Skip to main content

Tag: fault

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

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


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.

Jury Finds Driver Faultless for Going Through Stop Sign in Icy Conditions

Written by admin on . Posted in ICBC Liability (fault) Cases, Jury Trials, Uncategorized.


I have written previously about the ‘invevitable accident‘ defence more accurately referred to as a ‘no-negligence‘ defence.  Today the BC Court of Appeal released reasons for judgement considering this area of the law in the context of a personal injury lawsuit that was dismissed by a BC Jury.
In today’s case (Bhangal v. Sloan) the Plaintiff was injured when his vehicle was struck by a pick-up truck driven by the Defendant.  The Defendant went through a stop sign without stopping.    His explanation was that he was not careless but rather could not stop due to the slope of the hill he was travelling down and ice on the roadway.  The Jury accepted this evidence and dismissed the Plaintiff’s claim finding that the Defendant was not careless in operating his truck.
The Plaintiff appealed arguing that the Jury was wrong and that their finding was one “no properly instructed jury could reach“.  The BC Court of Appeal disagreed and upheld the Jury dismissal of the personal injury lawsuit.  In reaching this conclusion the BC High Court reasoned as follows:

In Fontaine, the principle of res ipsa loquitur was put to one side as being no longer applicable in Canadian negligence law. It is no longer to be presumed that a car running off the road (or its loss of control) is attributable to the negligence of its driver. Rather, a case in negligence must be proven on both the direct and circumstantial evidence adduced, with effect being given to such inferences as the evidence properly supports.

[10] In Nason v. Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”

[11] Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.

[12] I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

[13] Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

[14] I would accordingly dismiss the appeal.

Can A Driver Be At Fault For A BC Car Crash If They Have The Right of Way?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 58 Comments on Can A Driver Be At Fault For A BC Car Crash If They Have The Right of Way?

The answer is yes and reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Salaam v. Abramovic) the Plaintiff was injured in a 2005 car crash in Surrey, BC.  She sued for damages.  At trial her case was dismissed (you can click here to read my post summarizing the trial judgement) .  She appealed and the BC High Court overturned the judgement finding that the other motorist was 25% to blame for the crash.
By way of background the crash happened at a “T” intersection.  The Plaintiff was faced with a stop sign.  She attempted to make a left hand turn across a through highway.   The Defendant, travelling down the highway, had the statutory right of way and is considered the ‘dominant driver‘.  As he approached the intersection the Plaintiff entered into his lane and the crash happened.  In finding that the Defendant was partially at fault for the crash despite having the right of way the BC Court of Appeal stated as follows:

[26] The oft-quoted passages from the concurring judgment of Cartwright and Locke JJ. in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 460-61 (S.C.C.), succinctly set out the duties of a driver in the dominant position:

The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

In applying this principle it is necessary to bear in mind the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7 C.R.C. 408 at p. 417, [1908] A.C. 260 at p. 269: “Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.”

While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[27] The defendant also cites the judgment of this Court in Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 at 277, 43 M.V.R. (2d) 44:

[15]      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.

[28] In Pacheco, the question was whether the plaintiff ought to have anticipated that the defendant, who was turning left at a controlled intersection, might proceed into his path when it was unsafe to do so.  In my view, the hazard posed by the plaintiff’s vehicle in this case is not analogous to the hazard posed by the defendant’s vehicle in Pacheco.  The defendant in the Pacheco case had done nothing to foreshadow that she would unlawfully cross into the plaintiff’s line of travel.  In contrast, in this case, the plaintiff had been in violation of the rules of the road continuously almost from the moment that the defendant saw her: she proceeded through a stop sign without coming to a full stop and continued to pull forward into his lane of travel as he approached the intersection.  Although he changed lanes to pull around her, she continued forward in a halting manner, not stopping at any time.

