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Court Directs Early UMP Payment Noting "The Application of Law Should Not Be Blind to Practical Solutions"

Written by admin on . Posted in ICBC UMP Cases. 53 Comments on Court Directs Early UMP Payment Noting "The Application of Law Should Not Be Blind to Practical Solutions"

Reasons for judgement were released by the BC Supreme Court, Kelowna Registry, creating a practical solution to a real world problem, getting a judgement paid in the face of ongoing claims which may exceed a Defendant’s coverage.
In this week’s case (Clark v. Bullock) the Plaintiff along with other individuals were injured in a serious collision.  The Plaintiff’c claim proceeded to trial and damages of $550,000 were assessed.  The Defendant’s had $5,000,000 of liability coverage however, there were ongoing claims involving injured infants and there was “a real and legitimate concern that there may not be sufficient coverage” to pay all the claims.
The Plaintiff had Underinsured Motorist Protection however a practical difficulty arose in that those funds could not be forced to be paid until it can be proven the Defendant’s were underinsured.  In this case that could have taken many years as the infants claims were not yet ready to be quantified.  This left the 67 year old plaintiff facing a real possibility that he could not receive payment on his judgement for a number of years.  The Court, with the consent of the parties, fashioned a sensible solution and ordered that the money be paid via the UMP policy even though it technically was not accessible at this time.  Mr. Justice Betton provided the following sensible reasons:
 
[23]         In this particular case, ICBC determined that it would waive the entitlement that it has by virtue of the legislation to require that Mr. Clark exhaust all of his remedies, including awaiting the payment of his pro rata entitlement to the $5,000,000 coverage under the Bullock policy; that is, ICBC would waive its entitlement to insist on all of those steps being taken before accessing the underinsured motorist protection coverage.
[24]         The condition it attaches is that it requires a declaration from court that would protect it against the potential for having to pay out more than the amount of the Bullock policy.
[25]         With that concession or that position being adopted by ICBC, these parties come before me with a request for a declaration. That declaration essentially allows ICBC to access the underinsured motorist protection coverage available to Mr. Clark to pay the amount that Justice Barrow has determined Mr. Clark is entitled to with adjustments as agreed to by the parties….
[30]         In my view, the interpretation of the statutes and the application of the law should not be blind to practical solutions when parties, fully cognizant of their rights and entitlement, present such a proposal. The court should make efforts to facilitate that, so long as it is not running afoul of legislation or established legal precedent, and does not prejudice parties who would have an interest in the pool of funds that they would have available to them.
[31]         I am satisfied in these circumstances that, indeed, this arrangement is in the interests of both Mr. Clark and the Insurance Corporation of British Columbia, the applicants before me, and it does not prejudice or adversely affect the rights of the other entities, all of whom have been served with notice of this application and have chosen not to participate.
[32]         The only other entity which is not a party that may, in a general sense, have an interest in this type of situation would be the Public Guardian and Trustee who, through its statutory obligation, has an interest in protecting infants in this type of context.
[33]         I should say as well that all of those other parties are represented by counsel. No interested party in this matter is self-represented or unrepresented.
[34]         I have chosen and determined not to require that there be any notice to the Public Guardian and Trustee, or that it be served with this application, because I am satisfied that the declaration which I will be making does not adversely affect the infants who are plaintiffs in separate proceedings arising out of this collision. They will still have full access to their proportionate shares of the insurance policy limits of the Bullocks.
[35]         Accordingly, I will make the declaration.

Left Turning Driver Found 100% at Fault For Striking Pedestrian in a Marked Crosswalk

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

Adding to this site’s archived judgement database addressing collisions involving pedestrians, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a left hand turning vehicle and a pedestrian.
In last week’s case (Han v. Chahal) the Plaintiff was walking in a marked crosswalk southbound across 72nd Avenue in Surrey, BC.  At the same time the Defendant motorist approached from the oncoming direction and attempted to turn left.  The Defendant struck the Plaintiff.   The Defendant conceded fault at trial but argued the Plaintiff was 25% responsible.  Mr. Justice Verhoeven disagreed finding the Defendant was solely to blame for this collision.  In reaching this conclusion the Court provided the following reasons:
[18]         I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes.  She testified that she had proceeded about four steps when she was struck.  The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane.  Ms. Chahal’s evidence about the accident details was generally vague.  However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act.  Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb.  I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle.  She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.
[19]         It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff.  The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped.  The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping.  This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”.  This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck.  Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not.  I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.
[20]         The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident.  There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision.  The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.
[21]         The defendants rely upon Brumm v. Inglis, [1997] B.C.J. No. 1181. However, that case is clearly distinguishable.  There, the plaintiff walked in front of the defendant’s vehicle as it was stopped at an exit from a driveway onto a busy street, waiting for a break in heavy traffic.  The plaintiff could see the driver of the vehicle.  She chose to walk in front of the vehicle, which pulled forward as she did so.  In this context, Mr. Justice Pitfield stated:
She knew of the defendant’s intended actions. She knew or should have known there was danger to her personal safety if she passed in front of the vehicle without first making eye contact with the defendant and the vehicle accelerated suddenly in an attempt to enter the busy flow of traffic.
[22]         The circumstances of the case at bar bear no resemblance to those in Brumm.  More specifically, in the case at bar, it cannot be said that the plaintiff “knew of the defendant’s intended actions” other than perhaps in a general way, nor can it be said that there was something that she realistically could or should have done or refrained from doing in consideration for her own safety.
[23]         I conclude that the defendants have not established that the plaintiff was contributorily negligent.  It follows that the defendants are fully liable for the accident.

