Tag: fault

Driver Liable to Passenger Ejected from Box of Truck

(Update November 2, 2011 – Note the below case was modified by the BC Court of Appeal with a finding that the motorist should be 100% at fault due to the absence of any evidence of contributory negligence)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, discussing the issue of fault when a passenger riding in the box of a truck is ejected and injured.
In today’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“.
Madam Justice Beames determined that the Plaintiff rose from a seated position in the course of the trip and then was ejected.  The court held that both the Plaintiff and the Defendant were at fault with the Defendant shouldering most of the blame.  Madam Justice Beames provided the following reasons:
[31] There is no question that the defendant was responsible for allowing the plaintiff and the other children to ride in the box of his truck. He did not have to allow the plaintiff to get into the box of the truck, and he had enough seats and seat belts, I find, inside the truck to accommodate all of his passengers, including the plaintiff…

[34] I find the defendant owed a duty of care to the plaintiff and that he breached that duty and failed to exercise a standard of care of a reasonable person in the same circumstances. That negligence was clearly causally connected to what happened to the plaintiff. The plaintiff would not have been injured had the defendant not allowed him to ride unrestrained in the box of his truck. It was foreseeable, in my view, that what occurred would or could occur.

[35] I turn now to the issue of contributory negligence on the part of the plaintiff…

[44] In the circumstances of this case, I would not find that the plaintiff was contributorily negligent simply by riding in the back, or the box, of the truck. He was allowed to be there by an elder from the Sun Dance ceremony which featured community, trust and respect for elders. However, I do find that the plaintiff was, by getting up from a seated position on the floor of the box in a moving truck, negligent in fact.

[45] Consequently, the defendant has proved contributory negligence…

[53] In all of the circumstances of this case, I apportion fault between them as follows: the plaintiff, 25 percent; the defendant, 75 percent.

Repost: Ice, Snow and Your ICBC Injury Claim


The first snow of the year is falling and with it will come the usual increase in motor vehicle accidents.  With this in mind I’m republishing a post I originally wrote in the early days of this blog:
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.

The Standard of Care For Drivers Approaching Flashing Green Lights


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the issue of fault for intersection crashes governed by a flashing green light.
In today’s case (Nonis v. Granata) the Plaintiff was involved in a collision with the Defendant’s vehicle.  The crash happened at a busy intersection in Burnaby, BC.  The Plaintiff approached an intersection which was governed by a stop sign in his direction of travel.  He left the stop sign and attempted to drive through the intersection which consisted of 6 lanes of travel.  Vehicles were stopped in the first 5 lanes.  As the Plaintiff entered the 6th lane the Plaintiff failed to see the Defendant’s oncoming vehicle and the collision occurred.
The Defendant was not speeding.  He was faced with a flashing green light as he approached the intersection and had the right of way.   Despite this the Defendant was found 25% at fault for the crash for not taking appropriate care in all of the circumstances.  In reaching this verdict Madam Justice Fisher provided the following reasons addressing motorists responsibility when approaching a flashing green light:

[12] A driver approaching a flashing traffic signal also has a duty to proceed with caution.  Section 131(5) provides that when a flashing green light is exhibited by a traffic control signal at an intersection,

(a) the driver of a vehicle approaching the intersection or signal and facing the signal must cause it to approach the intersection or signal in such a manner that he or she is able to cause the vehicle to stop before reaching the signal or any crosswalk in the vicinity of the signal if a stop should become necessary, and must yield the right of way to pedestrians lawfully in a crosswalk in the vicinity of the signal or in the intersection …

[13]         Although this section has been held to advantage pedestrians, the presence of a flashing green light may be considered in assessing the potential liability of a dominant driver involved in a collision with another vehicle: Gautreau v. Hollige, 2000 BCCA 390.  Accordingly, in the circumstances of this case, I am entitled to consider the flashing green light as a factor in assessing the driving of the defendant and his obligation to respond to the danger that was presented by the plaintiff…

[28] The defendant, while the dominant driver, proceeded toward an intersection with a flashing green light in circumstances where the traffic in the immediate two lanes to his left had either stopped or was barely moving.  In my view, he had a duty – consistent with s. 131(5) of the Act – to slow down sufficiently to be able to cause his vehicle to stop should this become necessary.  This he did not do.  His evidence was that he was driving at approximately 40 kilometres per hour.  Had he slowed down, he would have had a sufficient opportunity to avoid the collision, as he would have been in the same position as the vehicles to his left.  His failure to keep a proper lookout contributed to the accident….

[33] For all of these reasons, it is my view that both parties were at fault for this collision.  Because the defendant was the dominant driver, I consider him to be less at fault.  Although he failed to slow down, he was not speeding, as were the defendants in both Andrews and Hynna. Under the Negligence Act, I find the plaintiff 75% at fault and the defendant 25% at fault.

