaintiff who was just coming back out of the home.
The Court found both individuals equally to blame for the incident.  In placing 50% of the fault on the Defendant Madam Justice Bruce provided the following reasons:
[31]         Having regard to the circumstances of this case, I am unable to find that Mrs. Mayne has satisfied the onus of proof regarding the defence of “agony of the moment”. There was only a nominal risk of harm to the neighbour’s home and Mrs. Mayne panicked and took unreasonable and dangerous steps to stop the backward rolling vehicle. While Mrs. Mayne did not expect the Buick to roll backward, having no foreknowledge of Mr. Mayne’s failure to engage the emergency brake or to leave the vehicle in park, she nevertheless severely overreacted to the perceived danger. Given the very slight slope of the driveway, and viewed in light of the video presentation showing the likely speed of the Buick as it rolled backward, it is apparent that things were not happening quickly at all. The Buick was travelling ever so slowly albeit in a backward direction. There was no one in the area and the roadway was devoid of other traffic. The neighbour’s home was a considerable distance away. The Buick would have to travel out of the driveway, over the first curb, cross the roadway and negotiate the next curb, and travel through the lawn and the hedges of the neighbour’s home before it would have come into contact with a structure.
[32]         In these circumstances, Mrs. Mayne had time to consider what to do. She could have easily unbuckled her seatbelt to make it easier to reach over and place the vehicle in park. She could have simply taken the key out of the ignition. There was no imminent danger from any objective point of view.
[33]         The court must not make armchair judgments based on hindsight; however, clearly Mrs. Mayne panicked in a situation that would not have panicked a reasonable person in the same circumstances. Counsel argued that her age should be a factor. At 81, her reaction times and her judgment would be impaired. However, the law cannot countenance a lower standard for elderly drivers. Mrs. Mayne had a drivers’ licence and regularly operated the Buick. As a consequence, the court must presume that she possessed sufficient competence to operate a motor vehicle safely.
[34]         For these reasons, I find that Mrs. Mayne was negligent when she took control of the Buick and struck Mr. Mayne.

Defendant Stripped of Costs For Expert Witness Advocacy

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 45 Comments on Defendant Stripped of Costs For Expert Witness Advocacy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, stripping Defendants of significant trial costs they otherwise would have been entitled to as a result of relying on an expert witness who crossed the line into advocacy.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 collisions.  He alleged he sustained a traumatic brain injury and sought damages exceeding one million dollars at trial.  The Court rejected the brain injury claim and found that the Plaintiff sustained modest injuries awarding $15,000 in total damages.  Prior to trial ICBC made a formal offer of settlement of $125,000.   ICBC sought costs from the time of the offer onward. Mr. Justice Harvey held that normally such an order was appropriate but because of the Defendant’s expert witness’ evidence at trial which crossed into advocacy and further due to the Defendant lawyer’s conduct in the course of a mid-trial application, the Defendant should be stripped of their post offer costs.  In coming to this conclusion the Court provided the following reasons:
[72]         As  earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.
[73]         The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate:Jayetileke, supra.
[74]         In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.
[75]         Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.
[76]         In the circumstances, despite the September Offer and the defendants’ success on the issue of whether the plaintiff suffered an MTBI as a result of any of the four accidents, it is appropriate to deny the defendants the costs of trial leaving intact the plaintiff’s entitlement to costs up to and including the date of the offer to settle but no costs thereafter.

How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, BCSC Civil Rule 22, Civil Procedure. 127 Comments on How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date.  Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list.  In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.
In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision.  Prior to trial ICBC sought to have the matter adjourned but the application was dismissed.  The Plaintiff’s lawyer then forgot to file a trial certificate and the matter was removed from the trial list.  Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:
[24]         The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.
[25]         In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?
[26]         In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:
(5)  Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.
[27]         In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…
[29]         It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:
(9)  The court may
. . .
(b) fix the date of trial of a proceeding,
. . .
[30]         When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.
[31]         Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows:
(2)  . . .  if there has been a failure to comply with these . . . Rules, the court may

. . .

