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$75,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision.  Fault for the incident was admitted by the Defendant.  The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial.  While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:

[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.

[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.

[492] The question that remains is, what is the cause?..

[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.

[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.

[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…

12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.

[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.

[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.

Court Should Avoid "Unduly Punitive" Costs Awards in Face of Formal Settlement Offers

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, ICBC No-Fault (Part 7) Benefits, Uncategorized.

In a good demonstration of the Court’s discretion following a trial where a Plaintiff does not beat a pre-trial defence formal settlement offer, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a Plaintiff’s post offer costs and disbursements away but not requiring the Plaintiff to pay the Defendant’s costs and disbursements.
In this week’s case (Tompkins v. Bruce) the Plaintiff turned down a pre-trial formal settlement offer of $950,000.  Following trial the Plaintiff was awarded net damages of $851,437.  ICBC applied for post offer costs.  Mr. Justice Curtis found such a result would not be appropriate and instead took away the Plaintiff’s post offer costs and disbursements.  In doing so the Court provided the following reasons:

[28] When the offer in this case was received on October 6, 2011, the plaintiff and his counsel were in possession of the information necessary to make a realistic assessment of the potential recovery.  Naturally, there is no mathematical certainty in those matters and differing courts may give differing amounts.  The plaintiff and his counsel would clearly have contemplated a range of possible recoveryies.  The plaintiff, of course, hopes for the high end of the range and the paying party the low ? settlements are often made somewhere in between.

[29] The offer in this case was reasonable on the facts of the case as they were known to the parties.  It could reasonably have been accepted as being within the range of possible recovery, although likely it would not have been thought by either party at the high end of the range.  The amount of the Offer was reasonable as was its timing: the information necessary to assess the claim was in the possession of the parties, yet there was plenty of time to give careful consideration to the matter before the November trial date.  On the other hand, Mr. Tompkins was seriously injured.  He and his counsel’s view of the matter was that it was worthwhile going to court in the hope of getting a significantly higher award.  It cannot be said that such a decision was unreasonable at the time.

[30] The purpose of cost consequences of reasonable offers is to encourage settlement.  On the other hand, onerous cost penalties should not discourage the seriously injured from a proper hearing and a chance to obtain a higher award, nor should they seriously subtract from what the court has found is appropriate compensation for the injury.

[31] Considering the factors set out in the Rules, it is my opinion that the interests of justice are best served in this case by awarding Mr. Tompkins his costs and disbursements up to and including October 31, 2011, but disallowing them after that date, with the Third Party to bear its own costs.  There is then a consequence for not accepting a reasonable Offer, but the consequence is not unduly punitive in the circumstances.

Today’s case is also worth reviewing for the Court’s discussion of various Part 7 Deductions following a tort action.

Court Prohibits Lawyer From All 'Current or Future Representation of Claimants in the IAP'

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.


In a rare judicial intervention into a lawyer’s practice, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, stripping a lawyer from all of his cases relating to the residential school Independent Assessment Process class action settlement.  The Court determined it had jurisdiction to make such an order pursuant to section 12 of BC’s Class Proceedings Act.
In yesterday’s case (Fontaine v. Canada (Attorney General)) lawyer David Blott was on record ‘for approximately 2,900 (IAP) claimants‘.  ‘Concerns‘ were raised with respect to this lawyer’s practice.  These led to an investigation of the lawyers practice resulting in a final report with various troubling findings (these are highlighted at paragraphs 17 and 18 of the reasons for judgement).
An application was made seeking significant judicial intervention including an order stripping the lawyer of all of his IAP files.  In granting this extraordinary relief, Madam Justice Brown provided, amongst other criticism, the following comments:

[167] The conclusion of the LSA panel regarding Mr. Blott’s conduct bears repeating:

But after considering all of the evidence in this matter and hearing Mr. Blott, we continue to be concerned that Mr. Blott does not appear to understand what it means to be a lawyer.  We are concerned that Mr. Blott appears not to recognize that his primary role is as a fiduciary and everything else is secondary.

