fault – BC INJURY LAW

Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

Written by admin on January 16, 2012. Posted in ICBC Liability (fault) Cases, Uncategorized. 48 Comments

With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions. With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances. Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Driver Fully Liable Following Passenger Ejection From Box of Pick Up Truck

Written by admin on November 3, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized.

The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.
In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck. The 12 year old Plaintiff was one of these children. In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
The Court heard no evidence as to how the Plaintiff came to fall out. At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box. The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected. The Plaintiff appealed this finding arguing there was no evidence to support this conclusion. The BC Court of Appeal agreed and placed 100% of the blame on the motorist. In doing so the Court provided the following reasons:

[14] A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches [1956] S.C.R. 787 at 793).

[15] In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck – whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.

[16] In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.

[17] I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.

When Servient Motorists Become Dominant

Written by admin on July 2, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized. 43 Comments

Section 175 of the Motor Vehicle Act addresses when a motorist faced with a stop sign gains the right of way when crossing a highway. In short, motorists faced with a stop sign can enter an intersection after stopping provided that approaching traffic is not “so close that it constitutes an immediate hazard“. Once a motorist complies with this requirement and “proceeds with caution” into the intersection they gain the right of way and approaching traffic must yield the right of way.
Anyone who has spent any time on the road knows that this reversal of the right of way is not always honoured by motorists. However, failure to follow section 175 of the Motor Vehicle Act can not only lead to a moving violation, but also to a significant apportionment of fault following a collision. This was discussed in reasons for judgement released last week by the BC Court of Appeal.
In last week’s case (Lutley v. Southern) the Defendant (Appellant) was attempting to cross Oak Street in Vancouver, BC. The Defendant was travelling on 67th Avenue. She had a stop sign in her direction of travel. At the intersection Oak Street had 6 lanes of travel. The Plaintiff (Respondent) was travelling in the lane furthest away from where the Defendant entered the intersection. As the Plaintiff approached the intersection she was faced with a flashing green light. Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
At trial both parties were found at fault with a 60/40 split of liability in the Plaintiff’s favour. The Defendant appealed arguing the Plaintiff should have shouldered more than 40% of the blame. The BCCA dismissed the Appeal finding that while there was a range of acceptable outcomes in apportioning blame there was no error in law in the trial judge’s assessment. There was, however, a strong dissent written by Mr. Justice Chiasson stating as follows:

[48] The respondent was under a positive obligation to be able to stop before entering the intersection. She was unable to do so. The appellant was lawfully in the intersection and entitled to the right of way. The respondent was passing stopped vehicles on her left with clear knowledge of potential danger at the intersection. On the evidence of the respondent and Mr. Nagy, it is apparent that the appellant had been in the intersection for some time. The respondent gave various estimates of how long the 67^th Avenue light had been green (from four to six seconds; it turned green when she was approximately three normal city blocks away; there was ample time for a pedestrian or motor vehicle to traverse the intersection). The appellant had no indication that there was a vehicle in the curb lane or that the respondent would enter the intersection in complete disregard of her statutory obligations.

[49] Lane six presented a new danger to the appellant. While in my view her speed through the intersection was not inappropriate, she testified that she did not slow down before entering lane six. The judge rejected her evidence that she looked up the lane and he concluded both vehicles were, at that point, travelling too quickly. Had the appellant slowed it is possible that she may have seen the respondent, although this also may have placed her into a position where the collision would have been more serious.

[50] While a dominant driver is entitled to assume servient drivers will obey the rules of the road, a dominant driver cannot act unrealistically. It is an unfortunate reality that servient drivers like the respondent do disregard their obligations and dominant drivers cannot ignore that fact. A dominant driver passing through an intersection who is confronted with a new risk – a seemingly empty curb lane the view of which is obstructed – must proceed with some caution.

