Tag: intersection crash

A Busy Day – 3 Car Crash Cases Released by BC Supreme Court

There is a lot to blog about today so I will have to keep these case summaries short.  The BC Supreme Court released 3 cases today that may be of interest to people advancing ICBC claims.
The first deals with the choice of forum of where to sue.  The Plaintiff was in a collision with a tractor trailer in 2007.  The crash happened in Alberta.  The Plaintiff lived in BC and the owner of the tractor trailer had a registered business office in BC.  The Plaintiff started the lawsuit in BC and the Defendant brought a motion that the case should be dismissed or stayed because the lawsuit should have been started in Alberta.
After summarizing the applicable law the court sided largely with the Defendants finding that:

[27] The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.

[28] I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.

[29] I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.

[30] In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.

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The second case released today dealt with Court Costs.  Typically when a case succeeds in Supreme Court the winner is entitled to court ‘costs’.  In theory this is to compensate the winner for having to trigger the judicial process to get whats fair.
After an 11 day trial as a result of a car accident the Plaintiff was awarded $81,694 in damages for injuries and loss.  In the trial the Plaintiff’s claim for past wage loss and cost of future care were dismissed.
The Defendant brought a motion asking the court to award the defendant ‘costs and disbursements for that portion of the proceedings ralted to the cloaims fr past income loss and cost of future care’ amongst other relief.  The motion was brought further to Rules 57(9) which states

Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

And rule 57(15) which states

The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.

The court granted the motion stating that:

Analysis and Decision

[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated.  I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial.  I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.

[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful.  I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss.  In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity.  I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial.  In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.

Conclusion

[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson.  In addition, the defendant is awarded his costs and disbursements for two days of trial.

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The third case of interest released today dealt with a car accident from 2003 which allegedly caused severe psychological injuries.
The crash occurred at an intersection in Surrey.  The Plaintiff was turning left on a green light.  The defendant entered the intersection approaching from the Plaintiff’s left.  The Defendant had a red light.  The accident then occurred.  The Defendant was found 90% at fault and the Plaintiff was found 10% at fault for failing the see the defendant’s vehicle which was ‘there to be seen’
The most contentious alleged injuries were brain injury and Dissociative Identity Disorder (DID).  The plaintiff did seem to suffer from DID, the question was whether the car crash caused this.
The court made the following findings with respect to injuries:

[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness.  The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life.  At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future.  In the aftermath of the accident, her life has been devastated.  She can no longer look after herself or her children.  She lives in an assisted living facility.  She is separated from her husband. Her future prospects are grim.

[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident.  The accident clearly terrified her.  Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do.  She was told that she had suffered a serious brain injury.  This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral.  Her tinnitus and dizziness are likely permanent.  The prognoses for her TMJ problems are guarded.  There is some optimism that her pain disorder will improve given her recent change in medication.  Similarly, over time her depression should respond to treatment.  Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission.  Absent her DID, the plaintiff would now be on the road to recovery.  DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.

$150,000 was awarded for non-pecuniary damages (pain and suffering and loss of enjoyment of life)

More on Intersection Crashes, ICBC, and Fault

In another example of our courts dealing with the issue of fault and intersection crashes, reasons for judgment were released last week faulting a ‘through driver’ 100% for a crash involving a left hand turner in Langley, BC.
I have previously blogged about this and will blog more on this topic in the future. The issue of fault is probably the most litigated when it comes to intersection crashes involving left hand turning vehicles.
In this case the Plaintiff was attempting to turn left. The Defendant, approaching in the opposite direction, was attempting to go through the intersection. The light was amber or red. This is a common recipe for disaster and indeed they crashed with each other. As is often the case in ICBC claims involving intersection crashes the 2 sides had different versions of evidence, particularly as to whether the light was red or amber at the time.
The court found that the light was red at the time of the crash. While both vehicles where, therefore, in the intersection on a red light, only the ‘through driver’ was found at fault because the Plaintiff was clearing the intersection.
The court quoted a case that is well known to ICBC claims lawyers which is helpful to left hand turning motorists in such a situation. The cases is Kokkinis v. Hall from the BC Court of Appeal where the court held that:

9 This discussion, however, detracts from the more important question of law, which is whether Mrs. Kokkinis was on one hand entitled reasonably to assume that Mr. Hall would stop before entering the intersection or on the other hand, whether she can be faulted for failing to see his van “until it was on top of her”, i.e. constituted an immediate hazard. In this regard, Mr. Johnson cites Feng v. Graham [1988] 5 W.W.R. 137 (B.C.C.A.), (not a left turn case), for the principle that the plaintiff’s entitlement to assume that other traffic will obey the law, is “subject to the proviso” (in counsel’s phrase) that where it is apparent or should be apparent that an oncoming driver is not going to yield the right-of-way, then at that point the other driver must act reasonably and cannot simply proceed into the collision, as it were. At the least, Mr. Johnson says, it was open to the trial judge to find that in the circumstances, Ms. Kokkinis failed to exercise reasonable care for her own safety and the safety of others, and that she must therefore bear some responsibility for the accident.

10 I must say this argument has given me pause; but ultimately I resolve it by asking whether in law Mrs. Kokkinis should be faulted for diverting her attention momentarily from oncoming traffic to check cross traffic at the point in time in question, i.e., as she prepared to start her turn – to see if any of those cars had jumped the light or were going to pose a threat to her turn. Was this an unreasonable or careless thing to do? I think not, given both the realities of the situation (which of course occurred over only a few seconds) and past decisions of this Court that have imposed on left-turning drivers the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection. To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. An amber light is not, as the current witticism suggests, a signal to accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice Esson noted in Uyeyama, in a busy city like Vancouver and at a busy intersection like 25th and Granville, an amber is likely the only time one can complete a left turn. Drivers approaching intersections must expect that this will be occurring. Putting a burden on a left turning driver to wait until he or she sees that all approaching drivers have stopped would, in my view, bring traffic to a standstill. We should not endorse such a result.

11 Accordingly, notwithstanding the principle (which I do not doubt) that questions of apportionment are generally questions of fact with which we should interfere only in exceptional cases, I would conclude that the issues I have referred to are ones of law and that the learned trial judge erred in law in placing too high a standard on the plaintiff and in failing to consider the assumptions she was entitled to make. I would not apportion any of the fault to her and would apportion 100 percent to Mr. Hall.

The court held that this was a similar case to Kokkinis and found the through driver at fault.
In terms of injuries the Plainitff suffered from general body trauma, bruising and soreness, soft tissue injuries to the neck, chest wrist and knee. The most significant injury was to the back and the court found that “3 years post-accident the Plaintiff continues to have significant pain from his back. Any prolonged activity, such as sitting in a lecture hall or travelling in a sitting position over 45 minutes causes soreness and pain. The Plaintiff is not recommended to pursue recreationbal activities of a physical nature such as football, which he had formerly done.”
The court awarded damages totalling $74,978.13 including $45,000 for non-pecuniary damages (pain and suffering).

Contact

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

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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