[168] I share the LSA’s concern that Mr. Blott does not understand what it means to be a lawyer.  Further, while I also understand the desire to avoid additional victimization of the members of an already-vulnerable class, a more lasting remedy than the interim measure implemented by the LSA is required.  The process approved by the LSA, and advanced by Mr. Blott on this application, would see at least 1,500 clients moved from the Blott firm to other lawyers in any event.  Viewed in that light, the issue is not whether disruption will be experienced by Blott clients, but rather the number of clients who will experience it.

[169] It would be far better to have this client transfer process conducted under the supervision of the court and it is necessary for the integrity of the process and the protection of the clients that it be a complete transfer.  Therefore, I will accept and implement the Monitor’s recommendation in respect of the removal of David Blott, David Blott Professional Corporation, Blott & Company, and any associated entity from the current or future representation of claimants in the IAP or any other process embodied in the settlement.

$75,000 Non-Pecuniary Assessment for Scapholunate Ligament Tear with Persistent Limitations

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized. 55 Comments on $75,000 Non-Pecuniary Assessment for Scapholunate Ligament Tear with Persistent Limitations

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a wrist injury causing long term limitations.
In this week’s case (Jackson v. Jeffries) the Plaintiff was involved in a 2008 head on collision.  The Defendant admitted fault for the crash.  The Plaintiff, who had learning difficulties, trained to be a plumber and was working as an apprentice plumber by the time of the collision.  The crash caused a Scapholunate ligament injury to his wrist which required surgery.  He was left with persistent pain and stiffness in his wrist and, as a result of these limitations, was no longer medically suited for his physical career.  In assessing non-pecuniary damages at $75,000 the Court provided the following reasons:

[39] Dr. Perey, an orthopaedic surgeon specializing in hand, wrist and elbow surgery, saw Mr. Jackson on February 4, 2010, on referral from Dr Wong.  Mr. Jackson was complaining of activity related wrist pain, notwithstanding that x-rays and an MRI did not reveal any abnormality.  Dr. Perey suspected a scapholunate ligament tear which was confirmed during wrist arthroscopic surgery performed May 10, 2010.

[40] Following surgery, Mr. Jackson was placed in a splint for 10 days followed by a cast for 8-10 weeks.  Dr. Perey wrote in his medical report of August 31, 2010, that Mr. Jackson was making “remarkable strides” although he had residual pain and stiffness.

[41] It was Dr. Perey’s prognosis that Mr. Jackson’s symptoms would continue to improve, but that he would likely have some persistent pain and stiffness with his wrist which would be aggravated by heavy use.  Dr. Perey recommended “a re-training program to a less physically demanding occupation than a plumber.”  He concluded Mr. Jackson could “resume intermittent physical activities involved in hobbies and sports.”…

[71] As Dr. Feldman described, Mr. Jackson has a partial permanent disability which will result in him not being able to continue as a plumber in the future.  He will be left with ongoing back pain and stiffness and weakness in his wrist.

[72] Mr. Jackson is not fitted to labouring-type work or other work which will place strain on his back and wrist.  The range of potential occupations has been narrowed as a result of the injuries…

[84] As the cases are similar on their facts, I award Mr. Jackson non-pecuniary damages of $75,000.

Party Substitution Orders and ICBC Unidentified Motorist Claims

Written by admin on . Posted in Civil Procedure, Uncategorized.


As previously discussed, when injured by the fault of an unidentified motorist in BC, a Plaintiff can sue ICBC directly for damages in place of the unknown motorist provided section 24 of the Insurance (Vehicle) Act is complied with.
After a lawsuit starts, if the unknown motorist becomes known then the Plaintiff can substitute the appropriate party.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an application and, interestingly, denying it alleging the Plaintiff failed to identify the appropriate party in a timely fashion.
In this week’s case (Turnbull v. ICBC) the Plaintiff was allegedly injured when struck by a customer at his store.  The Plaintiff failed to properly record the licence plate information of the motorist.  The Plaintiff sued ICBC and as the litigation progressed the Plaintiff believed he was able to identify the offending motorist through employment records identifying the correct licence plate of the vehicle alleged to be involved.
The Plaintiff brought an application to substitute this person into the lawsuit.  The application was denied with Master Caldwell providing the following reasons:

[22] In the present case, the plaintiff knew of the existence of documentation which would have identified potential defendants at the time of and at all times following the alleged incident.  The plaintiff retained counsel shortly after the incident.  The plaintiff and his counsel were aware well before the expiry of the limitation period that identification of the vehicle and driver was a central and important issue in the claim.  No application was made during the limitation period, or even during the year following the expiry of the limitation period, to pursue the documents which the plaintiff knew existed and knew might well identify the vehicle and the driver.

