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Tag: inevitable accident

Affidavits and Exhibits: Take Care To Review the Whole of the Evidence

Written by admin on . Posted in BCSC Civil Rule 22, BCSC Civil Rule 9, ICBC Liability (fault) Cases, Uncategorized.


Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.
The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.
The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.

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

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 108 Comments on "It was the Deer's Fault" Defence Rejected in BC Injury Claim


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

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

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

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

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

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

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

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

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

Repost: Ice, Snow and Your ICBC Injury Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 113 Comments on Repost: Ice, Snow and Your ICBC Injury Claim


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

$135,000 Non-Pecuniary Damages Awarded for Torn Pectoralis Major Muscle

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized. 49 Comments on $135,000 Non-Pecuniary Damages Awarded for Torn Pectoralis Major Muscle

(UPDATE: May 9, 2012 … The Trial Judge’s findings regarding liability were appealed.  The Appeal was dismissed today.)

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding just over $450,000 in damages for injuries and losses arising out of a 2006 BC Motor Vehicle Collision.
In today’s case (Power v. White) the Plaintiff was involved in a 2 vehicle collision.  As the Plaintiff was driving down the Island Highway a deer ran into his lane of travel threatening collision.  The Plaintiff reacted suddenly by changing into the right lane and braking as hard as he could.  Unfortunately this was not sufficient and the Plaintiff’s vehicle struck the deer.  Shortly afterwards the Defendant, who was travelling in the right lane, collided with the rear of the Plaintiff’s vehicle.  Fault was at issue however the Mr. Justice Verhoeven found that the Plaintiff reacted reasonably to the threatened collision and that the Defendant was 100% at fault for failing to drive with all due care and attention.
The Plaintiff suffered various injuries the most serious of which was a tear to his pectoralis major muscle.  This injury did not fully heal and was expected to effect the Plaintiff well into the future.  The Plaintiff’s family doctor provided the following evidence with respect to the severity of this injury:

In review, Mr. Power sustained injuries to his right pectoralis major (partial tear) to the right T-6 area as well as some transient injuries to the soft tissues in his right shoulder and base of neck and right buttock area. These complaints started after his accident and have been persistent and continuous since that time. Institution of physiotherapy, chiropractic and exercised based therapy have been useful in increasing some of his functional capacity since the accident, but have plateaued in that the pain from either his right pectoralis area or the T-6 area have limited any further advancement of intensity or duration of his exercise. These injuries have significantly limited his recreational activities, particularly swimming, biking and running as well as his ability to care for his house and yard, particularly the use of his power saw, shovels and mowing his lawn. At work he generally does not have a lot of limitation as he is able to get up from his seat when he needs to but does have limited sitting capacity as has previously been outlined. He does and would have some problems turning some of the heavy valves and climbing the ladders if there is a breakdown at the mill, however he does have a partner and this has generally worked out that the partner has done this.

Mr. Power has sustained significant injuries from the accident. His functional limitations have been outlined in detail. They are significant for his recreational and household and yard activities. At this time I do not see a significant future recovery for these and at the moment I am unable to find a surgeon who would consider repairing this injury, although I will persist in searching the literature for a possible solution for this problem. Mr. Power has shown he is determined to remain active, having returned to work promptly after his accident, followed all of my instructions as well as his therapist’s instructions to the letter and done a persistent and significant job in increasing his activities to what is now his limit due to pain in the aforementioned areas and I do not see his disabilities resolving in the near future.

Mr. Justice Verhoeven awarded the Plaintiff $135,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court provided the following reasons:

[82]         In this case, Mr. Power has suffered a very significant and permanent loss to the lifestyle he previously enjoyed. Virtually all of his previous physical activities have been severely curtailed. Prior to the accident Mr. Powers physical vigour was central to his life and lifestyle. His mood and emotional well being have been negatively affected. His relationship with his wife has been harmed. His ability to improve and maintain his property, quite obviously a source of great pleasure and pride to him formerly, is all but completely gone. He has not and will not in future be as physically fit as he previously was. It is reasonable to infer that this may affect his health long term. I think it likely that Mr. and Mrs. Power will sell their five acre property and move into a residence that does not require so much effort to maintain…

[84]         In all these circumstances, I assess the plaintiff’s non-pecuniary loss at $135,000.