(e) make any other order it considers will further the object of these . . .  Rules.
[32]         In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.

Case Plan Conference Orders Can't Trump Privilege

Written by admin on . Posted in BCSC Civil Rule 5, BCSC Civil Rule 7. 50 Comments on Case Plan Conference Orders Can't Trump Privilege

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:
[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15]         The Court declines to make the order sought.
 

$65,000 Non-Pecuniary Assessment for Chronic Frontal Headaches

Written by admin on . Posted in ICBC Headache Cases.

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for chronic headaches caused by a motor vehicle collision.
In this week’s case (Murphy v. Obrien) the Plaintiff was involved in a 2007 collision.  The Defendant accepted liability.  The Plaintiff suffered various soft tissue injuries which posed problems but the most debilitating consequence were chronic frontal headaches which were still symptomatic at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Steeves provided the following reasons:
[51]         There is general acceptance among the experts that the plaintiff suffered a soft tissue injury to his neck on May 17, 2007. There was no fracture, dislocation or nerve root injury. There is restricted range of motion in all directions and even simple tasks such as reading bring on headaches and neck pain. The plaintiff testified that, at times, he actually vomits because of the pain from his headaches. He has tried various treatments with some affect. The most recent has been Botox injections which have given him some relief. For example, Dr. Tsui administered the injections and, in a report dated May 10, 2012, he reported that the plaintiff said “the migrainous headaches have abated since the last treatment.” Similarly a report dated August 15, 2012 reported a “good response in terms of the migraines.” Despite this improvement the frontal headaches continue. The plaintiff’s evidence about his headaches is consistent with that of Dr. Tsui.
[52]         Therefore, the current situation is that the severe migrainous headaches have abated but the frontal headaches remain and they are chronic. I conclude that these headaches, and the neck pain, are as a result of the May 2007 motor vehicle accident. Further, these symptoms are independent of any problems with the left knee although, as will be seen, the left knee is certainly a relevant and complicating factor. These headaches are obviously very real for the plaintiff, with the consequences noted, and they are consistent with the medical evidence…
[62]         Overall, I conclude that an amount of $65,000 is an appropriate amount for non-pecuniary damages in this case. That figure recognizes the chronic frontal headaches. It also recognizes the undoubted emotional toll the headaches have had on his life, including his family, friends and the limitations on activities he used to do before the 2007 accident. And, it recognizes that pain medications for the left knee have played a role in the current situation.
For more BC non-pecuniary assessments for headaches you can click here to search this site’s archives.

Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 104 Comments on Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a Defendant who u-turned into a parking spot behind a backing up vehicle.
In this week’s case (Ferguson v. Yang) the Plaintiff stopped along the curb of 8th Street in New Westminster to drop his daughter off for school.  There was a gap behind him with a white van parked behind him.  The Defendant, who was approaching from the opposite direction made a u-turn and pulled into the gap.  At the same time the Plaintiff was backing up and a collision occurred.

