Reasons for judgement were released last week by the BC Supreme Court finding that Rule 14-1(15) provides the court with discretion to award costs to a Defendant following a finding of contributory negligence as against a Plaintiff.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was involved in a motorcycle collision. At trial she was found 30% at fault with the Defendant bearing 70% of the blame. The Court awarded the Plaintiff 70% of her costs in accordance with the BC Negligence Act. Although not specifically asked to address this issue, the Court went further and found that the Rules of Court permit a costs award to be made against a Plaintiff if they are found contributorily negligent. Mr. Justice Halfyard provided the following reasons:
[41]Section 3 of the Negligence Act directs that the plaintiff shall receive 70% of her costs of this proceeding, from the defendant Martin. But that statute does not entitle the defendant Martin to receive 30% of his costs of the proceeding, from the plaintiff, because he sustained no damage or loss. See Bedwell v. McGill 2008 BCCA 526 at paras. 29-30 and 32.
[42]However, the defendant Martin was successful on the issue of contributory negligence on the part of the plaintiff. In my opinion, the costs entitlement of the plaintiff is defined solely by theNegligence Act. That statute directs that the plaintiff shall recover 70% of her costs of the proceeding from the defendant Martin. It seems to me that the Rules of Court relating to costs should govern the issue of whether the defendant Martin should recover any of his costs from the plaintiff. Rule 14-1(15) reads in part:
(15) The court may award costs
. . .
(b) that relate to some particular application, step or matter in or related to the proceeding . . .
[44]I think that the issue of whether the plaintiff was contributorily negligent is a “matter in or related to the proceeding” under the new rule… I conclude that the court has the discretion to award costs of the contributory negligence issue, to the defendant Martin. I am not suggesting that such costs should be awarded, only that the court has jurisdiction to entertain such an application under the Rules of Court.
(Please notethat the BC Court of Appeal granted leave to Appeal the below discussed decision.)
When a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under former Rule 57(18) to order that the unsuccessful defendant pay the successful defendants costs. Depending on the way a court goes about doing this will label the result a “Sanderson Order” or a “Bullock Order“. This rule has been reproduced in the New Rules of Court at Rule 14-1(18) and the first judgement I’m aware of considering this discretion under the New Rules was released last week by the BC Supreme Court, Nanaimo Registry.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was injured in a 2005 collision in Saanich, BC. The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position. Her husband unexpectedly cut in front of her. In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.
(Accident Reconstruction Software courtesy of SmartDraw) At trial Mr. Justice Halfyard found the Defendant 70% at fault and the Plaintiff 30% at fault. The Plaintiff also sued another Defendant although they were found faultless. The Plaintiff asked for a Sanderson order to minimize her costs consequences following trial although this application was dismissed. Prior to doing so Mr. Justice Halfyard provided the following test required to get a Sanderson or Bullock order:
[6]The court’s power to make the order sought by the plaintiff is set out in Rule 14-1(18), which states:
(18) If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant.
[7]In order to justify the exercise of discretion in his or her favour, a plaintiff must establish two elements, namely:
a)that it was reasonable for the plaintiff to have sued the successful defendant together with the unsuccessful defendant; and
b)that there was some conduct on the part of the unsuccessful defendant (such as asserting that the successful defendant was the culprit in the case or committing some act or acts which caused the plaintiff to bring the successful defendant into the litigation) which makes it just to require the unsuccessful defendant to pay the costs of the successful defendant.
See Grassi v. WIC Radio Ltd. 2001 BCCA 376 at paras 32-34; Davidson v. Tahtsa Timber Ltd. 2010 BCCA 528 at paras 53-54.
[8]The first element is a threshold requirement for the exercise of the court’s discretion. This question is looked at mainly from the perspective of the plaintiff. But if the plaintiff has alleged independent causes of action against the two defendants and if these two causes of action are not connected, the plaintiff will not be able to meet the threshold test. See Robertson v. North Island College Technical and Vocational Institute (1980), 26 B.C.L.R. 225 (C.A.) at paras 23-24; Davidson v. Tahtsa Timber Ltd. at para. 52.
It is not uncommon for motorcyclists to travel in a ‘staggered‘ formation when riding in groups. Typically one motorcyclist will travel within a few feet of the left of their lane of travel (the “A” position) with the following motorist travelling within a few feet of the right side of their lane of travel (the “C” position). This staggered position is used in part because section 194(4) of the BC Motor Vehicle Act prohibits motorcyclists from operating “their motorcycles side by side in the same direction in the same traffic lane“.
When travelling in groups of two it is important for the rear motorist to leave sufficient space between them and the lead motorist. Failing to do so could be negligent as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Nanaimo Registry.
In last week’s case (Brooks-Martin v. Martin) the Plaintiff was injured in a 2005 collision in Saanich, BC. The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position. Her husband unexpectedly cut in front of her. In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.