[29] The question in this case is whether the defendant exercised reasonable care in approaching the intersection.  When he was 350 feet away, the plaintiff’s vehicle started crossing the road and entered into his lane of travel.  A reasonable driver would have been put on notice that the plaintiff was not obeying the rules of the road and posed a hazard.  A reasonable driver would have exercised increased caution, paid close attention to the plaintiff’s vehicle and prepared to stop or to give it a wide berth.  Instead, the defendant insisted on his right of way.  A mere 100 feet from the intersection, when the plaintiff’s vehicle was fully in his lane of travel and still proceeding forward, the defendant changed lanes in an attempt to drive around her.  Until the last moment, he maintained his speed.  In the best case scenario, if the plaintiff had seen the defendant’s vehicle and stopped abruptly, the collision would have been avoided by mere inches.  Instead, the plaintiff continued forward, and the defendant’s vehicle struck the middle of the plaintiff’s vehicle.  In the circumstances, the defendant’s negligence contributed to the accident…

[34] In applying the “immediate hazard” test in order to determine negligence, the trial judge erred in law.  Applying the correct legal test to the defendant’s conduct (i.e., the test enunciated in Walker v. Brownlee), the defendant had a duty to take care when he approached the plaintiff’s car in the intersection, having had ample warning that she was not following the rules of the road.  A reasonable driver would not have insisted on right of way, and certainly would not have driven aggressively through the intersection, aiming to pass within inches of the plaintiff’s moving vehicle…

[38] I would find the plaintiff 75% at fault and the defendant 25% at fault.

British Columbia Injury Claims and Collisions With Animals

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 96 Comments on British Columbia Injury Claims and Collisions With Animals


When the driver of a vehicle strikes an animal in the roadway and injures their passengers they can only successfully sue for damages (a tort claim) if it can be demonstrated that the driver did something careless.  Sometimes collisions with animals are unavoidable even with the most careful driving and in these cases injury lawsuits against drivers get dismissed.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Freidooni v. Freidooni) the Plaintiff was injured when the vehicle she was occupying struck a deer.  The Plaintiff was sitting in the passenger seat.  Her husband was driving.  They were travelling in the left of two westbound lanes on a highway.  The speed limit was 110 kmph but the defendant was driving, in cruise control, at 130 kmph.   To the right of the highway was an ‘open field with no trees or shrubs that would preclude an individual from seeing animals next to the travelled protiomn of (the) Highway“,   There was vegetation to the left of the highway that “could have impeded the defendant’s view of deer in that areal“.
There were no vehicles which limited the driver’s view.  A deer entered the Defendant’s lane of travel and the collision occurred.  Neither he nor the Plaintiff saw the deer before impact.  The Defendant said he was not at fault in these circumstances arguing that “it cannot be determined with any certainty as to whether the deer entered the westbound lanes of Highway No. 16 from the open area to the north, that being the open field to the defendant’s right, or whether it emerged from the vegetation to the defendant’s left“.
Mr. Justice Shabbits disagreed with the Defendant and found him entirely at fault.  In coming to this conclusion he noted as follows:

[23] The defendant submits that it has not been shown that the deer did not emerge from cover in the median of the roadway, and that since neither the plaintiff nor the defendant saw the deer before the collision, it cannot be inferred that the defendant could have seen the deer in sufficient time to avoid the impact.

[24] The evidence, however, is unequivocal in that the deer approached the defendant’s vehicle from its right.  Even if it had initially emerged from the median of the roadway, it must have crossed entirely over the lane in which the defendant was driving before turning and re-entering the defendant’s lane of travel.  Alternatively, the deer emerged from the open field to the right of the highway.  I am of the opinion that in either case, the defendant’s failure to see the deer was negligent.  The only explanation as to why he did not see the deer is that he was not paying attention to the roadway.  The defendant was on cruise control on a wide roadway in perfect conditions with no other traffic about.  By his own account, he was drinking coffee and listening to music.  In my opinion, the reason why he did not see the deer on the roadway was that he was not paying attention.  He was not paying attention because he did not expect anything to be there.

[25] The accident occurred in an area where there is wildlife.  The defendant knew that.

[26] In White v. Webster, Esson J.A. says that the question comes down to this.  He says it was a virtually unavoidable inference that there was some absence of look out on the part of the driver.  I am of the same opinion in this case.  The defendant was not paying attention.  He did not see the deer when he should have seen it.  He took no evasive action to avoid the impact when he should have been able to do that.

[27] I find that the defendant was negligent.  He is liable for the accident.

When the driver of a vehicle injures passengers by colliding with an animal in British Columbia the passengers should be cautious before giving a statement to the driver’s insurance company addressing the issue of fault.   As I’ve previously written, if any issues of carelessness are glossed over in the statement it will certainly be used against you if you later seek to advance a tort claim for compensation for your injuries.

