Tag: ICBC claims

New Formal Settlement Offer Rule Treated the Same as the Old

Written by admin on September 30, 2010. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

A further decision dealing with the consequences of formal settlement offers under the New BC Supreme Court Civil Rules was released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Gregory v. ICBC) the Plaintiff was injured in a BC motor vehicle collision. Prior to trial ICBC made a formal settlement offer of $164,000. The Plaintiff rejected this offer and at trial was awarded just over $131,000.
ICBC brought an application seeking costs or double costs from the date of the offer onward. Madam Justice Kloegman agreed that the Plaintiff ought to have accepted the formal settlement offer and accordingly deprived her of her costs and disbursements for the trial and awarded ICBC their costs and disbursements for steps taken shortly after delivery of the formal settlement offer.
In reaching this result the Court noted that Rule 9 (the New Formal Settlement offer rule) should be treated similarly to the old Rule 37B. Specifically Madam Justice Kloegman noted that “The parties agree that it is likely that the new Supreme Court Rules apply to this application and, in any event, very little turns on whether or not the old or new Rules apply. ”
While ICBC was awarded post offer costs, they were not awarded double costs. In reaching this decision the Court noted that ICBC’s financial ability to defend a lawsuit was “much greater than the (plaintiff’s) ability to prosecute” and that this factor must be taken into account in exercising judicial discretion under Rule 9. In considering this factor Madam Justice Kloegman stated as follows “I will not order double costs to the defendant, which would be about $50,000, because the impact on the financial circumstances of the plaintiff and on the amount of her award at trial would be grievous. ”

ICBC Wage Loss Benefits – Definition of "Employed Person" Discussed

Written by admin on April 28, 2010. Posted in ICBC No-Fault (Part 7) Benefits, ICBC Wage Loss, Uncategorized. 59 Comments on ICBC Wage Loss Benefits – Definition of "Employed Person" Discussed

If a person insured with ICBC is disabled as a result of a motor vehicle collision they may qualify for disability benefits from ICBC under their own policy of insurance. These are often referred to as Part 7 TTD benefits or Part 7 Wage Loss Benefits.
One necessary condition for these benefits is that the injured person needs to be an “employed person“. If a person is not employed at the time of the accident they may still qualify for disability benefits from ICBC if they were ‘employed or actively engaged in an occupation for wages or profit for any 6 months during the period of 12 months immediately preceding the date of the accident.’ Reasons for judgement were released today discussing this definition of ‘employed person‘.
In today’s case (Pavlovich v. ICBC) the Plaintiff was injured in a rollover accident. The medical evidence was uncontradicted that his accident related injuries “temporarily totally disabled him from his regular employment as a journeyman carpenter (for about 6 months) from the date of the accident“.
The Plaintiff was not actively working at the time of the crash but had worked about 1,100 hours in the year before the accident. He argued that in these circumstances he is an ’employed person’ entitled to disability benefits from ICBC. ICBC refused to pay the wage loss benefit arguing the Plaintiff did not meet the definition of employed person under Part 7 of the Insurance (Vehicle) Regulation.
Mr. Justice Rogers was asked to resolve this dispute. The Court agreed with ICBC and in doing so made the following useful comments about the definition of ‘employed person‘ for the purpose of receiving ICBC Part 7 disability benefits:

[8] For the purpose of entitlement to temporary total disability benefits under Part 7 of the Insurance (Vehicle) Regulation of the Insurance (Vehicle) Act, the claimant must be an “employed person”. An “employed person” is defined by s. 78 of the Regulation and means a person:

(a) who, on the date of an accident for which a claim is made, is employed or actively engaged in an occupation for wages or profit, or

(b) who…

(ii) for any 6 months during the period of 12 months immediately preceding the date of an accident for which a claim is made is employed or actively engaged in an occupation for wages or profit.

[9] As noted, the parties agreed that the plaintiff was not employed on the date of the accident. Accordingly, if the plaintiff is to qualify for temporary total disability benefits, it must be on the basis of his being an “employed person” within the meaning of subsection (b) of the definition….