Why a Driver Isn't Always at Fault For Losing Control

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 107 Comments on Why a Driver Isn't Always at Fault For Losing Control

If a driver loses control of their vehicle resulting in a collision causing you injury they will always be found negligent in a personal injury lawsuit, right?  Not necessarily.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Geiger v. Schmidt) the Plaintiff sued for compensation as a result of injuries she sustained in two BC motor vehicle collisions.  In the first crash the Plaintiff was a passenger in her own vehicle.    The vehicle was travelling on Highway 99 just South of Vancouver.  The posted speed limit was 100 kmph.  The road conditions were poor due to winter weather.  The driver slowed to 70 kmph to take this into account.  The Plaintiff asked the driver to slow further and put the vehicle into four-wheel drive.  Before the driver did so the “back end of the vehicle slid.  It spun 360 degrees, collided with the median, bounced off it, went into another spin and then struck it a second time“.
The Plaintiff was injured in this crash and sued for damages.  The driver argued that he was not at fault and did nothing careless.  Mr. Justice Brown agreed and dismissed the lawsuit.  In doing so he provided the following analysis:

[44]         In my view, given the fact the defendant was attuned to the conditions he was facing and had responded to them by lowering his speed by almost one-third, the negligence question in this case comes down to deciding whether he failed to exercise all reasonable care because he failed to comply with the plaintiff’s suggestion by lowering his speed and transferring the driveline to four wheel drive before he lost control. In other words, did exercising all reasonable precautions encompass disregarding his own assessment and complying with the plaintiff’s suggestion?

[45]         In some circumstances, reasonable drivers assessing driving conditions would consider the suggestions of passengers, especially when the driver is inexperienced or less familiar with the road then the passenger. In many cases, the passenger’s recommendation will correspond with the most objectively reasonable precaution.

[46]         However, the driver is ultimately responsible for assessing the objective conditions and responding in a reasonable way. In the circumstances of this case, I find the defendant’s failure to follow the plaintiff’s suggestion to slow down and transfer to four-wheel drive is not sufficient to satisfy the plaintiff’s burden of establishing the defendant was negligent.

[47]         Further, I heard no evidence of what speed would be low enough in the conditions the defendant was facing to prevent a loss of control and the spin outs that followed. There was no evidence to show that, had the defendant switched into four-wheel drive or reduced his speed, he could have avoided the accident. A judge can take judicial notice of the natural correlation between higher speed and decreased traction; but such common knowledge does not licence a leap from that to a conclusion the defendant likely would have avoided the accident if the plaintiff had agreed with the plaintiff and lowered his speed.

[48]         This is not a case of a driver ignoring passenger pleas to slow down while driving at a speed all reasonably cautious drivers would consider unsafe in the circumstances.

[49]         The standard of care is not perfection. There is no evidence the defendant was inattentive or indifferent to road conditions. His decision to delay transferring to four wheel drive until he felt ready doing so was not unreasonable. The vehicle was equipped with snow tires. The temperature was around 4 degrees centigrade. The defendant was exercising reasonable caution by driving a full 30 kph below the posted speed limit.

[50]         As in Nason, I find insufficient evidence to show the defendant in these circumstances was negligent: at best, the weight of the evidence hangs evenly in the balance. I find the plaintiff has failed to satisfy the burden of proof and so I must dismiss the plaintiff’s claim against the defendant.

Prior to dismissing the lawsuit Mr. Justice Brown canvassed several recent authorities which address fault in collisions where a driver loses control and the case is worth reviewing in full for anyone interested in this area of law.  You can also click here to read my archived posts addressing fault for BC crashes where a driver loses control due to road conditions or other hazards.