(Accident Reconstruction Software courtesy of SmartDraw)
She sued her husband for damages. Mr. Justice Halfyard found that the Defendant “cut in front of the plaintiff’s motorcycle and created an unreasonable risk to her safety.“. For this reason he was found legally responsible for the Plaintiff’s crash. The Plaintiff, however, was also found partially at fault and had her damages reduced by 30% as a result. In finding the Plaintiff partly at fault Mr. Justice Halfyard made the following observations: [148] By reason of s. 194(4) of the Motor Vehicle Act, it is not unlawful for two motorcycle drivers to ride side-by-side in the same traffic lane. I accept that it is permissible and common practice among motorcycle riders to ride in their lane of travel in the A position and C position, and then come to a stop at approximately the same time, side-by-side. But in my view, s. 194(4) does not operate for or against the plaintiff in this case…
[162] I am satisfied that the plaintiff failed to take reasonable care for her own safety, in several respects. In my opinion, a motorcycle driver who possessed reasonable driving skills and who was exercising reasonable care for her own safety would not have been travelling in the C position only two motorcycle lengths behind a lead motorcycle in the A position, at a speed of 40 kph, when both riders were approaching the back end of a stopped pickup truck and when she was not more than 14.56 metres away from that truck (and when the lead motorcycle driver in the A position was closer to that truck and travelling at least as fast as she was).
[163] I find that when the defendant Martin steered in front of her, the plaintiff was driving without due care and attention and at a speed that was excessive relative to the road and traffic conditions, in relation to both her husband’s motorcycle and the stopped truck. That conduct was contrary to s. 144(1) of the Motor Vehicle Act and also constituted negligence.
[164] I find also that, at the time the defendant Martin steered in front of her, the plaintiff was following the defendant Martin’s motorcycle more closely than was reasonable and prudent, having due regard for the speeds of the two motorcycles and the presence of the stopped pickup truck ahead of them. That conduct was contrary to s. 162(1) of the Motor Vehicle Act. I find that this conduct also constituted negligence on the part of the plaintiff.
[165] I am also satisfied that this driving conduct of the plaintiff in breach of the standard of care, was a cause of her losing control of her motorcycle. She put herself into a situation where the defendant Martin (before he swerved) was a potential hazard to her, and the stopped pickup truck was an actual hazard to her safety. If she had been travelling at a slower speed and at a greater distance behind the defendant Martin, and if she had slowed her motorcycle down sooner than she did, the plaintiff could have safely avoided the defendant Martin’s motorcycle and could have safely stopped behind the pickup truck. As it was, the plaintiff’s own negligent driving made it necessary for her to take emergency evasive action, which should not have been necessary. Taking that evasive action caused the plaintiff to lose control of her motorcycle, which resulted in her injury. I find that there was a substantial connection between the negligent driving of the plaintiff, and her injury. In my opinion, the evidence establishes on the balance of probabilities that the plaintiff was contributorily negligent.
When suing for damages as a result of a personal injury claim (specifically a Negligence claim) there are 3 basic matters that must be proven. These were discussed in reasons for judgement released earlier this week by the BC Supreme Court, Nanaimo Registry.
In this week’s case (Brooks-Martin v. Martin) the Plaintiff was involved in a 2005 motorcycle crash in Saanich, BC. She lost control of her bike. She claimed that another motorcyclist, who was travelling in front of her, swerved in front of her causing her crash. She sued the other motorist and also a company she alleged was responsible for failing to clean up gravel spilled onto the road which allegedly contributed to the crash.
At the close of the Plaintiff’s claim the Defendant brought a ‘no-evidence’ motion and asked the Court to dismiss the Plaintiff’s claim. Mr. Justice Halfyard refused to do so and provided the following succinct reasons summarizing the law of no-evidence motions and the basic requirements of a successful lawsuit for negligence in British Columbia: [5]The legal test that must be met by a defendant who makes a motion for non-suit has been stated many different ways by many different courts. Based on the authorities, I would state the rule in this way: In order to succeed on a motion for non-suit, a defendant must persuade the court that there is no evidence which is capable of proving one of the essential elements of the cause of action alleged against the defendant. The court must not weigh evidence or attempt to make findings of fact or to assess credibility. If an inference which is essential to the plaintiff’s case would be “mere speculation,” the defendant’s “no evidence” motion should be granted. See Fenton v. Baldo 2001 BCCA 95 at paragraphs 25-26; Seiler v. Mutual Fire Insurance Co. 2003 BCCA 696 at paragraph 12; Craigdarloch Holdings Ltd. at paragraphs 14 and 30; and Tran v. Kim Le Holdings Ltd. 2010 BCCA 156 at paragraph 2….
[27] A plaintiff who sues for damages for personal injury allegedly caused by the defendant’s negligence, must prove:
a) That the defendant owed him or her a duty of care;
b) That the defendant did an act or failed to do an act, which act or omission fell below the standard of care required of the defendant; and
c) That the defendant’s said act or omission caused an accident (which caused injury to the plaintiff).
(See Linden & Feldthusen, Canadian Tort Law, 8th edition (2006), page 108)
[28] In my opinion, there is some evidence which, if believed, could support findings of each and every essential element of the cause of action alleged against MacNutt. To my mind, none of the disputed inferences required to support the plaintiff’s case at this stage, would be “mere speculation.”
[29] It was for these reasons that I dismissed MacNutt’s motion for non-suit.