[17] The plaintiff’s interpretation of the Regulation suffers several flaws. One such is the fact that in practice it would result in absurdities of its own. For example, if the plaintiff has it right that under subsection (b) “employed person” status may be achieved by working more than 1,000 hours in the 12 months preceding an injury, one person might accumulate all the necessary hours by working intensely for only 2 or 3 months, while another person might never qualify because of his part?time employment and work for only a few hours every week. The part?timer might work for, say, 11.9 months immediately before his injury and be laid off the day before his accident; yet, because of his part?time status, he may not have accumulated the 1,000 hours the plaintiff’s interpretation would require of him before he could be an “employed person” under subsection (b). This would lead to the absurd result of a part?time person working up to the day before an accident not being employed for the purposes of the Regulation, while a person who worked like the devil over only 2 months would qualify for benefits. This result would be directly contrary to the plain meaning of the words of the Regulation.

[18] Another flaw in the plaintiff’s interpretation is its reliance on counting hours to qualify as an employed person. This might theoretically work if everyone toiled, as the plaintiff did, for an hourly wage. That is not, however, the way things are. Some people are paid by the task, as in a seamstress’s piece?work, some are paid a salary and no account is kept of the hours they work, some are paid on pure commission and the hours they work may bear no relation at all to their income and so the number of hours they work are irrelevant. Counting hours of work is simply not a practical way to fashion the broad?based and universal test for qualification for disability benefits under the Regulation.

[19] A much more sensible and practical interpretation, and the interpretation that is consistent with the Regulation’s plain language, is the interpretation that the defendant propounds. The Regulation stipulates that to be an employed person the claimant must have been employed for 6 of the 12 months immediately preceding the injury. It is the being employed, not the amount of work done, during those 6 months that counts. Put another way, a person who works part?time for 6 months is, for the purposes of the Regulation, no less employed that the person who works 18 hours a day for the same period.

[20] I find that whether one excludes or includes the plaintiff’s house renovation work, the arithmetic of the plaintiff’s situation does not yield enough weeks of work for him to be said to have been employed for 6 of the 12 months before the accident.

Pain and Suffering Awards for Year Long Soft Tissue Injuries Discussed

Written by admin on April 27, 2010. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for 2 plaintiffs who suffered soft tissue injuries in a 2006 BC car crash. I summarize the Court’s key findings in my continued effort to grow this public data base of damage awards in BC injury claims
In today’s case (Morrison v. Peng) the Plaintiffs (husband and wife) were rear-ended by a vehicle driven by the Defendant. Fault was admitted leaving the Court to value the Plaintiffs’ injury claims. Both suffered soft tissue injuries which lasted approximately one year. In assessing the Plaintiffs non-pecuniary damages at $9,000 and $18,000 respectively Mr. Justice Masuhara summarized the injuries as follows:
[23] Having considered the evidence, I am of the view that Mr. Morrison suffered soft tissue injuries to his neck and back which can be characterized as mild, and that his symptoms resolved within a year. Given my assessment of Mr. Morrison and the facts, my view is that he was able to do more than what he stated…
[26] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $9,000.
________________________________________________________________________
[42] Ms. Jabs’ condition is somewhat complicated by the several conditions that she has identified in the report. Based on the foregoing medical opinion, I find that that she suffered soft tissue injuries to her neck, upper and lower back and that the symptoms she experienced resulting from the accident had a duration somewhat beyond one year of the accident. Her chiropractic and massage treatments end at this point for about one year. I would characterize her injuries as mild to moderate in severity. ..
[46] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $18,000.
Feel free to visit the soft-tissue injury archives of this site to review other BC cases addressing non-pecuniary damages for soft tissue injuries.