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.

BC Injury Claims for Passengers Injured in Single Vehicle Collisions – When Your Driver is At Fault

Written by admin on . Posted in BC Injury Claims Media Archives, ICBC Liability (fault) Cases.

Here is video I recently uploaded to YouTube discussing injury claims (tort claims) brought by passengers when the driver of their vehicle is at fault for a single vehicle collision in British Columbia.
I have previously written about this topic and you can click here to read my archived posts discussing single vehicle collisions and the inevitable accident defence.
I hope this information is of assistance.

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

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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.

BC Court of Appeal Discusses Rear End Crashes and Permitted Inferences of Negligence

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

Usually when a driver rear-ends another vehicle that driver is at fault.  However, this is not always the case and reasons for judgement were released today by the BC Court of Appeal addressing this area of law.
In today’s case (Singleton v. Morris) the Plaintiff was involved in a rear end collison in 2005.  She sued the owner and driver of the vehicle that rear-ended her claiming negligence.  The driver of the rear vehicle gave evidence that the collision happened not due to carelessness, but as a result of an unexpected slippery substance on the road (perhaps brake fluid) and this caused her to lose control and collide with the Plaintiff vehicle.  This evidence was accepted and the Plaintiff’s claim was dismissed by the trial court.
The Plaintiff appealed the finding arguing that the trial judge was wrong.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court discussed the permitted inferences of negligence in rear end crashes cases and the burden of proof.  The highlights of the Courts discussion were as follows:

[32] The burden of proof in cases of negligence is set out in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424. There, Mr. Justice Major stated that the maxim of res ipsa loquitur should be treated as expired. He said:

27        It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.  After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.  [Emphasis added.]

[33] Mr. Justice Major’s statement sets out the general approach in negligence cases.  That is, the trier of fact should weigh both the circumstantial evidence and the direct evidence, where available, in determining whether the plaintiff has established a prima facie case of negligence.  In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case.  Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.

[34] Importantly, as stated by this court in Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318 at para. 10:

… The legal burden of proof, of course, remains on the plaintiff throughout.

[35] Here, because the plaintiff failed to establish that the defendant was driving at an excessive speed, there was no direct evidence of negligence on the part of the defendant.  Therefore, the plaintiff was forced to rely on circumstantial evidence and sought to establish an inference of negligence because the accident was a rear-end collision.

[36] Madam Justice Newbury examined the drawing of such inferences and the rebutting of them through the defence of explanation in Nason v. Nunes, 2008 BCCA 203.  InNason, a car had gone off the road. Newbury J.A. said:

[14]   … 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 … such an inference will be “highly dependent 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.”  [Emphasis in original.]

[37] In Fontaine, Mr. Justice Major applied the law relating to such inferences and the defence of explanation to the facts of the case before him, stating:

33        If an inference of negligence might be drawn in these circumstances, it would be modest.  The trial judge found that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on Loewen’s part.  Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[38] Thus, in cases such as this, the trial judge may – but is not required to – draw an inference of negligence from the fact there was a rear-end collision.  The defence, however, may attempt to rebut such inferences through the defence of explanation.  A defence of explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.) is an explanation of how an accident may have occurred without the defendant’s negligence.  The defendant does not bear the onus of proving how the accident did happen.  The trial judge drew an inference of negligence in this case.  She said, “In this case, given that this was a rear-end collision in which the truck was properly stopped and was there to be seen, there is a prima facie case of negligence.”  Further, the trial judge correctly noted that Mrs. Morris “has to advance an explanation as to how the collision may have occurred without negligence on her part.”

[39] Here, the inference of negligence was, as the trial judge correctly held, adequately explained.  The plaintiff had failed to establish that Mrs. Morris was driving at an excessive speed or braked too late.  The trial judge accepted the defendant’s explanation of the presence of the oily substance on the road.  The explanation was “adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.”  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[40] I would dismiss the appeal.