[51] An appellate court rarely will interfere with a trial judge’s apportionment of liability (MacDonald (litigation guardian of) v. Goertz, 2009 BCCA 358, para. 58), but will do so if the judge has made a palpable and overriding error of fact, misapprehended the evidence or erred in principle. It is an error of law not to take into account the fact a party was the dominant driver (Bedwell v. McGill, 2008 BCCA 6, para. 59) or to fail to recognize the significance of a servient driver’s negligence (Gautreau v. Hollige, 2000 BCCA 390, para. 18; quoted in Bedwell)

[52] In my view, the trial judge erred in law by failing to conclude that the appellant was lawfully in the intersection and had the right of way and in failing to address the onerous responsibility of the respondent. The respondent was passing on the right of stopped vehicles, was the servient driver and obliged to yield the right of way to the appellant and was entering an intersection with a flashing green light with the obligation to be able to stop her vehicle before entering the intersection. I would place the majority of fault on the respondent and would apportion liability 85% against her and 15% against the appellant.

Servient Driver Found 100% at Fault for Intersection Collision

Written by admin on June 7, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection collision.
In today’s case (Minosky v. Brar) the motorists were involved in a two vehicle collision. They both claimed the other was at fault and both sued each other. Both trials were heard at the same time.
The collision occurred at the intersection of 121st Street and 64th Avenue in Surrey, BC. The Minosky vehicle was heading northbound on 121st. He was faced with a stop sign. The Brar vehicle was heading in the ‘fast’ eastbound through lane on 64th. As the Minosky vehicle attempted to drive through the intersection he struck the Brar vehicle.

Madam Justice Brown found the Minosky vehicle 100% at fault for the collision for failing to yield the right of way and not complying with the duty set out in s. 175 of the Motor Vehicle Act. In coming to this conclusion the Court provided the following useful reasons:

[8] I conclude that the Brar vehicle was much closer than Mr. Minosky believed it to be when he left the intersection. It was an immediate hazard. Ms. Brar was not speeding and was attending to traffic. She had no opportunity to stop and avoid the collision.

[9] Mr. Minosky argues that, based on Ms. Brar’s estimates of speed and distance, Ms. Brar would have had ample opportunity to avoid Mr. Minosky’s vehicle if she saw him moving out from the stop sign. Mr. Minosky argues that Ms. Brar said that she was some two to five car lengths from Mr. Minosky when she concluded that he wasn’t going to stop. Had this been so, she would have travelled by Mr. Minosky before he had an opportunity to enter her lane of travel.

[10] This argument places too much weight on Ms. Brar’s estimates of distance. When she first concluded that Mr. Minosky was not going to stop, it would have been an emergency situation. She said she slammed on her brakes and honked, but was not able to avoid the collision. In these circumstances, I do not expect that a person would be able to measure with precision the distance between her vehicle and the vehicle with which she was about to collide. I give little weight to Ms. Brar’s estimates of distance. Many people are poor judges of distance. However, I do accept her evidence of how the collision happened.

[11] Section 175 of the Motor Vehicle Act places the burden on Mr. Minosky to yield to traffic that is approaching so closely that it constitutes an immediate hazard. Mr. Minosky has not satisfied me that he yielded as required. Rather, I have concluded that when he entered the intersection, the Brar vehicle was an immediate hazard. I find that Mr. Minosky is 100% at fault.

The Duty of Motorists Approaching Flashing Green Lights

Written by admin on February 24, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized.

Further to my recent post discussing this topic, Section 131(5) of the BC Motor Vehicle Act requires a driver approaching a flashing green light to travel with sufficient caution so they can bring their vehicle to a stop should it be necessary. Failure to do so could result in fault for a crash even if another motorist fails to yield the right of way. This was discussed in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Lutley v. Southern) the Defendant was attempting to cross Oak Street in Vancouver, BC. The Defendant was travelling on 67th Avenue. She had a stop sign in her direction of travel. At the intersection Oak Street had 6 lanes of travel. The Plaintiff was travelling in the lane furthest away from where the Defendant entered the intersection. As the Plaintiff approached the intersection she was faced with a flashing green light. Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
Mr. Justice Rice found both drivers at fault with the Defendant shouldering 60% of the blame. Although the Plaintiff entered the intersection on a green light she was found partly to blame for failing to comply with section 131 of the Motor Vehicle Act. In addressing the issue of fault Mr. Justice Rice provided the following reasons:

[12] By the Motor Vehicle Act, s. 131(5), a driver approaching a green flashing light at an intersection is obliged to slow down sufficiently to be able to stop before the intersection and avoid an accident. I find that the plaintiff was negligent and in breach of her statutory duties by failing to slow down sufficiently to be able to stop at the intersection. She could see that her vision of the intersection was obstructed and would continue to be obstructed practically until she had reached the intersection itself. She should have applied her brakes as soon as the obstruction appeared and come to practically a stop at or near the intersection.