ICBC Opposes Translator Fees on Basis of Law Firm Advertising

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Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the reasonableness of private translator fees incurred by a lawfirm advancing a personal injury case.
In this week’s case (Jin v. Caleca) the Plaintiff, whose first language is Mandarin and whose “ability to communicate in the English language is very limited” hired a personal injury lawfirm to advance her case.  The firm hired a translator which assisted in communicating with the client.  When the case settled ICBC challenged this disbursement arguing that based on the law firm’s advertisements ICBC should not be on the hook for this expense.  District Registrar Cameron disagreed and ordered that the disbursement be paid. In doing so the Court provided the following reasons:
[4]             The Defendants do not take any issue with the decision by the law firm to retain a translator to assist the lawyers in the firm to fully and effectively communicate with the Plaintiff.  It is conceded that this was a proper or necessary disbursement.
[5]             Further, the Defendants do not take any issue with the reasonableness of the translation fees claimed in the sum of $1,122.27. Rather, they ground their objection to paying this disbursement on their interpretation of the print advertising done by the law firm aimed at attracting new clients to the firm.
[6]             There is a considerable amount of affidavit evidence before me, but the matter resolves down to this:  at the time that this retainer agreement was entered into on February 5th, 2010, the law firm web site was silent as to what obligation, if any, a client would have to pay the cost of translation fees.  At the time the web site provided that the law firm offered services in a number of foreign languages.
[7]             Approximately one year later, in February 2011, the law firm web site advertisement was changed and it said that translator fees are provided “at no cost to you”. Based on this change to the web site advertising, Ms. Hall, on behalf of the Defendants, submitted that there should be read into the fee agreement between the Plaintiff in this case and the law firm a provision that she would be held harmless for any translation fees and as such she ought not to be able to recover them on this assessment.
[8]             With respect, I do not agree. While I will not express a view as to whether or not there ought to be any recovery of a translation disbursement incurred for a client who retained the law firm after the change to the advertisement in February 2011, it is common ground that in February 2010 when the subject retainer was entered into there was no term in the retainer agreement that held the Plaintiff harmless for any translation fees.
[9]             There was no evidence before me to support any amendment to the existing retainer agreement between the Plaintiff and her law firm and based upon the concessions I have noted that were made by the Defendants, the disbursement is allowed.

BC Apology Act Keeps Roadside Admission Out of Evidence

Written by admin on . Posted in ICBC Liability (fault) Cases. 58 Comments on BC Apology Act Keeps Roadside Admission Out of Evidence

Section 2 of BC’s Apology Act holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”  Although this law has existed for several years it has received little judicial attention.  In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.
In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision.  Fault was disputed.  After the collision the cyclist apparently apologized to the motorist.  Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:
[40]         Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized.  In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.
[41]         First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered.  Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability:  see the Apology Act, S.B.C. 2006, c. 19, s. 2.
[42]          Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused.  She did not remember saying anything about having over-extended or pushed herself too far on the bike ride.  Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized.  This describes Ms. Dupre’s situation.  Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.

Fault For Right Hand Turning Vehicle Striking Cyclist Discussed by BC Supreme Court

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision involving a right hand turning vehicle and a cyclist attempting to pass the vehicle on the inside lane.