The "Crumbling Skull" Doctrine: BC Injury Claims and Pre-Existing Degenerative Conditions

Written by admin on April 10, 2010. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 55 Comments on The "Crumbling Skull" Doctrine: BC Injury Claims and Pre-Existing Degenerative Conditions

When a Plaintiff suffers injuries by the fault of another but the evidence establishes that the person would have likely suffered the same symptoms of pain because of a pre-existing condition the Plaintiff’s award of damages can be reduced to reflect this reality. This principle of personal injury law is known as the “crumbling skull” doctrine. Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, dealing with this area of law.
In this week’s case (Booth v. Gartner) the Plaintiff was injured in a 2007 BC car crash. The Defendant struck the Plaintiff’s vehicle when he entered an intersection against a red light. ICBC admitted fault on behalf of the Defendant but disputed the extent of the accident related injuries.
At trial Mr. Justice Cole found that the accident caused a variety of injuries. One of the most significant was low back pain which continued to the time of trial. The Plaintiff did not have back pain before the car crash however she had severe pre-existing (although asymptomatic) facet arthritis in her low back. The accident caused this condition to become painful. The Court was persuaded that this condition had a likelihood of developing pain in the future even without the accident. As a result of this finding the Court reduced the Plaintiff’s non-pecuniary damages by 25%. In reaching this result Mr. Justice Cole reasoned as follows:
[23] I accept Dr. Vallentyne’s opinion that the degeneration in her lower back is severe at two levels and it is likely she would have been troubled by lower back pain and stiffness at some time in the future, absent Accident #2. However, I am also satisfied that although the degeneration is pre-existing, there was symptomatic acceleration of the facet arthritis as a result of Accident #2…

[26] The CT scan of September 20, 2008, according to Dr. Vallentyne, “showed severe bilateral degeneration of the facet joints at the L4-5-S1 levels in addition to a minor 3 mm L4-5 degenerative anterolisthesis”.

[27] According to Dr. Vallentyne, degenerative changes take years to develop and he found it was probable that the plaintiff had degenerative changes of her lower lumbar facet joints prior to the 2007 motor vehicle accident. He concluded that “[g]iven that the degeneration is severe at two levels, it is likely that Ms. Booth would have been troubled by low back pain and stiffness at sometime in the future absent the 2007 MVA.”

[28] I am satisfied that there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, and I must take that into account in reducing the overall award.

[29] The principle to be applied is found in Zaruk v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43 [Zaruk]. There the plaintiff had suffered a soft-tissue injury but some of her symptoms by the time of trial were consistent with degenerative changes. The Court was not satisfied that the general condition would have become symptomatic between the date of the accident and the date of trial, but concluded at para. 40, that there was a measurable risk that it would have become symptomatic in the future:

[40] However, application of the crumbling skull doctrine may not result in the same reduction for past losses as future losses. Past losses must be assessed on the basis of a balance of probabilities. “Once the burden of proof is met, causation must be accepted as a certainty,” [Athey v. Leonati, [1996] 3 S.C.R. 458] ¶ 30). But for the assessment of future losses, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation,” (Athey ¶ 27)

[30] The Court then reduced non-pecuniary damages by 15% and future care damages by 20%.

[31] Because the plaintiff’s degenerative condition was described by Dr. Vallentyne as “severe bilateral degeneration”, I am of the view that a large deduction is appropriate in this case and I find an appropriate deduction for non-pecuniary damages is 25% and for future care damages, 30%.

As I previously wrote, a great discussion of this area of the law was also provided in a recent case (Gohringer v. Hernandez-Lazo) where Madam Justice Russell summarized the law as follows:

[92] In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active. The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”: Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position. As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35. The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52. If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35.

[93] In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff. An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured. The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96. Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32. If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94] I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages: A. (T.W.N.) at paras. 36-37; Barnes at para. 90.

