Motorist At Fault for Failing to Use Emergency Brake When Exiting Vehicle
Reasons for Judgement were released today by the BC Supreme Court, Fort St. John Registry, dealing with an interesting set of facts.
In today’s case (Shular v. Seneca Enterprises Ltd.) the Defendants owned/operated a motor home that stalled. The Plaintiff came across this stalled vehicle and tried to assist the Defendants. The Plaintiff helped move the motor home across the road then got under it trying to repair it when it rolled back over him and caused serious injury to his hip and leg.
The Defendants were found 75% responsible for the Plaintiff’s damages for failing to engage the emergency brake before allowing the Plaintiff under it and the Plaintiff was found 25% at fault for failing to verify if the vehicle was safe before trying to repair it.
In coming to this finding Madam Justice Kloegman made the following findings and analysis:
I find from all the evidence, on a balance of probabilities, that (the Defendant) likely knew, or ought to have known, that the plaintiff had gone under the motor home to try and change the gears of the motor home manually…
[9] I find that the defendants owed a duty of care to the plaintiff to ensure that the motor home was safely secured while he was under it. The reasonable standard of care in such a situation is set out in the Occupational Health and Safety Regulation, B.C. Reg. 296/97, of the Worker’s Compensation Act, R.S.B.C. 1996, c. 492, and the Seneca Enterprises Ltd. protocol as described by Wahl.
[10] Section 17.2.2(2)(b) of the Occupational Health and Safety Regulation of the Worker’s Compensation Act states that the following procedure must be in place if a vehicle is used to transport workers:
The parking brake must be engaged when the vehicle is left unattended and the wheels locked or chocked if the circumstances require.
[11] Wahl testified that it was standard protocol for them to lock and secure the vehicle if they were not in it. He said the front of the motor home was on a slight incline so it was common sense to put rocks under the wheels to keep the motor home from moving backwards.
[12] The evidence shows that this standard of care was clearly breached by the defendants. Bond openly admitted that he did not engage the emergency brake when he locked up the motor home, and took no steps to secure it from movement. Wahl admitted he was not sure whether they had put rocks under the tires; he thought that they had done so, but that they had not done a very good job of it.
[13] Given the defendants lack of care in the circumstances, they must be found liable to the plaintiff for the accident. In my opinion, it matters not whether the defendants felt intimidated by the plaintiff and his group. ..
[14] From the defendants’ conduct it is reasonable to infer that the plaintiff had the agreement and the consent of the defendants to push the motor home into a safer location and to attempt to repair it. The defendants cannot now say that because they did not initially ask the plaintiff for assistance, that they were not responsible for what ensued. I find that the motor home was in the care and control of the defendants throughout this time period, and that they never lost custody of it to the plaintiff or his group.
[15] The defendants submit as an alternative plea that the plaintiff was contributorily negligent, and I tend to agree. The plaintiff described what was quite a risky procedure of moving the transmission manually into drive so the motor home could be mobilized. He admitted in cross examination he didn’t know what gear the transmission was in, and that he “assumed” the emergency brake was on and “assumed” the motor home was in neutral. He made no independent check to see if his assumptions were correct and I find that he did not take sufficient care for his own safety in the circumstances. I accept his explanation that he thought Bond was attending to the brake, but he should have made sure of this before moving the gears.
[16] Given all the circumstances, and the respective degrees of fault, I find that the plaintiff should be held twenty-five percent liable for his injuries and that the defendants should be held seventy-five percent liable for the plaintiff’s injuries.