Agony of Collision Explained

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 109 Comments on Agony of Collision Explained


This morning I was doing some quick research on the law of “agony of collision” and turned to my favourite practice guide for a quick answer.  Surprisingly I could not find a chapter discussing this topic so thought I would write my own summary.
In British Columbia our Courts have applied the “agony of collision” doctrine when discussing the issue of fault for a car crash when a motorist is faced with an imminent danger.   In these circumstance it is unfair to judge the reactive steps a motorist takes with 20/20 hindsight.  Instead the actions of the motorist need to be assessed with the reality of the “agony of collision” in mind.
This doctrine was summarized well in two BC cases I dug up today.  The first is Gerbrandt v. Deleeuw where Mister Justice Hunter stated as follows:

10           An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited , (1941) 3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber , (1974) 3 W.W.R. 97 (Sask. Q.B.)):

” Under circumstances of imminent danger an attempt to avoid a collision by turning one’s course instead of stopping the vehicle is not necessarily negligence.  Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence . . . one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

11           In Gill v. C.P.R. , (1973) 4 W.W.R. 593 Mr. Justice Spence speaking for the court said the following:

” It is trite law that, faced with a sudden emergency the creation of which the driver is not responsible, he cannot be held to a standard of conduct which one sitting in the calmness of a Courtroom later might determine was the best course … “

The doctrine is traced back to even deeper roots by the BC Court of Appeal in Tubbs v. O’Donovan where the BC High Court cited cases dating back to the early 1900’s applying this doctrine.  The Court held as follows:

Perfection is not demanded in emergent circumstances, as was well explained many years ago by this Court in Wood and Fraser v. Paget (1938), 53 B.C.R. 125 (C.A.), when it adopted this passage from Bywell Castle(1879), 4 P.D. 219 (C.A.):

For in my opinion the sound rule is, that a man in charge of a vessel is not to be held guilty of negligence, or as contributing to an accident, if in a sudden emergency caused by the default or negligence of another vessel, he does something which he might under the circumstances as known to him reasonably think proper; although those before whom the case comes for adjudication are, with a knowledge of all the facts, and with time to consider them, able to see that the course which he adopted was not in fact the best.

and this passage from Wallace v Bergius, [1915] S.C. 205, at 210:

I think the driver of a motor car is in the same position as the master of a ship in this respect, that if at the last moment he reasonably judges that a collision is absolutely inevitable unless he does something, and if that something might avoid a collision, he acts perfectly reasonably in taking that course.

Uncontrolled Intersection Crashes, Who's At Fault?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 49 Comments on Uncontrolled Intersection Crashes, Who's At Fault?


When two vehicles enter an uncontrolled intersection at approximately the same time and a collision occurs, how do you determine who’s at fault?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of the law.
In today’s case (Vagramov v. Zipursky) the Plaintiff was involved in a 2004 car crash in Vancouver, BC.  The Plaintiff entered an uncontrolled intersection and collided with the Defendant’s vehicle which was attempting to cross the intersection at the same time.  Mr. Justice Gaul found that the Defendant was 100% responsible for the collision.  In doing so the Court provided the following useful summary of some of the legal principles that come into play in BC uncontrolled intersection crash lawsuits:

[129] The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the manner in which automobiles are driven on the roadways of our province. Section 144 of the MVA deals with the issue of careless driving, stating:

(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.

[130] Section 173(1) of the MVA sets out the statutory rules of the road for vehicles that approach an uncontrolled intersection of the nature present in the case at bar.  That section provides:

Except as provided in section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.

[131]     The law relating to the duties of motorists as they approach uncontrolled intersections was set out in the seminal case of Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) [Brownlee].  The following observations of  Mr. Justice Cartwright, at 461, are apposite to the case at bar:

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[132]     Another oft-cited case in the area of the duty of servient drivers is the Manitoba Court of Appeal decision in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 (Man. C.A.) [Scheving].  In his written reasons for a unanimous court, Mr. Justice Schultz articulates the appropriate principles to follow in cases such as the one presently before the court, at 358-359:

I think it fair to infer that this provision [the section of the Manitoba Highway Traffic Act that is similar to s. 175(1) of the BC Motor Vehicle Act] was made for the purpose of controlling automobile traffic, the speed of which makes impractical and ineffective a rule giving priority to whichever vehicle first reaches an open intersection. It need hardly be emphasized that inevitably there is confusion and great danger inherent in races to get to such an intersection, underlining the necessity for the present right-of-way rule. The word “approximately” as used in the above subsection means “about” or “nearly” and is the direct opposite of “exactly” or “precisely”. Therefore a vehicle approaches an intersection “at approximately the same time” as another vehicle if it approaches slightly before or slightly after such vehicle. Because the vehicle from the left reaches the intersection first — momentarily or a fraction of a moment ahead of the vehicle from the right– it cannot be said that the vehicle from the right has not approached it at “approximately” the same time.

