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"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).
In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.
Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

More on ICBC Claims, Fault and Credibility

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


After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault.  If there are no independent witnesses to a crash it can be difficult to decide which version is more believable.  When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say.  Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.
In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC.  The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel.  He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”
The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries.  There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence.  Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit.   The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“.  These were some of the reasons which caused the Court to prefer the Defendant’s version of events.  In dismissing the lawsuit the Court held as follows:

[48]        The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision.  For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.

Why Having the Right of Way is Not Always Enough

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


I’ve previously written that having the right of way is not always enough to escape blame for a motor vehicle collision.  Reasons for judgement were released today further demonstrating this point.
In today’s case (Hmaied v. Wilkinson) the Defendant was driving up a windy road in Port Moody, BC.  At the same time the Plaintiff, then 15 years old, was jaywalking in front of the Defendant.  The Plaintiff was “jogging slowly as he crossed the road“.
The Defendant was speeding.  He saw the Plaintiff jaywalking but “continued to drive at an excessive rate of speed directly toward (the Plaintiff)“.  The Plaintiff crossed beyond the Defendant’s lane of travel.  Unfortunately he dropped his cell phone and “instinctively turned back into the (defendant’s) lane and bent over to pick it up without looking in the direction of oncoming traffic”  As he straightened up after picking up his phone he was struck by the Defendant’s vehicle.
Despite having the right of way, the Defendant was found 50% at fault for the crash.  In coming to this finding Madam Justice Dickson provided the following reasons:

[34] I conclude that the plaintiff and the defendant both failed to exercise due care in all of the circumstances and that both failures were proximate causes of the Accident.  In my view, the parties are equally blameworthy and liability should be apportioned on a 50% basis to each of them.

[35] The defendant had the right of way, but he did not take reasonable precautions in response to the obvious hazard presented by a young person jaywalking across his path of travel.  I accept that he could not specifically foresee the plaintiff would drop his cell phone and move back into the middle eastbound lane in order to retrieve it. I do not accept, however, that he was entitled to assume the plaintiff would obey the rules of the road or otherwise behave in a predictable manner as he jogged diagonally across Clarke Road.  On the contrary, the defendant knew that the youthful plaintiff was behaving unsafely by jaywalking in the face of oncoming traffic.  In these circumstances, other forms of unsafe behaviour were predictably unpredictable and the defendant should have slowed down and changed lanes immediately when he saw the plaintiff.  Had he done so, the Accident would not have happened:  Nelson (Guardian ad litem of), supra; Ashe, supra; Claydon, supra; Karran, supra; Beauchamp, supra.

[36] The plaintiff also failed to exercise due care for his own well-being.  He jaywalked in the face of oncoming traffic and, mid-course, turned back to retrieve his cell phone without checking to see how close the approaching vehicles had come.  In so doing, he exposed himself to the risk that he would be struck by an approaching vehicle.  That risk was realised and his negligent actions were also a proximate cause of the Accident.

If you have the right of way but know that someone is failing to yield you must take reasonable steps to avoid a potential collision otherwise you can bear some of the blame.

BC Court of Appeal Clarifies Law of Compensation for Injuries With Multiple Causes

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


Very important reasons for judgement were released today by the BC Court of Appeal making it easier for a Plaintiff involved in multiple not at fault traumas to be properly compensated for their injuries.
In today’s case (Bradley v. Groves) the Plaintiff was injured in 2 BC motor vehicle collisions.  The first happened in 2006.  She was not at fault.  She suffered from various soft tissue injuries which were recovering (but not recovered) when she was involved in a second collision in 2008.  She was faultless for this crash which aggravated the soft tissue injuries from the first crash.
The Plaintiff sued the motorist in the first crash.  The trial judge found that the injuries were “indivisible” and that the two crashes “were both necessary causes of the indivisible injuries“.  The trial judge valued the Plaintiff’s non-pecuniary damages of $30,000 for the entirety of her injury.  The Plaintiff was awarded damages for the whole amount with the trial judge stating that since the Plaintiff was not at fault for either event and since her injuries were indivisible this was the correct approach.  (you can click here to read the trial judgement)
The Defendant appealed arguing that the judge should have apportioned damages between the two crashes and only awarded the Plaintiff damages for the crash that she was suing for.  The Court of Appeal disagreed and upheld the trial judgment.  In doing so the Court clarified this important area of law which will now make it easier for not at fault Plaintiff’s injured through multiple events to be properly compensated for their loss.  The BC High Court provided the following useful reasons:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

Motorist Found 40% At Fault for Striking Jay-Walking Teenager

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

(Update: The below decision was upheld by the BC Court of Appeal in reasons for judgement dated August 3, 2011)

