Tag: Cue v. Breitkreuz

Defendant Refused Costs at Trial For Failing to Consent to Small Claims Court Transfer


Reasons for judgement were released today addressing whether a Defendant who beat a formal settlement offer should be awarded costs.
In today’s case (Cue v. Breitkruez) the Plaintiff was involved in a rear-end collision.  He sued the rear motorist for damages.  Prior to trial the Defendant made a formal settlement offer for $1.  With liability being hotly contested the Plaintiff proposed that the case be transferred to Small Claims Court.  The Defendant refused to consent stating that “such a transfer would result in greater delay“.
At trial the Plaintiff’s case was dismissed with a finding that the Plaintiff was responsible for the collision.  (You can click here to read my summary of the trial judgement).  The Defendant then applied to be awarded double costs pursuant to Rule 9-1(5) because they beat their formal offer at trial.
Mr. Justice Smith dismissed the application noting that since Rule 14-1(10) generally restricts Plaintiff’s awarded an amount within the small claims court jurisdiction from being awarded trial costs that the Defendant should be refused costs for not agreeing to have the case heard in Provincial Court.  Specifically Mr. Justice Smith noted as follows:

7]             The matter remained in this court subject to an agreement to still limit the claim to what could be awarded in Provincial Court. Had my liability decision been different and the matter proceeded to an assessment of damages, Rule 14-1(10) would have been a bar to an award of any costs, other than disbursements, in favour of the plaintiff.  In my view, fairness requires that the same limitation apply to the successful defendant, particularly as the defendant did not agree to the proposed transfer to Provincial Court.

[8]             I therefore decline to award any costs to the defendant, other than disbursements.  There is therefore no need to consider the offer to settle because there are no costs to double.

Motorist Found At Fault for BC Car Crash Despite Being Rear-Ended

Further to my previous posts on this topic, the law is clear that a motorist who is rear-ended by another can be found at fault.  Such an outcome is somewhat unusual but given the right circumstances it can occur.  Reasons for judgement were released to today demonstrating this.
In today’s case (Cue v. Breitkreuz) the Plaintiff’s vehicle was involved in a rear-end collision.   He testified that he was rear-ended by the Defendant while he was stopped waiting to make a left hand turn.  An independent witness contradicted this account and testified that “the Plaintiff’s car accelerated, moved in front of the (defendant’s) truck, then slammed on the brakes” leaving the defendant with “(no) chance to stop before sliding into the plaintiff’s car”.
Mr. Justice Smith preferred the independent witness’ evidence over the Plaintiff’s and found the front motorist entirely at fault.  In reaching this conclusion the Court gave the following brief but useful summary of the law:

[15] Where there has been a rear-end collision, the onus shifts to the following driver to show that he or she was not at fault:  Robbie v. King, 2003 BCSC 1553 at para. 13. It is also the case that the driver of a following vehicle must allow a sufficient distance to stop safely in the event of a sudden or unanticipated stop by the vehicles ahead:  Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002 BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

[16] On the evidence before me in this case, I find that the defendant has discharged the onus upon him. I find that the plaintiff, by changing lanes in the manner that he did, created the situation in which the defendant did not have a safe stopping distance behind the plaintiff’s vehicle. Had the plaintiff not stopped, the defendant would have had the opportunity to slow down and allow the distance between them to increase. But when the plaintiff stopped immediately following the lane change, the defendant had no chance to avoid the collision. The defendant had no reason, in the moments leading up to the accident, to anticipate the plaintiff’s lane change and stop.

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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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