What may be referred to as the old rule — that the car first reaching the intersection has the right-of-way — may properly be applied under certain circumstances. Thus, When the vehicle on the left reaches an open intersection substantially in advance of the vehicle on the right, i.e., where the vehicle on the right is at such a distance and travelling at such a speed that there is no reasonable danger–no apparent danger–of collision to be apprehended if the driver on the left proceeds into the intersection, then, under such circumstances, the driver on the left can with safety and with reason proceed into the intersection. However, it is obvious that under such circumstances, there being no question of precedence involved, there is no question of right-of-way involved either.

Prior entry into an intersection does not mean priority by a matter of a few feet or by a fraction of a second ahead of another vehicle; it means entry into an intersection with the opportunity of clearing it without obstructing the path of another vehicle under normal circumstances. “Who hit whom” is not the test.  The driver on the left, even though he may reach the intersection first, must yield the right-of-way to the driver on the right where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continue the same course at the same speed.

Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. 128 Comments on Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?


When you slip and fall and get injured on someone else’s property are you entitled to compensation?  The answer is not necessarily.
Injury in a slip and fall accident is only half of the equation.   The other half is fault.  The ‘occupier‘ of the property (or another defendant who owes you a duty of care) needs to be at fault for the slip and fall otherwise no successful claim for compensation can be brought.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.
In today’s case (Schray v. Jim Pattison Industries Ltd.) the Plaintiff fell (apparently on water) at a Save on Foods Grocery Store which was owned and operated by the Defendant.  The Plaintiff sued for her injuries alleging that the Defendant was at fault.  The Defendant brought a motion under Rule 18-A of the BC Supreme Court Rules to dismiss the case.  Madam Justice Arnold-Bailey denied the Defendant’s motion finding that the case was not suitable for summary dismissal.  Before reaching this conclusion, however, the Court summarized some of the legal principles behind a successful slip and fall lawsuit.   I reproduce these here for your convenience:

[21]        I agree that the prior summary trial judge set out the correct law in the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of the Occupier’s Liability Act:

3(1)      An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1) applies in relation to the

(a)      condition of the premises,

(b)      activities on the premises, or

(c)      conduct of third parties on the premises.

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A similar test applies under the common law.

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.).

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse. And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

The bottom line is that the issue of fault is key.  When considering whether to sue for a slip and fall injury thought should be put to the issue of what the defendant did wrong to cause the incident or should have done to prevent it.

In my continued efforts to cross-reference the current BC Rules of Court with the soon to be in force New BC Supreme Court Civil Rules I will point out that Rule 18-A is kept intact under the new Rules and is reproduced almost identically at Rule 9-7 “Summary Trial“.

Driver Found 100% Liable for Accident Caused During Careless U-Turn

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 133 Comments on Driver Found 100133 Liable for Accident Caused During Careless U-Turn


Reasons for judgement were released today by Mr. Justice Smith of the BC Supreme Court considering the issue of fault in a collision between a pick-up truck and a motorcycle.
In today’s case (Dhah v. Harris) the Plaintiff was driving his motorcycle northbound on River Road in Delta, BC.  As he was coming into the second turn of an ‘s-curve’ a pick up truck was making a U-Turn from the Southbound lane into the Northbound lane.  Approaching this truck the motorcyclist hit his brakes ‘pretty hard’, dropped his bike and then slid into the side of the pickup truck.
The driver of the pick up truck did not see the Plaintiff and only realized he was there upon impact.  Similarly the motorcyclist did not appreciate that the pick up truck was there until it was too late to avoid the collision.  There was no evidence that the motorcyclist was speeding.
Both driver’s claimed the other was at fault.  After a 3 day trial Mr. Justice Smith found the pick-up truck driver 100% at fault.  In coming to this conclusion he provided the following summary and application of the law relating to U-Turn collisions:

[22] I find it highly unlikely that the defendant was moving at the extremely slow speed that that would imply. I find it more likely that the defendant was focussed on the tightness of the turn and the need to avoid the ditch across the road and that he failed to pay sufficient attention to situation to his right. Either he allowed more time than he now recalls to elapse between looking right and beginning his turn or he simply failed to notice the plaintiff who was there to be seen.