In this week’s case (Nelson v. Lafarge Canada Inc.) the Plaintiff was “cycling hard and fast alongside the Truck as the two approached the Intersection in tandem.  Mr. Nelson’s speed exceeded the Truck’s and it is apparent he was overtaking it on the right as the Truck turned onto Nanaimo.”  There was video of the actual collision presented in evidence and it demonstrated that the Truck driver “did engage the Truck’s right signal prior to executing his right turn onto Nanaimo.  I accept that he did so well before he arrived at the Intersection after the light had turned green.”
As the truck turned, on a still green light, a collision occurred.  Madam Justice Dickson found both parties to blame for the collision with the cyclist bearing 65% of the fault.  In reaching this concluding the Court provided the following reasons:
[77]         I agree with counsel for the defendants that Mr. Conarroe was the dominant driver in the circumstances of this Accident.  He was proceeding on a green light in the appropriate lane and had signaled his right turn well in advance.  He had also looked around as he turned onto Nanaimo and, generally speaking, was entitled to assume that others would obey the rules of the road.  Nevertheless, the presence of cyclists in the adjacent curb lane was both proper and predictable.  In addition, I have found Mr. Conarroe could and should have kept a more vigilant look-out in the period leading up to the right turn to ensure that it could be safely made.
[78]         Had Mr. Conarroe kept a more vigilant look-out after he stopped for the red light on Hastings and before he started his right turn he would have observed Mr. Nelson cycling hard and fast in the curb lane behind or beside him.  It would have been apparent that Mr. Nelson was focusing straight ahead and might attempt to overtake on the right as the two approached the green light, despite the riskiness of such conduct.  Armed with this knowledge, Mr. Conarroe could have avoided the Accident by waiting to commence his turn in the Intersection until it was clear either that Mr. Nelson had abandoned the unfolding attempt to pass on the right or completed it successfully.  His failure to do so was a failure to take reasonable care and a contributing cause of the Accident.
[79]         Mr. Nelson also failed to take reasonable care for his own safety, which failure was a contributing cause of the Accident.  Although, based on Jang, I find that the curb lane was a through lane for cyclists I also find it was unsafe for him to attempt to pass the right-turning Truck when there was little, if any, margin for error associated with such an attempt.  As noted, this was a breach of s. 158(2)(a) of the Act.  It also fell well below the standard of care to be expected of a reasonably competent cyclist in all of the circumstances.
[80]         Mr. Nelson suffered serious harm and damage as a result of the Accident.  The damage has two proximate causes:  the negligence of both parties.  In these circumstances, liability must be apportioned between the two.
[81]         In assessing the respective fault and blameworthiness of the parties I must evaluate the extent or degree to which each departed from the standard of care owed under the circumstances.
[82]         In balancing blameworthiness, I find Mr. Nelson’s conduct constituted a significant departure from the requisite standard of care which created a risk of serious harm.  He was aware of the Truck travelling eastbound on his left but focused only on his own path forward and did not check for an activated right turn signal, which was there to be seen.  Instead, he tried to pass the Truck on the right without first determining whether such a movement could be made safely.  In my view, such conduct was very careless.
[83]         Mr. Conarroe’s conduct also constituted a significant departure from the requisite standard of care, taking into account the vigilance reasonably to be expected of a professional truck driver.  He waited far too long to look carefully and thoroughly around himself as he prepared to turn right.  This is particularly true given his knowledge of the Truck’s many blind spots.  In consequence, Mr. Conarroe was unaware of the fact that Mr. Nelson was cycling hard and fast in the adjacent curb lane after the light changed colour at the Intersection.  This failure was not momentary or minor, and it carried the risk of foreseeable harm of considerable magnitude.  In my view, however, it was not of the same degree as Mr. Nelson’s failure to take reasonable care for his own safety in attempting to pass a right-turning Truck on the right.
[84]         In all of the circumstances, I conclude that 65% of the fault for the Accident should be borne by Mr. Nelson and 35% should be borne by Mr. Conarroe.

$210,000 Non-Pecuniary Assessment for Moderate-Severe Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases. 45 Comments on $210,000 Non-Pecuniary Assessment for Moderate-Severe Traumatic Brain Injury