[23] In short the plaintiff, and the plaintiff alone, bears the responsibility for the failure to identify potential defendants in a timely fashion and certainly within two years of the incident plus one year to serve.  In such circumstances, if limitation periods are to have any meaning and effect in our system, the interests of justice and the potential prejudice to the intended defendant outweigh the interests of the plaintiff.

I question the correctness of this decision given section 24(6) of the Insurance (Vehicle) Act which provides as follows:

(6) If the identity of the unknown owner or driver is ascertained before judgment is granted in an action against the insurer as nominal defendant, then, despite the limitation period in the Motor Vehicle Act, that owner or driver must be added as a defendant in the action in substitution for the corporation, subject to the conditions the court may specify.

This lack of duty when seeking to substitute parties under s. 24(6) should not be confused with a Plaintiff’s duty to continue to make all reasonable efforts to ascertain the identity of the unknown motorist to maintain a section 24 action against ICBC through to trial.
I understand that the above decision is under appeal and if further reasons are issued addressing this I will provide an appropriate update to this post.

LVI Defence Rejected, $27,500 Non-Pecuniary Assessment for Soft Tissue Injuries

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 1 Comment on LVI Defence Rejected, $27,500 Non-Pecuniary Assessment for Soft Tissue Injuries

In my continued effort to highlight the judicial treatment of the Low Velocity Impact defence, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such a strategy.
In last week’s case (Guzman Gonzalez v. Dueck) the Plaintiff was involved in a 2009 rear-end collision.  The Defendant admitted fault for the crash but denied the Plaintiff suffered injury arguing the the crash occurred at “about one kilometre per hour” and that if felt like “a little love tap“.
Mr. Justice Burnyeat rejected this evidence finding as follows:
[6] The damage to the respective vehicles was $1,270.80 to the vehicle of Mr. Guzman Gonzalez and $1,001.52 to the vehicle of Mr. Dueck.  Mr. Dueck described the damage to his vehicle as being “a little damage to the front-end bumper”, “it got pushed down”.  I do not accept the evidence of Mr. Dueck that his vehicle was only going one kilometre per hour and that the collision only involved “a little love tap”.  Although the damage to the vehicles was not extensive and although I can conclude that this was a low impact collision, I cannot reach the conclusion that the respective damage to the vehicles could have been caused by the collision described by Mr. Dueck.
In assessing non-pecuniary damages at $27,500 the Court made the following findings:

[28] On the basis of the testimony of Mr. Guzman Gonzalez, the expert opinions of Drs. Tong and O’Connor, and the testimony and reports of Mr. Snip, I can conclude as follows regarding the extent and the duration of the pain and suffering of Mr. Guzman Gonzalez caused by the accident:

(a) Regarding the low back pain experienced by Mr. Guzman Gonzalez, I conclude that he had fairly constant pain for the first month or so, but that his complaints had resolved by the time Mr. Guzman Gonzalez saw Dr. Tong on October 21, 2009.

(b) Regarding the headaches suffered by Mr. Guzman Gonzalez, while Mr. Guzman Gonzalez testified at his Discovery that he had his last headache in December 2010, I am satisfied on the basis of the medical legal opinion of Dr. O’Connor that any headaches associated with the accident were common daily for the first three months, but had largely resolved within three to four months so that Mr. Guzman Gonzalez now only experiences headaches every so often.

