Tag: bc car crash cases

Agony of Collision Explained


This morning I was doing some quick research on the law of “agony of collision” and turned to my favourite practice guide for a quick answer.  Surprisingly I could not find a chapter discussing this topic so thought I would write my own summary.
In British Columbia our Courts have applied the “agony of collision” doctrine when discussing the issue of fault for a car crash when a motorist is faced with an imminent danger.   In these circumstance it is unfair to judge the reactive steps a motorist takes with 20/20 hindsight.  Instead the actions of the motorist need to be assessed with the reality of the “agony of collision” in mind.
This doctrine was summarized well in two BC cases I dug up today.  The first is Gerbrandt v. Deleeuw where Mister Justice Hunter stated as follows:

10           An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited , (1941) 3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber , (1974) 3 W.W.R. 97 (Sask. Q.B.)):

” Under circumstances of imminent danger an attempt to avoid a collision by turning one’s course instead of stopping the vehicle is not necessarily negligence.  Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence . . . one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

11           In Gill v. C.P.R. , (1973) 4 W.W.R. 593 Mr. Justice Spence speaking for the court said the following:

” It is trite law that, faced with a sudden emergency the creation of which the driver is not responsible, he cannot be held to a standard of conduct which one sitting in the calmness of a Courtroom later might determine was the best course … “

The doctrine is traced back to even deeper roots by the BC Court of Appeal in Tubbs v. O’Donovan where the BC High Court cited cases dating back to the early 1900’s applying this doctrine.  The Court held as follows:

Perfection is not demanded in emergent circumstances, as was well explained many years ago by this Court in Wood and Fraser v. Paget (1938), 53 B.C.R. 125 (C.A.), when it adopted this passage from Bywell Castle(1879), 4 P.D. 219 (C.A.):

For in my opinion the sound rule is, that a man in charge of a vessel is not to be held guilty of negligence, or as contributing to an accident, if in a sudden emergency caused by the default or negligence of another vessel, he does something which he might under the circumstances as known to him reasonably think proper; although those before whom the case comes for adjudication are, with a knowledge of all the facts, and with time to consider them, able to see that the course which he adopted was not in fact the best.

and this passage from Wallace v Bergius, [1915] S.C. 205, at 210:

I think the driver of a motor car is in the same position as the master of a ship in this respect, that if at the last moment he reasonably judges that a collision is absolutely inevitable unless he does something, and if that something might avoid a collision, he acts perfectly reasonably in taking that course.

Vehicle Damage and the Law of "Accelerated Depreciation"

When a vehicle is damaged in a BC car crash and subsequently repaired, the repaired vehicle may have a lower market value than it otherwise would have.  Can the owner of such a vehicle be compensated for this loss?  The answer is yes and is dealt with under a head of damage known as ‘accelerated depreciation’.  Reasons for judgment were released today by the BC Supreme Court dealing with this legal principle.
In today’s case (Cummings v. Daewoo Richmond) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff purchased a used vehicle from the Defendant Daewoo.  Seven days later she lost control of her vehicle and was injured as a result of the crash.  Madam Justice Gerow found that the Defendant sold the Plaintiff a vehicle with defective tires.  The court then concluded that “the accident was caused by a loss of friction due to the wear on the rear tires of the vehicle, and that Daewoo has failed to establish that Ms. Cummings’ operation of the vehicle either caused or contributed to the accident.”
The court went on to award the Plaintiff just over $38,000 in total damages including $7,600 for ‘accelerated depreciation’ of her vehicle.  I set Madam Gerow’s discussion out of this area of the law below:

Accelerated depreciation

[70] Ms. Cummings is claiming the amount of $7,600 for accelerated depreciation of the Nissan due to the damage it sustained in the accident. For the following reasons, I have concluded that an award in that amount for accelerated depreciation is appropriate.

[71] The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.

[72] Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73] It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.

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If you would like further information or require assistance, please get in touch.

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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