[23] Even if the defendant was turning at an extremely slow speed and the plaintiff was not there to be seen when the defendant began his turn, the plaintiff obviously would have come into view at some point before the collision. On the defendant’s own evidence, he did not look to his right again before he crossed the double solid centre line.

[24] It is a matter of common knowledge that roads are typically marked with a double solid line at locations where drivers will have reduced visibility of the road ahead. Sections 155 (1)(a) and 156 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, read as follows:

155  (1) Despite anything in this Part, if a highway is marked with

(a) a solid double line, the driver of a vehicle must drive it to the right of the line only,

…

156  If the driver of a vehicle is causing the vehicle to enter or leave a highway and the driver has ascertained that he or she might do so with safety and does so without unreasonably affecting the travel of another vehicle, the provisions of sections 151 and 155 are suspended with respect to the driver while the vehicle is entering or leaving the highway.

[25] Counsel for the defendant argues that the defendant reasonably concluded that he could safely enter the roadway and was leaving enough distance for oncoming vehicles to adjust to his presence. He argues that the effect of s. 156, in those circumstances, is that once the defendant entered the roadway, other drivers including the plaintiff were required to “accommodate” his position. In effect, counsel argues that if the defendant determined on reasonable grounds that he could safely cross the centre line, he acquired the right of way from the moment he entered the roadway.

[26] I cannot accept that submission. Section 155(1)(a), standing alone, contains an outright prohibition against crossing a double solid line. Section 156 does no more than provide limited exceptions to that absolute prohibition. It does not, in my view, diminish the duty to proceed with caution and it does not remove the right of way from another driver who is approaching in his or her proper lane.

[27] In any event, the question of whether or not the defendant was in violation of the statutory provision is not determinative. The question is whether the defendant kept a proper lookout and took appropriate care in the circumstances:  Dickie Estate v. Dickie and De Sousa (1991), 5 B.C.A.C. 37 (C.A.).

[28] In Dickie, the plaintiff was in the process of making a u-turn across a double solid line when he was struck by the defendant who was approaching at an excessively high speed. The Court of Appeal said at para. 12:

[The plaintiff] was engaging in a manoeuvre that was fraught with danger. He placed himself and the oncoming drivers in a position of risk. That being so, in my opinion, the law required of him a very high degree of care which would manifest itself in a sharp lookout before he crossed over the solid double line into the northbound lanes on the causeway. There was nothing to prohibit Dickie from seeing the oncoming De Sousa vehicle before his vehicle entered the northbound lanes of travel.

[29] I find that the defendant in this case was similarly “engaging in a manoeuvre that was fraught with danger”. He was making a left turn across a double solid line at a point where there was no intersection or driveway—at a point where oncoming drivers would have no reason to anticipate vehicles entering the roadway. He knew there was a curve to his right and knew or ought to have known that oncoming drivers might have limited visibility. The location and the nature of his manoeuvre required him to pay particular attention to the ditch across the road and I have found that he did so at the expense of being attentive to oncoming traffic.

[30] I also note that the Court in Dickie referred to the need for a sharp lookout before the driver crossed the centre line and before he entered the northbound lanes. In the circumstances of this case, it was not sufficient for the defendant to form an opinion about the safety of his manoeuvre before he entered the roadway. He says that he looked right at that point, but, in my view, his duty to keep a sharp lookout continued beyond that. He gave no evidence of having looked again before crossing the centre line; in my view, reasonable prudence required that he should have done so.

[31] Therefore, I find that the collision at issue was caused by the negligence of the defendant. The question then becomes whether there was any contributory negligence on the part of the plaintiff.

Mr. Justice Smith went on to give reasons explaining why he found the Plaintiff faultless for this crash holding that “the Plaintiff was entitled to proceed on the assumption that all other vehicles will do what it is their duty to do, namely observe the rules regulating traffic”.  Paragraphs 32-37 of the reasons for judgement are worth reviewing for the Court’s full discussion of why this Plaintiff was faultless.