(c) Regarding the pain experienced in his shoulder, Mr. Guzman Gonzalez confirmed that there is only pain when he lifts his arm above his head or when he sleeps on that particular shoulder.  I take into account the following evidence to come to the conclusion that the neck and shoulder pain caused by the accident lasted in the neighbourhood of six to eight months, although it was particularly acute during the first two months after the accident:  (i) by December 5, 2009, Mr. Guzman Gonzalez was reporting to Dr. Tong that there was only “occasional flareup” associated with the “tightening up of the muscles”; (ii) the clinical notes of Dr. Tong did not record any complaint by Mr. Guzman Gonzalez about neck and shoulder pain for the December 5, 2009 through February 20, 2012 visits; (iii) in his February 20, 2012 medical legal opinion, Dr. Tong noted that there was neither “residual neck musculo-ligament tenderness” on palpation, that the left shoulder exhibited “slight decreased external rotation and abduction”, and that there was “no tenderness on the anterior aspect of the left shoulder”; (iv) neck pain and left shoulder pain was described by Dr. O’Connor in his December 16, 2011 legal opinion as being “about 50% better”; and (v) in his December 16, 2011 opinion, Dr. O’Connor states that the neck pain was “initially triggered by musculoligamentous strain to the neck, and likely aggravation of the cervical facet joints at the mid-cervical spine”.

[29] The x-ray arranged by Dr. Tong in late 2009 indicated “moderate osteoarthritis of the  acromio-clavicular joint” and that this “may cause impingement”.  There is no medical evidence which would allow me to conclude that the accident caused an acceleration of the osteoarthritis or that this would not have developed but for the accident.  In the circumstances, I find that the condition described by Dr. O’Connor was the result of a degenerative condition in the AC joint which had previously not caused pain to Mr. Guzman Gonzalez but is presently causing pain during or after what Dr. O’Connor described as “overhead reaching”.  The prognosis of Dr. O’Connor is that there is an increased risk of injury or aggravation of the left shoulder with any heavy lifting or overhead reaching or carrying required in the occupation of Mr. Guzman Gonzalez.  I find that this ongoing problem is attributable to the osteoarthritis and not to injuries caused by the negligence of Mr. Dueck.

[30] As a result of the injuries caused by the negligence of Mr. Dueck, I find that Mr. Guzman Gonzalez was not able to play tennis for about six months, that he had limited ability to play soccer, that he was less active on the dance floor for six to eight months, but that, after about eight months, he was fully able to carry on with all of his previous recreational activities.  I find that any further limitations regarding his recreational activities can be attributed to a problem that Mr. Guzman Gonzalez has with his knee which is in no way associated with the results of the injuries he suffered as a result of the accident.

[31] Taking into account the injuries suffered by Mr. Guzman Gonzalez as a result of the accident and the duration of the pain and suffering of Mr. Guzman Gonzalez, I assess the non-pecuniary damages of Mr. Guzman Gonzalez at $27,500.

$60,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, assessing damages for a rotator cuff injury sustained in a motor vehicle collision.
In the recent decision (Antonishak v. Piebenga) the Plaintiff was injured in a 2008 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff sustained a right shoulder rotator cuff tendinopathy resulting in shoulder instability.

The Plaintiff symptoms lingered to the time of trial and had a “guarded prognosis” for further recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Wong provided the following reasons:
[3] As a result of the accident, Mr. Antonishak sustained the following injuries:  soft tissue strain to neck and arm, right shoulder rotator cuff tendinopathy, anterior and inferior instability of the right glenohumeral joint and right ulnar neuropathy. Mr. Antonishak was then 27 years of age. He is now 32 years. These injuries have affected his employment duties and also interfered with his active recreational pursuits and lifestyle. The plaintiff complains that since the accident he has continued to suffer from right shoulder and arm pain together with fatigue. At the time of the accident, the plaintiff was employed as a waiter at the Hotel Eldorado Restaurant in Kelowna. As a result of his injuries, he claimed he missed seven days from work and, on other occasions, ended his shifts early due to increased pain and fatigue from his injuries. He said there were also a number of employment tasks expected of him that he was unable to perform due to his injuries. The plaintiff also said his injuries continued to interfere with his employment and with his various extracurricular activities. These ongoing functional impairments and limitations cause him concern of what his future holds as it relates to his ability to pursue various careers and occupations…

[7] At trial, Mr. Antonishak projected as an energetic, ambitious, and engaging person. He is certainly not a malingerer nor a layabout. He has plans for a future in the restaurant/hospitality industry as an entrepreneurial owner. When not working, he also likes to engage in active recreational sport pursuits and extensive international travel. He has a natural curiosity about foreign cultures and environments. He enjoys his present occupation as a fine dining server, but encounters pain and fatigue if he overworks his right arm and shoulder. He has curtailed some, but not all of his active recreational activities for fear of aggravating his weakened right shoulder and arm.

