Tag: liability

$8,000 Non-Pecuniary Damages for "Not Substantial" Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Gradek v. DhaimlerChrystler) awarding a Plaintiff just under $10,000 in total damages as a result of a 2006 BC Car Crash.
The collision occurred in an intersection as the Plaintiff was attempting to drive through.  The Defendant made a left hand turn in front of the Plaintiff.  Both Liability (Fault) and Quantum of Damages (Value of the case) where at issue.  The Court found that the left hand turner was 100% responsible for the crash. Paragraphs 21-34 of the case are worth reviewing for a good discussion of the law concerning fault for intersection crashes.
Mr. Justice Savage found that the Plaintiff “exaggerated the impact of his injuries” and that he suffered nothing more than relatively minor soft tissue injuries.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $8,000 the Court summarized the Plaintiff’s injuries as follows:

[35] Gradek’s evidence regarding the impact of the injury on him is at times contradictory and confusing.  Gradek evidence contradicts that of his physician, Dr. Milne, who was called as a witness by Gradek, was qualified as an expert, filed an expert report and testified.

[36] Gradek description of the impact, however, accords with the somewhat unusual damage caused to the left front bumper of his vehicle.  With respect to the impact of the accident on him, I accept the evidence of Dr. Milne where Gradek’s evidence conflicts with that of Dr. Milne.  I find that Gradek has exaggerated the impact of his injuries.

[37] Dr. Milne testified that he found objective signs of injury on examination which he conducted on May 15, 2006.  The accident occurred on May 13, 2006.  Gradek was seen in Dr. Milne’s office but by another physician on May 14, 2006.  Gradek was diagnosed with soft tissue injuries, namely, a tender Trapezii muscles and tender Latissimus dorsi muscle.  He was prescribed Flexiril for ten days and Naprosyn for ten days.  Gradek was prescribed physiotherapy.  He was off work.  On May 23rd, he was much better but lower back and neck pain persisted as did the objective signs of injury.  Gradek was advised to continue to physiotherapy and to return to work on May 29, 2006.

[38] Gradek was seen again on May 30, 2006 he said he was 50 percent improved but unable to return to work.  He was advised to return to work on June 5, 2006, which he did.  Gradek was seen again on June 19, 2006 and July 3, 2006.  He had continuing minor complaints that were not severe enough to warrant prescription medication.

[39] Gradek was next seen in December 2006 where he reported minor complaints for two days, but had been fine for the last four to five months.  He was prescribed Naprosyn for five days.  Gradek was not seen again until May 5, 2007 where he had a headache and neck pain for three days.  Gradek reported that he had no pain between August 2006 and May 2007 other than for two days in December 2006 and three days in May 2007.

[40] Gradek was last seen by Dr. Milne June 15, 2009.  There were no specific complaints although he was still experiencing occasional right side pain.  This did not prevent him from engaging in vigorous exercise.  I accept Dr. Milne’s summary as a fair summary of the injuries and consequences with one exception, as noted below.  Dr. Milne summarizes:

In summary, Mr. Gradek Henryk was involved in a motor vehicle accident in May 13, 2006.  He incurred soft tissue injuries to the neck and lower back which resulted in him missing 4 weeks of work in 2006.  His injuries were not substantial and he shows no evidence of long term damage as a result of this motor vehicle accident.

The parties agree that Dr. Milne’s reference to four weeks of missed work in 2006 is in error as earlier in the report he specifies three weeks which is also consistent with employer records.


BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act.