Can A Motorist Be At Fault For Being Rear-Ended?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 64 Comments on Can A Motorist Be At Fault For Being Rear-Ended?

(Please not the case discussed in the below post was overturned by the BC Court of Appeal who ordered a new trial.  You can read the BCCA decision by clicking here)
While unusual the answer is yes.  Reasons for judgement were released today discussing this area of the law.
In today’s case (Skinner v. Guo) the Plaintiff was involved in a 2006 BC Car Crash.  The Plaintiff was driving on Highway 1 when he rear-ended the Defendant’s vehicle which was stationary in the Plaintiff’s lane of travel.  The Defendant did not give any evidence at trial although it appears the Defendant stopped because he struck a coyote.  Given the Defendant’s lack of explanation for being stopped in a travelled portion of the roadway the Court found that he was in violation of s. 187 of the Motor Vehicle Act.
The Plaintiff argued that the Defendant was at fault for the collision for stopping his vehicle and failing to activate his emergency flashers.  Mr. Justice Harvey disagreed and found the Plaintiff 100% at fault for failing to see a stationary vehicle that was there to be seen.  Before dismissing the case Mr. Harvey said the following with respect to fault when a motorist rear ends another in British Columbia:

[15] All of the cases referred to me by counsel note that there is a high onus on a following driver, as stated in Molson v. Squamish Transfer Ltd. (1969), 7 D.L.R. (3d) 553 (B.C.S.C.).  One principle to be extracted from the rear?end cases is that when one car runs into another from behind, the onus is on the driver of the rear car to show that the collision was not occasioned by his fault.  However, each case must be decided upon its facts, and I have been referred to cases where substantial liability has been imposed upon the front driver and others where the following driver has been assessed one hundred percent of the claim.  I do not find this case similar to the authorities referred to me by counsel for the plaintiff, which include McMillan v. Siemens, [1994] B.C.J. No. 2546 (S.C.); Lloyd v. Fox (1991), 57 B.C.L.R. (2d) 332 (C.A.); and W.K. Enterprises Ltd. v. Stetar, [1976] B.C.J. No. 484 (S.C.).  In each of those cases the hazard created by the negligence of the driver who had stopped his vehicle was not apparent for either reasons of weather conditions or the design of the roadway until a point where the plaintiff’s vehicle was much closer than was the case here.

[16] Baker v. Cade, [1999] B.C.J. No. 239 (S.C.), has facts which are most analogous to the case at bar.  There, the collision involved two cars and a motorcycle.  The first car stopped in the middle of a bridge, and the car immediately behind that car came to a stop as well, without activating emergency flashers.  The plaintiffs were following behind on a motorcycle.  The stopped vehicles were approximately 800 feet away when the plaintiff crested the bridge and had a view of what was happening.  The plaintiffs were unable to stop the motorcycle and collided with the rear of the second vehicle, suffering significant injury.  The role of the driver of the second vehicle in that situation is analogous to that of the defendant in this case.  While Drost J. concluded that the driver of the second vehicle was negligent, he held that his negligence was not the proximate cause of the accident.  I reach the same conclusion here.

[17] The only distinguishing factor in this case is that the accident occurred at night.  However, I find as a fact that the area was well lit and the sight line of the plaintiff would have allowed him to the defendant’s stationary vehicle approximately a kilometre away.  Indeed, the plaintiff says he did see the defendant’s vehicle, but that he did not determine until it was too late that it was stopped.  Despite his description of the traffic, he took no evasive manoeuvres to avoid striking the rear of the defendant’s vehicle.  He believes he was some 20 to 30 yards away when he slammed on the brakes.

[18] Accordingly, the action is dismissed.

For more on this area of the law click here to read a case summary where a motorist was found partially at fault for being rear-ended.

BC Supreme Court Discusses Law of Left Hand Turn Intersection Crashes

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Whiplash Cases, Uncategorized.