[8] For the foreseeable future, Dr. Monteleone has suggested cautious monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening program. If his present condition eventually becomes intolerable relative to his future career and lifestyle, then stabilizing shoulder surgery may need to be done. This would involve major surgery with potential six-month recovery time thereafter. In the meantime, the plaintiff lives with a weakened right-hand grip and chronic troubling pain and fatigue if he overtaxes himself in above-shoulder or extensive reaching or pulling activities.

[9] After four years of chronic troubling pain and fatigue with guarded prognosis of future improvement together with curtailed recreational activities, I fix this item of damage at $60,000.

Petition to Remove BC's Attorney General Set to be Heard Today

Written by admin on . Posted in Uncategorized. 62 Comments on Petition to Remove BC's Attorney General Set to be Heard Today

UPDATE June 18, 2012 – The decision from the below hearing was released today.  You can access Madam Justice MacKenzie’s dismissing Ms. Askin’s Petition here.
____________________________________________________________________________________
The on-going tension between the BC Government and the Courts may be further fanned as the BC Supreme Court is asked to weigh in on the qualifications of Shirley Bond to act as Attorney General.
Earlier this year Lesslie Askin filed a complaint with the Law Society of BC arguing that Shirley Bond, a non-lawyer, was unlawfully practicing law when she was appointed as Attorney General of BC.  After seeking legal advice on the issue the Law Society rejected the complaint finding that the Premier had unfettered discretion with respect to this post and was not required to appoint a lawyer to BC’s highest legal office.
Ms. Askin, disagreeing with the result, filed a petition with the BC Supreme Court seeking Judicial Review of the Law Society’s decision.  The Petition is scheduled to be heard today and tomorrow in Courtroom 46 before Madam Justice Stromberg-Stein.
When asked about her lack of legal training, Minister Bond told the Georgia Straight that “I believe that non-lawyers serving as Attorney General bring a common sense approach that most British Columbians can appreciate,”.  Despite Ms. Askin being self represented, the Government does not appear to be treating this matter lightly, bringing some leading constitutional litigators to defend their position.  It will be of interest to see how the Court deals with this potentially charged issue in the face of current tensions.
A copy of the Petition can be found here, the Government’s Response here and the Law Society’s here.

Supreme Court of Canada Clarifies Law of Dangerous Driving

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 151 Comments on Supreme Court of Canada Clarifies Law of Dangerous Driving


The Supreme Court of Canada released reasons for judgement this morning clarifying the required elements of the Criminal Code offence of Dangerous Driving.
In today’s case (R v. Roy) the Defendant was driving a motor-home carrying a passenger. Visibility was limited due to fog and the road they were on was relatively steep, snow?covered, and slippery. He pulled out from a stop sign to turn onto a highway.  As he did so he pulled into the path of an on-coming tractor-trailer resulting in a serious collision killing his passenger.  He was convicted of Dangerous Driving Causing Death at the trial level.  The BC Court of Appeal upheld his conviction.  The Supreme Court of Canada overturned the conviction and in doing so provided the following exchange highlighting that something beyond mere negligence is required to cross the threshold into criminality:
[30] A fundamental point in Beatty is that dangerous driving is a serious criminal offence.  It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established.  Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy.  The distinction between a mere departure, which may support civil liability, and themarked departure required for criminal fault is a matter of degree.  The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

[31] From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Ins. Co. v. Dickson, [1943] S.C.R. 143).  This distinction took on added importance for constitutional purposes.  It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O’Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966] S.C.R. 238; Hundal).  Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.