Although there was a dispute as to how the collision occurred the Court found the above scenario the likely one as the Defendant’s evidence was “fraught with inconsistencies and obvious exaggerations“.  In finding the Plaintiff faultless for the collision Mr. Justice Weatherill provided the following reasons:
41]         In my view, the u-turn performed by the defendant in an attempt to secure a parking spot across the street in a school zone where parents were busy dropping their children off for school was a maneuver fraught with danger.  Moreover, I am satisfied that the plaintiff’s backup lights were illuminated, that the defendant ought to have seen them and that he ought to have anticipated the plaintiff’s vehicle was in the process of reversing into the space the defendant was attempting to move into.  Captain MacPherson saw these backup lights.  Had the defendant been keeping a proper look out, he would have seen them as well.
[42]         The defendant has failed to satisfy me that the plaintiff was contributory negligent in any way.  
[43]         The law does not require perfection on the part of the plaintiff to guard himself against every conceivable eventuality.  He must only guard himself against those eventualities that a reasonable person ought to have foreseen, within the ordinary range of human experience.  The plaintiff was entitled to proceed on the assumption that all other vehicles would do what is there duty, namely observing the rules of traffic: Pacheco (Guardian ad Litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11; Dechev v. Judas, 2004 BCSC 1564 at para. 22.
[44]         The plaintiff checked the area around his vehicle by looking in his side and rear view mirrors and by looking over his right shoulder.  He did all that he ought to have done.  A reasonably prudent driver should not be expected to anticipate that while in the course of backing up, another vehicle will perform an aggressive and illegal u-turn from the other side of the street in an attempt to occupy the space behind him.
[45]         The plaintiff had no warning of the impending collision.  I do not believe the defendant’s evidence that he was stopped and that he honked his horn prior to the collision.
[46]         In Carson v. Henyecz, 2012 BCSC 314, Madam Justice Hyslop stated at para. 99
            The duty imposed on a reversing driver is not just when the driver starts to reverse, but throughout the entire reversing procedure and to its completion.  The object is to be aware as reasonably possible to what is behind the driver and in the driver’s path while in reverse.
I agree with those comments.  I find that, in the circumstances here, the plaintiff conducted himself appropriately and was as aware as reasonably possible to what a reasonable driver should have anticipated would be in his path while reversing his vehicle.  He could not have reasonably anticipated that the defendant would do what he did.  
 

Lost "Fringe Benefits" Must Be Taken Into Account When Calculating Diminished Earning Capacity

Written by admin on . Posted in ICBC Wage Loss. 51 Comments on Lost "Fringe Benefits" Must Be Taken Into Account When Calculating Diminished Earning Capacity

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that lost ‘fringe benefits’ are recoverable as part of a diminished earning capacity analysis.
In last week’s case (Combs v. Bergen) the Plaintiff was injured in a 2009 collision.   She missed several months from work causing a past loss of income of just over $18,000.  During her time off work she lost the benefit of employer contributions to her Canada Pension Plan and to her pension. She sought recovery of these losses.  Mr. Justice Steeves agreed these were compensable and provided the following reasons:
[61]         The plaintiff seeks past income loss in the amount of $18,287.25 and the defendant agrees with this amount. However, the plaintiff also seeks payment for her employer’s contributions to the Canada Pension Plan (CPP) and s to her pension. These amounts are $831.05 and $1,737.29, respectively. The defendant opposes any payment for these amounts.
[62]         There is authority for the plaintiff’s submission on benefits to the effect that “the compensatory principle requires that the full value of lost fringe benefits must be taken into account when computing loss of working capacity” (Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996) at 240). This reasoning was adopted by the Newfoundland Court of Appeal in Taylor v. Hogan (1998), 160 Nfld. & P.E.I.R. 93 at para. 41 (Nfld. C.A.). I conclude that is appropriate in this case.
[63]         Past income loss is set at $18,287.25 plus CPP and pension contributions. Total is $20,855.59.

From Medical Marijuana to Surveillance and More

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As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts.  I do this because it makes it easier to search archived posts by case specific topics.
Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary.   In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest.  The entire judgement is worth a read.
In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision.  Both motorists claimed they had a green light which simply could not be true.   The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault.  The Plaintiff  claimed damages of over $450,000.  The Court rejected most of these claimed damages and in doing so illustrated the following points:
Video Surveillance Successfully Used
Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court.  Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims:
[103]     I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial.  These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer.  This included squatting, and holding a tripod above his head to take pictures.  He moved fluidly, in and out of the driver’s seat, apparently without discomfort.  He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court.  The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day.  However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana.  I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts.  The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.
[104]     Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors.  However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic.  I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court…
[106]     I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries.
Medical Marijuana
The Plaintiff claimed damages of $20,000 for the cost of medical marijuana.  While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana.  The defendant pursued such an analysis with apparent success.  In rejecting these claimed damages the Court provided the following analysis:
[60]         On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before.  Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana…
[112]     The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it.  However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes.  His internet postings suggest that.  Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries…
[120]     The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000.  The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).  As such, I award nothing for the cost of future care.
Frequency of Doctor Visits
The last point of interest deals with the Plaintiff’s frequency of doctor’s visits  I have canvassed this topic previously.  In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury.  The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim.  The following observation was made by Justice Sigurdson:
 [65]         Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries.  From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion.  Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made…
[107]     It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit.  He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes.  The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor.  Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.
 

Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

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I have previously discussed the fact that accelerated vehicle depreciation is a recognized damage in BC.  Reasons for judgement were released this week by the BC Court of Appeal addressing such a claim noting something more than hearsay is required to prove the loss.
In this week’s case (Kapelus v. Hu) the Plaintiff was injured in a 2006 collision.  She proceeded to trial and was awarded damages for her injuries but her claim for accelerated vehicle depreciation was dismissed.  The Plaintiff presented evidence of offers that others provided her for the purchase of the vehicle.  The Court of Appeal noted that if this was the only evidence then there was no error in dismissing this aspect of her claim.  The Court provided the following reasons:
24]         Finally, I should say that the argument advanced by Mrs. Kapelus, that the judge erred in rejecting evidence of the loss in value of her vehicle, based solely on her report of offers to purchase the vehicle, is without merit.  The judge ruled that Mrs. Kapelus’ evidence, that third parties had been prepared to purchase her car at a certain price prior to the accident, was hearsay.  I accept this ruling: it is hearsay and it is not rendered admissible under the business records exception in the Evidence Act, R.S.B.C. 1996, c. 124.

Pedestrian Struck in Crosswalk on "Dark and Rainy" Night Not Contributorily Negligent

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Adding to this site’s archived cases discussing fault for pedestrian collisions, reasons for judgement were released recently addressing contributory negligence of a pedestrian struck in a marked crosswalk.
In the recent case (Bulatovic v. Siebert) the Plaintiff was struck while crossing Granville Avenue in Vancouver.  She had passed the midway point of the street when struck by the Defendant who was making a left hand turn.

Although there was contradictory evidence about the circumstances of the crash the Court ultimately found that the Plaintiff lawfully entered the crosswalk with a walk signal in her favour and that there was no evidence of contributory negligence.  In finding the Plaintiff faultless for the collision Mr. Justice Steeves provided the following reasons:
[82]         More generally, the reason for the legal protection of pedestrians in crosswalks is the significant inequality in speed and force between a motor vehicle and a pedestrian. A pedestrian is entitled to walk through a crosswalk, taking reasonable precautions consistent with having the right of way, knowing that she is safe. I find that the plaintiff took those precautions and she is entitled to the legal protection of having the right of way under section 132(1) of the Motor Vehicle Act.
[83]         I also adopt the comments of a previous judgement (Hooper v. Nair, 2009 BCSC 862 at para. 32),
I accept the plaintiff’s submission that in order to prove that a plaintiff pedestrian was contributorily negligent, the defendant driver bears the onus of establishing not only inadequate attention on the part of the pedestrian but also must show that by the time the pedestrian realized the driver was not going to yield the right-of-way to the pedestrian, that it would at that point have been possible for the pedestrian to avoid the driver’s car. As well, the driver must show that a reasonable person in the circumstances of the pedestrian would have taken and succeeded in actions which would have avoided impact with the driver’s car:  Olesik v. Mackin (23 February 1987), Vancouver B860365 (S.C.); Pinto v. Rana, [1993] B.C.J. No. 1312 (S.C.).
[84]         I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said “Walk”. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to “Walk”. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant’s evidence that he could have looked to his left in order to see the plaintiff.
[85]         It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a “Walk” signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.