The Important Role of Independent Witnesses in Motor Vehicle Collision Lawsuits


When a crash happens its not unusual for the parties involved to have different versions of who is to blame.  When this occurs determining who will be found at fault in a subsequent lawsuit can be a difficult task.  When there are impartial and independent witnesses, however, the task of picking between differing versions can become easier.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Hough v. Dyck) the Parties were involved in a 2007 motor vehicle collision.  The Plaintiff’s pick up truck was rear-ended by the Defendant’s car.  The Plaintiff sued alleging the Defendant was at fault for driving carelessly.  The Defendant disagreed arguing that the Plaintiff cut in front of him and “abruptly stopped” leaving him without adequate time and space to safely bring his vehicle to a halt.
An independent witness to the collision came forward and provided the Court with her account as to what occurred.  She verified the Defendant’s evidence that the Plaintiff cut the Defendant off and then slammed on his brakes.  Ultimately the Court preferred the Defendant’s version of events and dismissed the lawsuit.  In doing so Madam Justice Baker provided the following comments:
[18] (The independent witness) Ms. Maynes testified that near the bottom of the hill, as traffic was approaching 92nd Avenue, she saw Mr. Hough’s vehicle pull across the double solid centre lines into the northbound lane, pass Mr. Dyck’s vehicle, swerve back into the southbound lane and then slam on its brakes.  She saw the brake lights of Mr. Dyck’s vehicle come on and saw the collision.  She said it was a minor impact, because of the relatively slow speed of travel due to heavy traffic….

[21]        I find Mr. Dyck to be a credible witness and I accept his testimony.  I consider Mr. Hough’s testimony to be inaccurate and unreliable.   The testimony of Ms. Maynes supports Mr. Dyck’s testimony that Mr. Hough caused the accident by first passing Mr. Dyck’s vehicle when passing was prohibited, as evidenced by a solid double centre line and then abruptly pulling back into Mr. Dyck’s lane and equally abruptly slamming on his brakes, for no good reason, and when it was foreseeable that a collision would result.  In doing so, he was negligent, and his negligence was the sole cause of the accident.

[22]        I am not persuaded that anything done or omitted to be done by Mr. Dyck caused or contributed to the accident.  He was cut off when Mr. Hough pulled back into his lane of travel and then stopped abruptly.

[23]        It follows that the action must be dismissed.  Mr. Dyck shall have his costs, payable by Mr. Hough, on Scale B.

The lesson motorist should take from this case is that independent witnesses can be vital to the success or failure of a personal injury lawsuit where fault is contested.  Following a collision, if possible, it is a good idea to take down the names and contact information of witnesses to the event prior to leaving the scene of the crash.

Rear-Ended Motorist Found 75% at Fault for Stopping for "No Apparent Reason"


As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault.  There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC.  Her vehicle was rear-ended by a truck driven by the Defendant.  She sued for damages and the Court was asked to decide who was at fault.
The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant.  Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash.  In coming to this finding the Court provided the following reasons:

[44]         I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45]         Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46]         In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

More on ICBC Claims, Fault and Credibility


After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault.  If there are no independent witnesses to a crash it can be difficult to decide which version is more believable.  When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say.  Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.
In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC.  The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel.  He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”
The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries.  There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence.  Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit.   The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“.  These were some of the reasons which caused the Court to prefer the Defendant’s version of events.  In dismissing the lawsuit the Court held as follows:

[48]        The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision.  For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.

Why Having the Right of Way is Not Always Enough


I’ve previously written that having the right of way is not always enough to escape blame for a motor vehicle collision.  Reasons for judgement were released today further demonstrating this point.
In today’s case (Hmaied v. Wilkinson) the Defendant was driving up a windy road in Port Moody, BC.  At the same time the Plaintiff, then 15 years old, was jaywalking in front of the Defendant.  The Plaintiff was “jogging slowly as he crossed the road“.
The Defendant was speeding.  He saw the Plaintiff jaywalking but “continued to drive at an excessive rate of speed directly toward (the Plaintiff)“.  The Plaintiff crossed beyond the Defendant’s lane of travel.  Unfortunately he dropped his cell phone and “instinctively turned back into the (defendant’s) lane and bent over to pick it up without looking in the direction of oncoming traffic”  As he straightened up after picking up his phone he was struck by the Defendant’s vehicle.
Despite having the right of way, the Defendant was found 50% at fault for the crash.  In coming to this finding Madam Justice Dickson provided the following reasons:

[34] I conclude that the plaintiff and the defendant both failed to exercise due care in all of the circumstances and that both failures were proximate causes of the Accident.  In my view, the parties are equally blameworthy and liability should be apportioned on a 50% basis to each of them.

[35] The defendant had the right of way, but he did not take reasonable precautions in response to the obvious hazard presented by a young person jaywalking across his path of travel.  I accept that he could not specifically foresee the plaintiff would drop his cell phone and move back into the middle eastbound lane in order to retrieve it. I do not accept, however, that he was entitled to assume the plaintiff would obey the rules of the road or otherwise behave in a predictable manner as he jogged diagonally across Clarke Road.  On the contrary, the defendant knew that the youthful plaintiff was behaving unsafely by jaywalking in the face of oncoming traffic.  In these circumstances, other forms of unsafe behaviour were predictably unpredictable and the defendant should have slowed down and changed lanes immediately when he saw the plaintiff.  Had he done so, the Accident would not have happened:  Nelson (Guardian ad litem of), supra; Ashe, supra; Claydon, supra; Karran, supra; Beauchamp, supra.