[32] Beatty consolidated and clarified this line of jurisprudence.  The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment…

[37] Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.  As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34).  The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention.  These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.  But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71).

Cyclist Found 50% at Fault For Crash After Passing Vehicle on the Right

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 55 Comments on Cyclist Found 5055 at Fault For Crash After Passing Vehicle on the Right

Further to my recent article on this topic, cyclists passing a stopped vehicle on the right can be faulted for a resulting collision.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Kimber v. Wong) the Plaintiff cyclist was approaching a T intersection.  A vehicle was stopped in his lane of travel leaving a gap for the Defendant who was driving in the opposite direction intending to make a left hand turn.  The Cyclist passed the stopped vehicle on the right.  At the sane time the Defendant turned resulting in collision.

Mr. Justice Pearlman found both parties equally to blame for the incident.  In doing so the Court provided the following reasons:

[66] By passing to the right of the stopped eastbound vehicles, Mr. Kimber put himself in a position where he was not visible to a left-turning driver and where his own view of traffic turning across his path was blocked by the vehicles to his left.

[67] The plaintiff maintains that he was the dominant driver with the right of way as he approached the intersection and that under s. 174 of the Motor Vehicle Act, and that Ms. Wong, as the servient driver intending to turn left, was required to yield the right of way to him.

[68] As Madam Justice Ballance observed in Henry v. Bennett, 2011 BCSC 1254 at para. 73:

The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully …

[69] Here, that analysis does not apply where Mr. Kimber was in breach of s. 158 of the Motor Vehicle Act and his common law duty to take reasonable care by keeping a proper lookout.

[70] However, that does not absolve Ms. Wong from liability.  Ms. Wong made the left turn knowing cyclists using the oncoming lane often rode to the right of vehicles.  She knew she had to keep a lookout and would have to yield to any oncoming traffic, including cyclists that presented an immediate hazard.

[71] She began her turn from a point where she was unable to see beyond the windshield of the vehicle stopped at the western entrance to the intersection.   She made a continuous accelerating turn and did not stop or pause when she reached the point, just across the centre line, where she had a sight-line that would have enabled her to see the plaintiff.  Had she inched forward or stopped when she had a clear sight-line, the plaintiff would have passed safely in front of her and the accident would have been avoided.

[72] I find that in heavy traffic and where her view of the eastbound lane was limited, Ms. Wong was negligent in failing to inch forward until she could see whether there was an obstacle to her safely completing her left-hand turn.

[73] I turn now to consider whether the plaintiff was contributorily negligent.  As he passed stopped traffic on the right, Mr. Kimber ought to have been alert to the potential danger.  He failed to keep a proper lookout before entering the intersection.  He failed to take reasonable care for his own safety or that of other road users.  Here, the plaintiff could have pulled into the line of slow moving or stopped vehicles and then taken his turn to pass through the intersection.  Alternatively, the plaintiff ought to have been alert to the danger of passing stopped traffic at the intersection and ought to have brought his cycle to a stop to the right of the red Hyundai where he could observe traffic turning into the intersection.  Had he done so the collision would have been avoided.  I find that the plaintiff was also negligent and that his negligence was a cause of the accident.

[74] The apportionment of liability requires a consideration of the degree to which each party is at fault.  Fault is apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties:  Cempel v. Harrison Hot Springs, [1997] B.C.J. No. 2853 at para. 24 (B.C.C.A.).

[75] Here, the plaintiff and the defendant were both familiar with the intersection where the accident occurred.  For her part, the defendant was aware of the risk of cyclists approaching to the right of oncoming eastbound traffic but made her left turn without maintaining a proper lookout for a known risk.

[76] For his part, the plaintiff ought to have slowed down and entered the line of eastbound vehicles before passing through the intersection, or if he remained to the right of the line of stopped vehicles, he ought to have stopped alongside the stationary Hyundai before proceeding into the intersection, where he would have had an unobstructed view of the hazard ahead.

[77] In my view, the plaintiff and the defendant are equally at fault.  I apportion liability 50 percent to each of the plaintiff and the defendant.