Perhaps no type of accident has received more judicial attention than intersection collisions between left hand turning motorists and through drivers.  Reasons for judgement were released today by the BC Supreme Court discussing the law of fault when such a collision occurs on a green light.
In today’s case (Basi v. Buttar) the Plaintiff was involved in a January, 2007 car crash in Surrey, BC.  She was travelling through an intersection when the Defendant turned in front of her as she was just about to enter the intersection.  The Defendant said that the Plaintiff was at fault because she was speeding. Mr. Justice Brown found the Defendant 100% at fault for the collision and in doing so provided the following succinct summary and application of the law:

[24] Accidents such as this are a common occurrence. Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the Act] imposes duties both on the driver proceeding through the intersection (the “through driver”) and on the driver intending to turn left. The driver turning left must yield to the through driver where the through driver is in the intersection or constitutes an immediate hazard to the driver turning left. If the through driver does not constitute an immediate hazard, that is, if it is safe to turn left, then the through driver must yield the right of way to the driver turning left provided that the driver turning left has signalled his intention to turn left per s. 172 of the Act.

[25] The main question in this case is whether the plaintiff’s vehicle constituted an immediate hazard to Mr. Sarai when he started his turn, or whether the plaintiff’s car was far enough away from the intersection so that Mr. Sarai could safely turn left. If the former, the defendant should have yielded; if the latter, the plaintiff should have yielded. However, even if one of the parties has the right of way, that does not discharge them from a duty to exercise reasonable care in the circumstances.

[26] Mr. Sarai managed to clear the intersection in sufficient time to avoid a collision; however I accept the evidence of the plaintiff and Mr. Lavergne that the plaintiff’s car and Mr. Sarai’s van nearly collided. And while, as stated, I have some reservations about Mr. Laverne’s impartiality, I have no reason to conclude that he fabricated his evidence about how close the plaintiff was to the intersection when Mr. Sarai made his turn. I find that the plaintiff was too close to the intersection for Mr. Sarai to safely complete his turn and that he should have yielded to the plaintiff in accordance with s. 174 of the Act.

[27] While counsel for the defendant urged me to find that the plaintiff was driving too fast for the slippery road conditions, the fact remains that Mr. Sarai himself confirmed that the plaintiff was driving her vehicle in a controlled and safe fashion as she approached the intersection. Of course, he also testified, in effect, that she did not constitute an immediate hazard to him as she approached, so this evidence about the plaintiff’s safe driving is also somewhat consistent with his position that he could turn safely.

[28] The strongest argument in favour of the defendant comes from the fact that the plaintiff could not control her car and Mr. Lavergne’s evidence that Mr. Sarai made his turn slowly—had he moved more quickly, the plaintiff could have travelled straight through the intersection. This could suggest that the plaintiff may have been driving too fast or over-reacted.

[29] However, I am more persuaded by the evidence that Mr. Sarai started his turn when the plaintiff was too close to the intersection. She attempted to brake and turn to the left to avoid a collision with Mr. Sarai’s van. She lost control because of the slippery road conditions. I cannot conclude on the balance of probabilities that she drove too fast for the conditions. The only evidence of that comes from Mr. Buttar, who I find had limited opportunity to observe. I prefer the evidence of the plaintiff, Mr. Lavergne and Mr. Sarai in this regard. Therefore, I find the defendant Mr. Sarai 100% responsible for the accident for failing to yield to the plaintiff’s approaching vehicle, which constituted an immediate hazard as he commenced his left turn.

The Court went on to award the Plaintiff just over $42,000 in total damages for her injuries.  In assessing her non-pecuniary damages at $30,000 Mr. Justice Brown summarized her injuries and their effect on her life as follows:

[67] This is a moderate soft tissue injury with symptoms prolonged beyond the usual period expected possibly on account of the plaintiff’s clinical history of complaints in the same areas as noted before the accident. However, she was asymptomatic pre-accident, except for occasional headaches. She has steadily improved since the accident. She returned to her to job at the bank by March 19, 2007, a little over two months after the accident, and to the CRS not long after that. She has returned to full time work, with her work hours totalling over 60 hours per week. Recreational activities such as skiing and running have been negatively impacted, and her homemaking capacity has been diminished. She has made a near full recovery from her injuries, and the accepted medical evidence indicates the plaintiff will see a full recovery in the future, though she may suffer minor flare-ups…

[70] The cases cited by counsel encompass the appropriate range of damages for a case of this kind, but of course, each case involves its own factors, and therefore requires an individual assessment.

[71] Based on all the evidence before me, I award $30,000 to the plaintiff for non-pecuniary damages