[36] The plaintiff also failed to exercise due care for his own well-being.  He jaywalked in the face of oncoming traffic and, mid-course, turned back to retrieve his cell phone without checking to see how close the approaching vehicles had come.  In so doing, he exposed himself to the risk that he would be struck by an approaching vehicle.  That risk was realised and his negligent actions were also a proximate cause of the Accident.

If you have the right of way but know that someone is failing to yield you must take reasonable steps to avoid a potential collision otherwise you can bear some of the blame.

Motorist Found 40% At Fault for Striking Jay-Walking Teenager

(Update: The below decision was upheld by the BC Court of Appeal in reasons for judgement dated August 3, 2011)

As I’ve previously written, motorists travelling with the right of way can still be found at fault for a collision in British Columbia.  If you have the right of way but know or ought to know that someone is not yielding you can be found at fault if you fail to take reasonable steps to avoid a collision in these circumstances.  This principle was well demonstrated in reasons for judgement released today by the BC Supreme Court, Kelowna Registry.
In today’s case (Walter v. Plummer) the 16 year old pedestrian Plaintiff was struck by the Defendant’s motorcycle.  The Plaintiff was jaywalking at the time of the collision.  The Plaintiff crossed in front of a stopped tractor trailer and stepped into the Defendant’s lane of travel.  This made it difficult to see the Plaintiff.  The Defendant was not speeding.  Despite this the Defendant was found partially at fault for the crash for failing to take reasonable care in all of the circumstances leading up to the crash.
The Court concluded that the Defendant was careless because she ought to have anticipated jaywalkers at the time and could have taken greater care in operating her motorcycle.  Mr. Justice Barrow provided the following useful summary in explaining why both parties were at fault for this crash:

[25] I am satisfied that Mr. Walter was crossing the street at a casual walking pace, neither particularly fast nor particularly slow. Ms. Plummer was travelling approximately one to two feet to the left of the mid-point of the southbound right turn lane. She saw Mr. Walter for the first time when he emerged from in front of the tractor-trailer truck and walked into her path of travel.

[26]         Based on Dr. Toor’s and Ms. Plummer’s evidence, I am satisfied that the point of impact between Mr. Walter and Ms. Plummer’s motorcycle was two or three feet into the right turn lane and that Mr. Walter was visible to Ms. Plummer for perhaps two more feet as he passed from in front of the tractor-trailer truck to the boundary of the right turn lane…

[41]         There are several significant features of the circumstances facing Ms. Plummer that serve to elevate the degree of care required.

[42]         The first is the reasonably foreseeable risk of jaywalking pedestrians. The defendant was aware that students frequently jaywalked across Rutland Road. Ms. White said that, in her experience, there were many jaywalking students in that area shortly after the schools are dismissed. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.

[43]         A second and related circumstance is that Ms. Plummer knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.

[44]         Finally, and significantly, Ms. Plummer was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.

[45]         All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent. It is a situation in which a driver ought to have been proceeding in an “alerted” state, to borrow from the categories used in the perception-response studies.

[46]         As to Mr. Walter, he owed a duty to take reasonable care for his own safety. He breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of Ms. Plummer. I apportion liability 60 percent to Mr. Walter and 40 percent to Ms. Plummer.

The Crash Was My Fault, on Second Thought…


After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

How Do BC Courts Determine Fault for a Crash?: The "But For" Test


When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.
BC Courts must, in most circumstances, use the “but for” test.  In the most basic terms, a driver has to exhibit some level of carelessness.  From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“.  If the answer is yes then the careless party must be found, at least partially, to blame for the accident.  This week the BC Court of Appeal discussed this area of law.
In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane.  It was dark and the Defendant remained stopped for a period of time.  The speed limit was 90 kilometers per hour.  He did not activate his brake lights or emergency flashers.  The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.
The Plaintiff sued for damages.  His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash.  (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded.  The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault.  In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:

[16]         I now turn to the legal test to establish causation.  In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test.  The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  At para. 21 of Resurfice, the Chief Justice said:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

[17]         The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.

[18]         In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms.

[19]         The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:

“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence.  It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event.  As I have explained, these implications are not correct – every event has multiple historical factual causes.  The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36.  It suggests a limit on the scope of liability.  There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy.  It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112, [1990] 3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.

[20]         The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test.  The judge must have employed a last clear chance analysis when he used the term “proximate”.  That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him.  The judge found that the defendant was negligent.  Indeed he could hardly have found otherwise.  The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.

[21]         The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati, [1996] 3 S.C.R. 458).  There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability.  In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury.  The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”.  I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.

[22]         In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent.  That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23).  The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis.  If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.

[23]         This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307, [1997] B.C.J. No. 350).  Normally a sudden stop does not create an unreasonable risk of harm.  However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.

[24]         I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.

If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”.  From there you need to ask “but for that wrongful act, the injury would not have occurred?“.  If the answer is yes then you have a theory on which to advance your case.

Contact

If you would like further information or require assistance, please get in touch.

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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