Adding to this site’s database of ICBC cases dealing with non-pecuniary damages for traumatic brain injury, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In this week’s case (Payne v. Miles) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk. Although fault was initially disputed the Defendant accepted blame for the crash on the second day of trial.  The Plaintiff suffered moderate to moderate-severe brain injury with ongoing complications which were expected to be permanent.  In assessing non-pecuniary damages at $210,000 Mr. Justice Voith provided the following reasons:
[44]         The medical experts agree that Ms. Payne suffered a moderate to moderate-severe brain injury. Her CT scans and MRI results depict changes that are consistent with an injury to the right temporal lobe.
[45]         The experts also state that the Accident occurred at a critical time in her development as she was preparing to make the transition from adolescence to independent adulthood (Dr. Anton); that it occurred at a time that negatively impacted her educational and vocational potential (Dr. Mok); and that an injury “in these formative years has a significant impact on [the plaintiff’s] ability to establish her own self-identity” (Dr. Foti)…
[79]         The Accident has fundamentally transformed and diminished Ms. Payne’s life. She lives a largely solitary existence. She has struggled with her sleep and with headaches as well as with serious depression and anxiety. Though these conditions have, in the main, either resolved or are in remission, she continues to have periods of low mood. She has periodic hallucinations. She sleeps with both the lights and television in her bedroom on as a means of dealing with these hallucinations. And she struggles with anger, irritability and periodic outbursts.
[80]         She has and will continue to have various forms of cognitive impairment. She has difficulties with memory, concentration and various forms of executive function. She has difficulty processing information. She is limited in her ability to read to periods of perhaps ten minutes. She struggles significantly with mental fatigue which, in turn, limits what she can achieve and which exacerbates her cognitive and emotional difficulties. She becomes overwhelmed and has meltdowns.
[81]         Her difficulties influence the most commonplace of activities. Though she drives without difficulty, she becomes anxious in new places. While she can use her computer and her cell phone without difficulty, relatively rudimentary computer programs have proven to be beyond her.
[82]         She has consistently failed or struggled in her academic endeavors. She has been constrained in her employment efforts to low or entry-level employment. These struggles and failures have influenced her confidence and self-image.
[83]         Her career and educational prospects are diminished. I will develop this evidence when I address Ms. Payne’s wage loss claim. At this point, I am focusing on the pleasure a person derives from school and from finding employment that is rewarding or fulfilling.
[84]         Her ability to live independently is impaired. She will have to be assisted on an ongoing basis with the various changes that life will inevitably bring. She will, for example, require assistance if she has children. In saying this I am addressing the loss of freedom and independence, so often taken for granted, that Ms. Payne will suffer.
[85]         Though her recovery has plateaued, she is at risk of further and ongoing difficulty. Dr. O’Shaughnessy opined that persons who have suffered from a major depression are at a 50% risk of suffering from a further period of depression. She is at greater risk of mood disorders and anxiety, of seizures, of bipolar disorders and of illnesses such as Alzheimer’s. She is more likely to get divorced. If she were to suffer a further brain injury or stroke, her “cognitive reserves” are depleted beyond what they would otherwise be. Simply put, she would be in a poorer position to respond and recover. Each of the foregoing conclusions arises directly from the opinions I was provided. None of these conclusions was challenged.
[86]          Dr. Anton opined that there is some risk, though relatively small, of further declines in her cognitive functioning. He also stated that, while some decline in function is associated with normal aging, Ms. Payne is at risk of a more rapid decline in such function.
[87]         All such risks or eventualities would further diminish Ms. Payne’s enjoyment of life…
[90]         In the result, and having regard to the foregoing authorities as well as the additional case law I was provided, I consider that an award of $210,000 fairly and reasonably compensates the plaintiff for her non-pecuniary loss.

$50,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archived posts addressing soft tissue injury non-pecuniary assessments, reasons for judgement were released earlier this month addressing such an injury.
In the recent case (DeGuzman v. Ge) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained various soft tissue injuries which lingered at the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Smart provided the following reasons:
[38]         Here, the plaintiff was 50 at the time of the MVA.  She has a physically demanding job.  She enjoyed a relatively active life away from work.  As stated, I accept her evidence and I find that while her pain has reduced since the MVA, she continues to have significant discomfort from her injuries.  I find that this has impacted her enjoyment of her work and her relationship with her co-workers.  It has also limited the activities she used to enjoy doing away from work, such as cooking, keeping her house and yard, walking, driving for pleasure, and caring for her grandnieces.
[39]         In my view, a fair and reasonable award of damages under this heading is $50,000.

Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

Written by admin on . Posted in Civil Procedure. 48 Comments on Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, addressing the entitlement of a witness to a collision obtaining a copy of a statement they provided to ICBC.
In last week’s case (Minnie v. ICBC) the petitioner was the witness to a collision involving a vehicle and a pedestrian.  She gave ICBC a statement detailing her account of what occurred.  The pedestrian ultimately sued the ICBC insured motorist for damages.  The witness wished to obtain a copy of her statement to ICBC but ICBC refused to disclose this.  The witness brought a Freedom of Information request for the statement but this did not prove fruitful.  The witness brought a petition in the BC Supreme Court.  ICBC opposed arguing there were further steps the witness could have taken through the Freedom of Information process and further that the statement was protected by litigation privilege.  Mr. Justice Steeves concluded that neither of these were valid reasons to keep a copy of the statement away from the witness.  In ordering ICBC to disclose a copy of the statement to the witness Mr. Justice Steeves provided the following reasons:
[41]  Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement.  The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it.  I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below.  I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties.  The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake.  The mistake can be only embarrassing to the non litigant and/or it can distort the evidence before the court.  Neither is desirable.
[42]  Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective.  The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it.  She did not do that.  In m view, she did not have to do it ad nor should she now be at a disadvantage greater than a party for fail
[43] The petitioner is entitled to a copy of her statements as soon as practicable in order to review them herself and with her solicitor. However, I set conditions on that disclosure to recognize the litigation privilege that also attaches to the statements.  The disclosure of the statements does not extend to disclosure by the petitioner to other persons, including the plaintiff in the accident that she witnessed (or counsel for the plaintiff).  If, ultimately, there are issues at trial that involve the petitioner’s statements, they will have to be resolved by the trial judge.
 