As I’ve previously written, motorists travelling with the right of way can still be found at fault for a collision in British Columbia.  If you have the right of way but know or ought to know that someone is not yielding you can be found at fault if you fail to take reasonable steps to avoid a collision in these circumstances.  This principle was well demonstrated in reasons for judgement released today by the BC Supreme Court, Kelowna Registry.
In today’s case (Walter v. Plummer) the 16 year old pedestrian Plaintiff was struck by the Defendant’s motorcycle.  The Plaintiff was jaywalking at the time of the collision.  The Plaintiff crossed in front of a stopped tractor trailer and stepped into the Defendant’s lane of travel.  This made it difficult to see the Plaintiff.  The Defendant was not speeding.  Despite this the Defendant was found partially at fault for the crash for failing to take reasonable care in all of the circumstances leading up to the crash.
The Court concluded that the Defendant was careless because she ought to have anticipated jaywalkers at the time and could have taken greater care in operating her motorcycle.  Mr. Justice Barrow provided the following useful summary in explaining why both parties were at fault for this crash:

[25] I am satisfied that Mr. Walter was crossing the street at a casual walking pace, neither particularly fast nor particularly slow. Ms. Plummer was travelling approximately one to two feet to the left of the mid-point of the southbound right turn lane. She saw Mr. Walter for the first time when he emerged from in front of the tractor-trailer truck and walked into her path of travel.

[26]         Based on Dr. Toor’s and Ms. Plummer’s evidence, I am satisfied that the point of impact between Mr. Walter and Ms. Plummer’s motorcycle was two or three feet into the right turn lane and that Mr. Walter was visible to Ms. Plummer for perhaps two more feet as he passed from in front of the tractor-trailer truck to the boundary of the right turn lane…

[41]         There are several significant features of the circumstances facing Ms. Plummer that serve to elevate the degree of care required.

[42]         The first is the reasonably foreseeable risk of jaywalking pedestrians. The defendant was aware that students frequently jaywalked across Rutland Road. Ms. White said that, in her experience, there were many jaywalking students in that area shortly after the schools are dismissed. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.

[43]         A second and related circumstance is that Ms. Plummer knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.

[44]         Finally, and significantly, Ms. Plummer was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.

[45]         All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent. It is a situation in which a driver ought to have been proceeding in an “alerted” state, to borrow from the categories used in the perception-response studies.

[46]         As to Mr. Walter, he owed a duty to take reasonable care for his own safety. He breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of Ms. Plummer. I apportion liability 60 percent to Mr. Walter and 40 percent to Ms. Plummer.

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

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


When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.
BC Courts must, in most circumstances, use the “but for” test.  In the most basic terms, a driver has to exhibit some level of carelessness.  From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“.  If the answer is yes then the careless party must be found, at least partially, to blame for the accident.  This week the BC Court of Appeal discussed this area of law.
In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane.  It was dark and the Defendant remained stopped for a period of time.  The speed limit was 90 kilometers per hour.  He did not activate his brake lights or emergency flashers.  The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.
The Plaintiff sued for damages.  His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash.  (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded.  The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault.  In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:

[16]         I now turn to the legal test to establish causation.  In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test.  The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  At para. 21 of Resurfice, the Chief Justice said:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

[17]         The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.

[18]         In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms.

[19]         The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:

“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence.  It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event.  As I have explained, these implications are not correct – every event has multiple historical factual causes.  The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36.  It suggests a limit on the scope of liability.  There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy.  It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112, [1990] 3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.

[20]         The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test.  The judge must have employed a last clear chance analysis when he used the term “proximate”.  That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him.  The judge found that the defendant was negligent.  Indeed he could hardly have found otherwise.  The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.

[21]         The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati, [1996] 3 S.C.R. 458).  There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability.  In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury.  The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”.  I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.

[22]         In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent.  That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23).  The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis.  If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.

[23]         This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307, [1997] B.C.J. No. 350).  Normally a sudden stop does not create an unreasonable risk of harm.  However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.

[24]         I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.

If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”.  From there you need to ask “but for that wrongful act, the injury would not have occurred?“.  If the answer is yes then you have a theory on which to advance your case.

Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk

Written by admin on . Posted in ICBC Liability (fault) Cases. 56 Comments on Bus Driver Found 5056 Responsible For Collision With Cyclist Riding in Crosswalk


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC.  He was travelling on the left side of the street.    At the same time the Defendant was operating a school bus and driving in the opposite direction of travel.  As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn.  The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk.  A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault.  The Court found that both parties were equally at fault for the collision.  In reaching this decision Mr. Justice Smith reasoned as follows:

[18]         The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27]      The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

[19]         The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20]         Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21]         Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22]         However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23]         In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage:  Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]         The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25]         Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]         In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.

Can You Successfully Sue For Injuries in a "No Impact" Collision?

Written by admin on . Posted in ICBC Dental Injury Cases, ICBC Hand Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 66 Comments on Can You Successfully Sue For Injuries in a "No Impact" Collision?

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.
The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.
Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:
[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…
[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…
[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.

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

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


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

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

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

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

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

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

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

[14] I would accordingly dismiss the appeal.

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

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

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

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

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

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

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

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

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

[15]      In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can be done safely.  Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersection is generally entitled to continue and the servient left-turning driver must yield the right of way.  The existence of a left-turning vehicle does not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care.  Where the defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent at fault for a collision which occurs.

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

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

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

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