Tag: Henry v. Bennett

"Short Fuse" Formal Settlement Offer Triggers Double Costs

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether a formal settlement offer open for only 3 days could trigger costs consequences.
In today’s case (Henry v. Bennett) the Plaintiff was involved in a 2008 collision and sued for damages.  The claim was ultimately dismissed with the Plaintiff being at fault for the crash.  Prior to the trial the Defendant provided a formal offer of $30,000 which was only open for acceptance for three days.
The Plaintiff argued that the offer should not attract double costs in part due to its short window.  Madam Justice Ballance disagreed finding given the significant liability risks at trial it was a reasonable offer.  In addressing its short lifespan not being a barrier the Court provided the following reasons:

[41]         I would ordinarily regard a three-day fuse attached to an offer that was delivered close to the eve of trial, where it would be expected that the party would be engrossed in the demands of trial preparation, as posing an unreasonable time constraint within which to give it meaningful evaluation.  The difficulty facing Mr. Henry, however, is that due mainly to his own damaging discovery evidence, he ought reasonably to have anticipated that he faced significant exposure of not only faring poorly on the issue of liability, but losing his case altogether.  Knowing, as he did, his harmful evidence, Mr. Henry should have appreciated the deep weakness of his claim and the risk of significant apportionment against him or the outright dismissal of his suit and his exposure for an adverse costs award.  All things considered, the 2011 Offer was one that ought reasonably to have been accepted by Mr. Henry.

[42]         With respect to other the pertinent factors, in dismissing Mr. Henry’s case, the Court placed heavy emphasis on his discovery evidence concerning liability for the accident.  Relatively little is known about Mr. Henry’s specific financial circumstances.  Based on the evidence at trial, it is reasonable to infer that his financial situation is modest.  However, that, of itself or in combination with any other factor, is not reason enough in this case to refuse the defendant an award of double costs.

[43]         The defendant is entitled to costs of this proceeding at Scale B up to and including March 8, 2011, and double costs thereafter.

Left Hand Turning Vehicle Found Faultess for Intersection Crash

Motorists are entitled to commit to an intersection and wait until its safe to proceed prior to making a left hand turn.  If the light turns red prior to a safe moment arriving it is appropriate for a motorist to wait that long prior to completing their turn.  In such circumstances a turning motorist can be found fully faultless if a collision occurs which was demonstrated in reasons for judgement released last month by the BC Supreme Court, Vancouver Registry.
In last month’s case (Henry v. Bennett) the Defendant was driving NorthBound on King George intending to make a left hand turn on 68th Avenue.  At the same time the Plaintiff was travelling Southbound on King George intending to drive through the intersection.

The Court found that the Defendant entered the intersection on a green light.  She waited for a gap in traffic.  The light eventually turned amber and then red.   Southbound traffic visible to the Plaintiff stopped.  She began her turn when the Plaintiff came through the intersection and the collision occurred.  The Plaintiff sued for damages but the claim was dismissed with the Court finding him fully at fault for entering the intersection on a red light when it was unsafe to do so.  In finding the Defendant faultless Madam Justice Ballance provided the following reasons:






[72] Ms. Bennett was in a position remarkably similar to that of the plaintiff in Kokkinis. Although she did not see Mr. Henry prior to the collision, Kokkinis indicates that it does not necessarily follow that she was in any way negligent. Having said that, I wish to clarify that I do not read Kokkinis as standing for the proposition that left-turning drivers are entitled to proceed blindly on the assumption that oncoming drivers will obey the rules of the road, without regard to their concurrent obligation to act reasonably as the circumstances dictate. In my view, Ms. Bennett was entitled to proceed on the assumption that oncoming traffic, including Mr. Henry, would act in accordance with the law and come to a stop on the late amber, absent any reasonable indication to the contrary and provided she comported herself with reasonable care. Here, there was no contrary indication from Ms. Bennett’s standpoint. Indeed, she could see that the SUV across from her had complied with the rules and she was aware as well that the flow of straight through traffic had ceased some seconds earlier. She had no reasonable indication that oncoming traffic in the form of Mr. Henry would proceed through the intersection in clear violation of the rules of the road. Moreover, I find that in all the circumstances she conducted herself prudently and with reasonable care in negotiating her left turn. In contrast, Mr. Henry knew or reasonably ought to have known that in all likelihood Ms. Bennett would have carried through with her left turn at the final stage of the amber light, and most assuredly when the signal turned red. He created an extremely unsafe situation in failing to come to a stop.

[73] I endorse the case authorities that cast doubt over the legitimacy of portraying a driver in Mr. Henry’s shoes as having the presumptive right-of-way or otherwise qualifying as the dominant driver for the purposes of assessing liability using the Walker paradigm: see, for example, Snow v. Toth, [1994] B.C.J. No. 563 (S.C.); Shahidi v. Oppersma, [1998] B.C.J. No. 2017 (S.C.); Ziani v. Thede, 2011 BCSC 895. The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully and, it seems to me, is of utility in that circumstance only. I, therefore, question whether that framework is of any assistance to a driver like Mr. Henry, who has acted in breach of his statutory duty. In any case, it cannot be said that Ms. Bennett attempted to execute her turn in complete disregard of her statutory duty to yield, which is an integral component of the Walker analysis. Indeed, it is my view that Ms. Bennett can be validly characterized as the dominant driver in the circumstances. There is no cogent evidence to remotely suggest that she could have avoided Mr. Henry by the exercise of reasonable care. To formulate it in the terms of s. 174, Ms. Bennett posed an immediate hazard to Mr. Henry, which he should have appreciated, and it is he who ought to have yielded the right-of-way.

[74] Based on the foregoing, I am satisfied that the accident was caused solely by the negligent driving of Mr. Henry. As he is entirely at fault for the accident, his claim is dismissed.







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ERIK
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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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