Single Vehicle Leaving Roadway With No Reasonable Explanation Sufficient to Prove Negligence

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

Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway.  The Plaintiff had no recall of how the collision occurred.  The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence.  Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred.  In so concluding the Court provided the following reasons:
[30]         Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability.  See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident.  In such cases, the plaintiff bears the burden of proof.  The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized:  see paras. 23-24.
[31]         However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident.  The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane.  The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction.  While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived.  The only reasonable inference to draw is that the defendant was driving while drunk.
[32]         I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant.  The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway.  There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash.  The Plaintiff, the sole survivor, had no recall of what occurred.   The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
[100]     The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash.  The posted speed limit was 110 kph.  The vehicle was travelling in excess of 130 kph at the time of the accident.  As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness.  I accept this evidence.  Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention. 
[101]     In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8.  The defendants led no evidence to the contrary.  

Court of Appeal Orders Return of Funds Paid After New Trial Ordered

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What happens when a litigant sues and wins, collects part of the judgement, but then a new trial is ordered after appeal?  Reasons for judgement were released by the BC Court of Appeal last week addressing such a situation.
In last week’s case (Camaso Estate v. Saanich (District)) the Plaintiff estate successfully sued for damages where the trial judge found a police officer was grossly negligent for fatally shooting the ‘disturbed’ plaintiff.  Damages of over $300,000 were assessed.  The Defendant appealed and pending appeal obtained an order for a partial stay upon the defendant paying the sum of $119,456.20 to the plaintiff.  The Defendant successfully appealed and obtained an order for a new trial.  The Defendant sought return of the $119,456.  The Plaintiff opposed arguing the Court of Appeal was functus and had no ability to make such an order.  BC’s High Court disagreed and provided the following reasons ordering the return of the funds:
[10]         We do not consider that we are being asked to revisit our order determining the appeal or to adjudicate upon any issue that should have been addressed at the hearing of the appeal.  We are being asked to give a procedural remedy arising out of a process that was initiated and ran its course in this court alone.  The trial court gave a money judgment without terms as to payment.  Terms of payment of the judgment were addressed only in this court in the form of a stay of execution application brought by the appellants under s. 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77.  We are not being asked to rehear or to reconsider any aspect of this appeal.  No variation of our order allowing the appeal is sought.  This is merely a housekeeping matter that arises out of the proceedings in this court.  Therefore, the doctrine of functus officio has no application. 
[11]         In a similar case, this court determined that the court has the power to make the kind of order sought by the appellants in the present case: Vaillancourt v. Molnar, 2004 BCCA 384.  In Vaillancourt, the court reduced the amount of a jury award for damages for personal injury with the result that the appellant/defendant, pursuant to a pre-appeal agreement between the parties, had paid the respondent about $72,000 more than she was entitled to receive.  The court relied on s. 9(8) of the Court of Appeal Act: 
[6]        We agree with counsel that this Court has jurisdiction to make an order for repayment of the overpayment. In that regard, we need look no further than s. 9(8) of the Court of Appeal Act, R.S.B.C. c. 77:
(8) For all purposes of and incidental to the hearing and determination of any matter and the amendment, execution and enforcement of any order and for the purpose of every other authority expressly or impliedly given to the Court of Appeal,
(a) the Court of Appeal has the power, authority and jurisdiction vested in the Supreme Court …
[7]        In the result, we conclude that it is appropriate to make the order sought by the appellant, namely, that the respondent shall pay to the appellant the amount of the excess payment, plus interest to the date of repayment.
[12]         See also Hoskin v. Han, 2005 BCCA 483.
[13]         In our opinion, the court retains the power under s. 9(8) to make the order sought, it being a procedural remedy incidental to the appeal and the stay of execution order.
[14]         There will be an order that the respondents forthwith pay to the appellants the sum of $119,456.20.