Proving Your BC Injury Claim: A "Balance of Probabilities"

Written by admin on April 6, 2010. Posted in Civil Procedure, Uncategorized. 60 Comments on Proving Your BC Injury Claim: A "Balance of Probabilities"

When you sue someone in British Columbia for causing injuries (either negligently or intentionally) you need to prove your case. If you fail to do so your case can be dismissed and you may end up paying the other party’s Court costs.
What is the test that needs to be met when proving your injuries? Unlike criminal trials which require proof of a crime ‘beyond a reasonable doubt‘, civil lawsuits have a much lower burden of proof. A Plaintiff in an injury lawsuit need only prove their claim on a ‘balance of probabilities‘ which means more likely than not. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the civil burden of proof in an ICBC claim.
In today’s case (Costello v. Rafique) the Plaintiff was involved in a ‘relatively minor rear-end collision‘ in 2006. He sued for damages. The Plaintiff claimed the accident caused a back injury which continued to cause problems up until the time of trial. The Defendant disagreed arguing the car crash was not the cause of the Plaintiff’s ongoing pain problems rather these were attributable to a previous back condition (the Plaintiff in fact underwent a decompressive laminectomy shortly before the collision).
Mr. Justice Melnick found that while the Plaintiff did indeed continue to suffer from back pain, and that the ongoing symptoms “may well be…the result of soft tissue injuries resulting from the accident” possibility is not enough to prove a case on the civil standard. In dismissing the Plaintiff’s allegation of causation of ongoing injuries due to the collision the Court stated as follows with respect to the Civil Burden of Proof:

[16] It may well be that Mr. Costello’s continuing back pain is the result of soft tissue injuries resulting from the accident. However, on the balance of probabilities, Mr. Costello has failed to persuade me that this is the case…

[17] Dr. Reebye’s carefully worded report really says it all: “[t]he soft tissue injuries were responsible for his symptoms and limitation soon after the accident” [emphasis added] and, “[t]he injuries sustained were not severe enough to aggravate his pre-existing conditions.” I note that it is possible that Dr. Reebye is wrong. It could be that the whiplash from the accident did affect Mr. Costello’s spine in a way that affected the area of the surgery. But without a full and proper medical investigation with the aid of diagnostic imaging, I have no way of knowing that. The body of evidence that has been put before me on behalf of Mr. Costello, who bears the burden of proving his case on the balance of probabilities, just does not do that. The evidence neither convinces me that the soft tissue injuries from this minor rear-end collision have independently resulted in the debilitating pain and discomfort I have no doubt he now suffers, or that those injuries in some way affected the area of his spine which was the subject of the 2006 surgery or in some way caused his pre-existing condition to re-assert itself.

[18] I am convinced on a balance of probabilities that Mr. Costello did, indeed, suffer soft tissue injuries in the motor vehicle accident which caused him pain and discomfort for a period of time that cannot be quantified precisely but, before the time of trial, would have been resolved. Dr. Reebye’s suggestion in cross-examination that Mr. Costello could experience effects of the accident for five to ten years is implausible and at odds with his report. As noted above, I have no doubt that Mr. Costello is suffering back pain but I am not satisfied, to the standard required on a civil trial, that his current problems result from the injuries sustained in the motor vehicle accident. ..

ICBC Injury Claims: Provincial Court vs. BC Supreme Court

Written by admin on March 17, 2010. Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in. Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?
Both courts have notable differences. Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction. The maximum award for damages that can currently be made in the Provincial Court is $25,000. The Supreme Court has an unlimited monetary jurisdiction.
For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court. But what about more modest claims, claims that may fall in the $20,000 – $30,000 range? Where should these be filed?
While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers. Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court. There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.
While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now. Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.
In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC. This was a Low Velocity Impact. ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.
The Plaintiff’s lawyer sought a significantly higher award. Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500. In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court. Specifically Judge Kay stated as follows:
This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically. This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court. In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life. While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.

Late Applications for Defence Medical Exams in ICBC Injury Claims

Written by admin on February 13, 2010. Posted in independent medical exams, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.
Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence. This requirement is set out in Rule 40A. (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).
When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle. Reasons for judgement were released today demonstrating this.
In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions. Both trials were set to be heard together. ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘. This application was brought late in the litigation process. ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.
The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process. Master Keighley agreed with the Plaintiff and dismissed the motion. In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument. Specifically the Court stated as follows:

[10] This application raises certain practical difficulties. One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date. There is certainly very little time left now between the date of this application and the trial. It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker. It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date. There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial. She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date. There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker. She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd. Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed. It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.