[13] By the Motor Vehicle Act, ss. 125, 186 a driver approaching a stop sign must come to a full stop. There is also a general duty to drive safely, maintain a proper lookout, and not to proceed forward until it is safe to do so. I find that the defendant was negligent and in breach of her statutory duty in failing to maintain a proper lookout and by accelerating through the intersection when it was not safe to do so…

[18] In conclusion, I find that both drivers were negligent and in breach of duties imposed upon them pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 at ss. 125, 141. I apportion liability at 60% to the defendant and 40% to the plaintiff.

Motorcyclists, "Staggered" Riding and Safe Distances

Written by admin on February 22, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized. 105 Comments

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.

$55,000 Non-Pecuniary Damages for Thoracic Outlet Syndrome

Written by admin on February 17, 2011. Posted in ICBC Liability (fault) Cases, ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing quantum and liability following a motorcycle accident.
In this week’s case (Langley v. Heppner) the Plaintiff was injured in a 2003 BC collision. The Plaintiff was operating a motorcycle and was following a vehicle operated by the Defendant. Both vehicles were behind a slow moving van. As the motorists approached a straight stretch of road both the Plaintiff and Defendant attempted to pass the van in the on-coming traffic lane. They did so at almost the same time resulting in a violent crash catapulting the Plaintiff about 60 feet.
Mr. Justice Barrow held that both motorists were at fault with the Defendant bearing 80% of the blame. Paragraphs 11-37 of the reasons for judgement are worth reviewing for the Courts discussion of liability.
The Plaintiff suffered various injuries. Most of these went on to heal however he was left with persistent neck and shoulder pain. Ultimately he was diagnosed with Thoracic Outlet Syndrome. The limitations related to this were expected to continue to improve however there was a likelihood of long standing symptoms. Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000. In doing so the Court provided the following reasons:
[43] Turning to Mr. Langley’s injuries more generally, he suffered a number of bruises and abrasions which resolved unremarkably. His low back was sore, and although it remained sore and painful for a considerable time following the accident, it was asymptomatic by the time of the trial (six years post-accident). His most significant and persistent injury is to his right shoulder and the right side of his neck…
[51] I am satisfied on a balance of probabilities that the plaintiff has thoracic outlet syndrome and that it is a result of the motor vehicle accident…
[58] Mr. Langley’s right shoulder and right neck pain are the most significant consequence of the accident. I accept that he is always in some degree of discomfort in these areas. His level of discomfort increases when he becomes fatigued, but it is most seriously aggravated when he does any activity that involves lifting his right arm to or above shoulder level…
I am satisfied that Mr. Langley’s functional abilities will improve in some respects, although not to a significant degree…
[81] In view of all of the foregoing, an appropriate award for non?pecuniary damages is $55,000.

"It was the Deer's Fault" Defence Rejected in BC Injury Claim

Written by admin on January 14, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized. 108 Comments

Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, addressing the issue of fault for a single vehicle collision.
In today’s case (Bassi v. Bassi) the Plaintiffs were passengers in a vehicle driven by the Defendant. The Defendant lost control resulting in a roll-over crash. The passengers were injured and sued for compensation claiming the Defendant was careless. The Defendant argued that he was not and that he lost control due to a deer in the roadway. Mr. Justice Cullen found the Defendant entirely at fault for the crash and in doing so provided the following analysis:

[20] As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part. In my view, it does not. Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.

[21] In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer. The defendant said he swerved because he “got a little nervous.” It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances. There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.

[22] Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures – and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.

[23] Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.” It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual. Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway. There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”

[24] In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.” It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway. Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.

[25] The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right. There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.

[26] In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident. In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.

[27] I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left. I, therefore, find liability in favour of the plaintiffs.

