Tag: Ekman v. Cook

Plaintiff Awarded Full Costs and Disbursements Despite 25/75 Liability Split

Helpful reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs and disbursements despite a split of liability.
In today’s case (Ekman v. Cook) the Plaintiff suffered serious injuries in a collision for which fault was disputed.  Liability and quantum were severed and at the liability trial the Court found that the Plaintiff was 75% responsible for the crash with the Defendant bearing the balance of blame.
The parties eventually settled for $135,000 plus taxable costs and disbursements but then could not agree on what these were.  ICBC argued the Plaintiff is only entitled to 25% of these on the basis of the liability split.  Mr. Justice Weatherill disagreed and in awarding full costs to the Plaintiff provided the following reasons:

[7]             Section 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333, sets out what is often referred to as the “usual rule.”  It provides as follows:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss….

28]         In my view, an award to the plaintiff of only 25 percent of his taxable costs and disbursements in this case will result in an injustice.  The defendants forced the plaintiff to trial and to have to incur 100 percent of those costs and disbursements in order to obtain any relief whatsoever. 

[29]         An award of only 25 percent of the plaintiff’s costs when 100 percent of his costs were required to be incurred to achieve the result that he did would have a profound effect on his overall recovery.  In my view, it is appropriate that the defendants be liable to pay those costs.

[30]         Here, the plaintiff achieved substantial success, that, as I have said, would be defeated if costs were awarded in accordance with the usual rule. 

[31]         Accordingly, I am exercising my discretion in favour of the plaintiff, and I am awarding him 100 percent of his taxable costs and disbursements in this matter.

[32]         Had the plaintiff taken the position that he was not contributorily negligent to a significant degree, or had the defendants conceded the possibility of some negligence on their part, it is possible that I would have exercised my discretion in a different fashion.  The plaintiff is entitled to his costs of this application.

[33]         I do want to thank both counsel for their very thorough and helpful submissions.

Motorist Passing Left Hand Turning Vehicle Found 75% at Fault for Collision

Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.

In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle.  The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles.  At the same time the Defendant commenced a left hand turn into her driveway.  Both motorists were found at fault with the Plaintiff shouldering 75% of the blame.  In reaching this decision Mr. Justice Weatherill provided the following reasons:
[76]         Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted.  She ought reasonably to have been alive to the possibility of a passing vehicle.  She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn.  If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have. 
[77]         Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely.  I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident.  Each is partly liable for the accident.
[78]         I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision.  It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left.  The Truck/Trailer’s left turn signal should have been evident to him.  It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass.  The plaintiff did not do so.
[79]         In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook.  The defendant William Joseph Cook is vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of theMotor Vehicle Act.

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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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