Duties of Motorists Involved in Single Vehicle Accidents Discussed

Written by admin on February 8, 2010. Posted in Uncategorized. 114 Comments on Duties of Motorists Involved in Single Vehicle Accidents Discussed

Reasons for judgement were released today by the BC Supreme Court discussing whether a motorist has to stay at the scene of a single vehicle accident in British Columbia.
In today’s case (ICBC v. Pariah Productions Inc.) the Defendant vehicle was involved in a single vehicle collision when its driver struck the wall of a Wendy’s restaurant. The motorist drove home after the collision without notifying anyone of what happened.
ICBC paid out the property damage claim and then sued the Defendant for their money back claiming that the motorist was in breach of an obligation to remain at the scene of the accident. The trial judge disagreed and dismissed ICBC’s claim. ICBC appealed and today’s case dealt with this.
Section 68(1)(a) of the BC Motor Vehicle Act in part requires “the driver or operator or any other person in charge of a vehicle that is, directly or indirectly, involved in an accident on a highway to remain at or immediately return to the scene of the accident“.
ICBC argued that the Defendant was in breach of this obligation. The trial judge disagreed. On Appeal, Mr. Justice Silverman found that “the trial judge did correctly decided this issue…I endorse the correctness of his analysis in paragraphs 16-19 of this Reasons for Judgement.”
The Trial Judge’s reasons which were upheld were as follows:

[16] It is to be questioned whether or not s. 68(1) and then 68(3) are sections that deal with the same type of accident or whether they are distinctly two different types of accidents. Section 68(3) provides the duty of a driver in an accident is as follows:…

[17] It is my view that 68(1) and 68(3) of the Motor Vehicle Act involve two different situations: … Sixty-eight (1) involves the situation where there is a car accident involving another vehicle and there is injury or loss to another person, be it the other driver or someone else. Section 68(3) however, involves a situation where there is only a single-vehicle accident, no persons are injured but there is damage to property only. So, the two sections are quite distinct from one another and the obligations on the driver involved in a 68(1) situation or a 68(3) situation are quite different.

[18] For 68(1) of the Motor Vehicle Act to apply in this case,it is my view that there had to be a situation where not onlywas there damage to or loss or injury to some other person, but there also had to be another driver involved. The reason I say that is that 68(1)(c) says that the driver involved in the accident must: produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request [to a peace officer or] to a witness … the information. In my view, that section presupposes that he, the driver, has obeyed his obligation to remain at or immediately return to the scene of the accident. So 68(1), in my view, involves twocars and a situation additionally of someone sustaining lossor injury, be it that other driver or some third party,

whereas s. 68(3) in my view, only applies to a situation where

one driver is involved and he/she has caused damages to property on or adjacent to the highway, other than another vehicle. He then must take reasonable steps to locate and notify in writing the owner or person in charge of the property and send them the facts of the accident and provide other details.

[19] In s. 68(1), there is a mandatory requirement that the driver involved in the accident remain at the scene or immediately return to the scene and he must produce in writing to the other driver and anyone sustaining loss, various pieces of information, whereas under s. 68(3), there is no provision that he must remain or that he must immediately return to the accident. Rather, it says that he must take reasonable steps to locate and notify in writing the owner or person in charge, of the fact that an accident has taken place. The fact that he is required under 68(3) to take reasonable steps to locate and notify in writing the owner or person in charge of the property, in my mind, means that it is not something that he is required necessarily to do “immediately”, whereas under 68(1), when he has an accident with another car and the other driver or the other driver’s property or even somebody else’s property, is damaged or lost, in that two-car accident, he has to stay there and “immediately” give the information.

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

Written by admin on January 19, 2010. 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.