ICBC's Hit and Run Appeal "Doomed to Failure"

Written by admin on December 23, 2010. Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released today by the BC Court of Appeal dismissing ICBC’s appeal of judgment finding them liable for injuries caused during a 2004 “gas and dash” incident.
In today’s case (Nayar v. ICBC) the Plaintiff was the owner of a gas station. An unknown motorist fuelled her vehicle and attempted to drive away without paying. The Plaintiff confronted the unknown motorist and stood in front of her vehicle. The motorist then inched forward and revved her engine. The Plaintiff placed his palms on the hood of the vehicle at which time the motorist “accelerated to 100 kph while (the Plaintiff) lay on the hood of the vehicle, and then turned sharply, throwing him to the pavement“.
The Plaintiff could not ascertain the identity of the driver so he sued ICBC for compensation under section 24 of the Insurance (Vehicle) Act. At trial ICBC argued that “the plaintiff is wholly to blame for his injuries“. Madam Justice Gropper disagreed finding ICBC liable to pay the Plaintiff damages. In doing so the Court made the following findings:

[] It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault. The events and the injuries which the plaintiff sustained were due to Jane Doe’s blameworthiness. Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff’s injuries were the actions of Jane Doe.

[] Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase. The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases. This is a much more infallible gas-and-dash avoidance procedure.

[] In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[] Judgment is therefore entered against the nominal defendant, ICBC.

ICBC appealed this finding although the appeal was dismissed for lack of timely prosecution. ICBC Applied to reinstate the appeal but this failed as well with the BC High Court finding that ICBC’s appeal was ‘doomed to failure’. The Court of Appeal provided the following useful reasons:

[6] I am unable to see any error in principle in the reasons expressed for dismissing the application to reinstate the appeal. In my view, it is clear Groberman J.A. considered each of the criteria that govern the kind of application that was before him. As he stated, it was not for him to assess whether the appeal would succeed or fail save for the very limited purpose of deciding whether it was appropriate to reinstate it. That required him to consider the merit in the one ground of the appeal advanced. Having done so, he determined it was insufficient to justify reinstatement, which was the issue before him. That was his determination to make. I see nothing inconsistent in his effectively characterizing the merits of the appeal as being so very weak as to render the appeal doomed to failure. For the purpose of considering reinstatement, he did not have to decide there was absolutely no merit in the appeal to conclude it was doomed, only that there was insufficient merit to justify its being reinstated.

More on Intersection Crashes and the Issue of Fault – Left Turning Vehicles

Written by admin on December 17, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized. 55 Comments

Further to last week’s post on this topic, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for intersection crashes. This week’s case is of particular interest because a ‘dominant‘ driver was found completely at fault for striking a left hand turning vehicle at an intersection.
In today’s case (Kelly v. Yuen) the Plaintiff was attempting a left hand turn at a light controlled intersection in Vancouver, BC. As she turned the Defendant, who was approaching from the opposite direction, entered the intersection resulting in a collision. The Defendant was travelling in the curb lane which, at the time of the crash, was restricted to buses and bicycles. The Defendant argued that he had a green light and the Plaintiff was fully at fault. The Plaintiff argued that the Defendant should not have been in the restricted lane and was fully at fault. Ultimately the Court sided with the Plaintiff and allocated 100% of the responsibility for the crash on the through-driver. Mr. Justice MacKenzie provided the following summary of some legal principles at play in these types of cases:

[23] The legal principles with regards to left turn situations have been addressed in many cases. In Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 15, Legg J. stated:

In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way. The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care. Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs.

[24] In Carich v. Cook (1992), 90 D.L.R. (4th) 322 at 326 (B.C.C.A.), Lambert J.A. had this to say:

… The question as a driver turns left is whether there is any vehicle in any approaching lanes that constitutes an immediate hazard. If there is, the turn should not be made. If there is not, then the turn can be made and of course, care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime. …

[25] Of course, each case must be determined on its own particular facts. For example, in Uyeyama (Guardian ad litem of) v. Wittenberg, [1985] B.C.J. No. 1883 (C.A.), the BC Court of Appeal determined that a left-turning was not negligent for having entered an intersection, having failed to detect the excessive speed of the defendant’s vehicle. In addition, the left-turning driver was entitled to assume that the oncoming vehicle would stop at a red light and according to traffic law. The court concluded at para. 44 that the left turning driver had “exercised due care and commendable prudence in taking the action she did in attempting to make a difficult left turn.”

[26] This case was cited with approval by the BC Court of Appeal in Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.).

