Sometimes You Really Do Have to Sue Your Mother


Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.
When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.
In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway. At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.
The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

bc injury law, Carson v. Henyecz, Madam Justice Hyslop

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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