[27] The court in Kokkinis considered other cases where the court held in favour of the servient driver. The court looked to Morgan v. Hauck (1988), 27 B.C.L.R. (2d) 118 (C.A.), a case where the BC Court of Appeal held that a dominant vehicle which had accelerated towards an intersection despite amber warning lights and then entered the intersection when the light was red could not rely on the relevant section of the Motor Vehicle Act to escape liability. In Kokkinis at para. 6, Newbury J.A. speaking for the court summarized the position taken in Morgan as follows:

… Esson, J.A. (as he then was), for example emphasised the “heavy onus which rests upon drivers approaching signals of this kind to make due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day. Their clear duty is to comply with the warning lights and to not ‘run the red’.” But for the fact that appellate courts should, he said, vary apportionments of blame made by trial judges only in very rare circumstances, Esson, J.A. (with whom Macfarlane, J.A. concurred) would have considered setting aside even the 10 percent allocation of fault.

[28] At para. 7 of Kokkinis, Newbury J.A. considered the Court of Appeal’s decision in Brucks v. Caslavsky, 45 B.C.A.C. 62, and stated the following:

A more recent case from this Court along similar lines is Brucks et al. v. Caslavsky et al. (19 April 1994) Vancouver Registry CA016390 (B.C.C.A.), which apparently was not cited to the trial judge. There, this Court rejected the argument that the onus placed by s. 176 of the Act is “absolute” and that in deciding whether an oncoming car constitutes an “immediate hazard”, a left-turning driver must consider the possibility that any oncoming motorist may intend to speed through an intersection and disobey the traffic signal. Taylor, J.A. for the Court quoted the well-known statement of principle of Lord Atkinson in Toronto Ry. Co. v. King et al. [1908] A.C. 260, at 269:

. . . traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less on the assumption that the drivers of all other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.

[29] Even though Kokkinis and Morgan dealt with vehicles which approached an intersection and turned left on an amber light, the principles and observations stated in these decisions are helpful. At para. 10 of Kokkinis the court stated that the servient driver should not be faulted for having diverted her attention momentarily from oncoming traffic to check cross traffic. This is because servient drivers have “the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection.”

[30] At the same paragraph, the court added:

… To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. …

[31] The authorities make it clear in my opinion that for liability to be found against the dominant driver in situations where the servient driver is making a left turn in front of stopped traffic, the evidence must establish that the dominant driver had a sufficient opportunity to avoid the accident, of which a reasonably careful and skilful driver would have availed him or herself (Pacheco, para. 18).

In finding the Defendant fully at fault the Court reasoned as follows:

[59] The circumstances here are significantly different. This is not a situation where the servient driver has disregarded her statutory duty. Here it is just the reverse. Mr. Yuen flagrantly ignored the restriction on travel in the curb lane in a clear attempt, in my opinion, to drive along the restricted lane in order to get to his destination earlier rather than wait like other responsible drivers who were complying with the curb lane restriction. As Esson J.A. said in Morgan, I am satisfied that Mr. Yuen should have made “due allowance for the possibility that there will be a vehicle seeking to make a turn such as the plaintiff was making on this day”.

[60] As Ker J. said in Rothenbusch at para. 149, “Who has the statutory right of way is informative; however, it does not determine liability in an accident. Drivers with a statutory right of way must still exercise caution to avoid accidents where possible.”

[61] In these circumstances, I am satisfied a reasonably careful and prudent driver would not have pulled into the restricted curb lane, as Mr. Yuen did with limited vision, and accelerate towards a backed up intersection at an excessive rate of speed. As the dominant driver, Mr. Yuen was not required to take “extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle.” (Salaam v. Abramovic, 2010 BCCA 212 at para. 25). However, I am satisfied a reasonably prudent driver, exercising reasonable caution, would have had a sufficient opportunity to avoid the accident.

[62] Furthermore, Ms. Kelly did not breach her statutory duty under s. 174 to yield the right of way. She took reasonable steps to determine she could make the left turn safely. The evidence which I have accepted establishes that when Ms. Kelly looked right and entered the curb lane, the Yuen vehicle was not “so close as to constitute an immediate hazard”.

[63] As a result, I am satisfied that the accident was caused solely by the negligent driving of Mr. Yuen. The defence has not established any contributory negligence on the part of Ms. Kelly.

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