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

ICBC Injury Claims and Your Driving History

When you are involved in a suit for damages in an ICBC injury claim can you access the opposing parties driving history?  Reasons for judgement were recently brought to my attention making just such an order.
In the recent case (Rothenbusch v. Van Boeyen) the Plaintiff claimed damages against the Defendant.  Liability (fault for the car crash) was at issue.  During the examination for discovery the Plaintiff’s lawyer asked the Defendant how many speeding tickets he had.  He could not recall exactly and indicated “one or two“.   The lawyer then asked for him to produce his driving history and he refused.
In the application for production of the Defendant’s driving history Master Caldwell of the BC Supreme Court held that “(the Defendant) was unable to provide an actual firm answer (as to how many speeding tickets he had)…The defence says that the driving pattern is not particularly relevant, unlike defence requests for previous medical records and that type of thing.  She indicates that this is a highly invasive application with respect to the privacy of the Defendant, and that unlike a plaintiff who opens their life up to investigation when they commence an action, the same cannot be said of the defence.  I am not really satisfied that that is necessarily the case, particularly in a situation where liability is at issue as it is here.  I am satisfied based on the questions asked and answered  and the form of the answers contained in the discovery transcript, that this record as sought may be producible.”
Despite ordering production of this record the Court went on to note that the same may not be admissible at trial.  Specifically Master Caldwell held that “Whether or not (the driving record) is relevant and passes the test of admissibility of trial will be up to the trial judge…I will order that the Defendant provide a copy of his driving record for a period of three years prior to the …accident”.

Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.
In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.
The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.

Registered Vehicle Owners and Fault in BC – A Heavy Burden

(Please note the case discussed in this post was overturned by the BC Court of Appeal.  Please go to the September 2010 Archives of this site to read my article discussing the BC Court of Appeal decision)
The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.
What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Reasons for judgement were released today showing just how far Courts in BC can go in determining the circumstances in which an owner “consents” to someone else operating their vehicle.
In today’s case (Snow v. Friesen) the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.
The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the Court went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted “express consent” under section 86 of the BC Motor Vehicle Act.
The Court’s discussion of the law of liability of registered owners is set out below.  This case is worth reviewing in full for all vehicle owners in British Columbia as it shows the serious duties courts impose on vehicle owners when they let others take possession of their vehicles:

[68] Pursuant to the common law and s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, an owner of a vehicle is vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent, express or implied, of the owner.

[69] As is apparent from my analysis of the evidence and findings of fact, the implied consent doctrine does not arise in this case.  Instead, the issue stands to be determined on the basis of express consent.  Specifically, it is necessary to decide whether, in these circumstances, the plaintiff has proven that Ms. Friesen had the vehicle with the consent of Mr. Saul.

[70] I consider the following statement of Thackray J.A. in Barreiro v. Arana, 2003 BCCA 58, to be apposite:

[13]      Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme.  The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor.

[71] The cases are replete with reference to the notion of public policy and the necessity of recognizing the legislative intent of s. 86.  Again, I will resort to a quotation from Barreiro:

[26]      The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

[24]  It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles.  Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative.  The legislation in question must be regarded as remedial.

[27]      Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need.  As Mr. Justice Goldie said, the legislation is remedial.  As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

[28]      The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.”  In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

[72] A helpful discussion of the importance of bearing in mind the underlying rationale, or legislative purpose, of the legislation is found in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, where the matter was touched upon by Newbury J.A., writing for a five judge division of the Court, although the issue there was principally one of determining the liability of an individual who held rights under a conditional sales contract.  Nevertheless, she considered the social and economic policy objectives of the legislation, and the legislative intention.  Her analysis is found at paras. 32 through 38.  I will not reproduce the entire discussion, but consider it worthwhile to quote a portion of her conclusion as found at para. 38:

… the purposes of s. 86 are, I would suggest, similar – to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.  These objectives are consonant with the objectives of vicarious liability generally, as described by McLachlin J. (now C.J.C.) in Bazley v. Curry [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173, the leading Canadian case on vicarious liability.

[Emphasis added.]

[73] In my view, the outcome which must result in the facts at bar is determined by an application of the leading decision on the issue, Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391.  There, an employee of Vancouver Motors U-Drive Ltd. had rented an automobile to a driver who had no valid licence.  The driver had falsely represented that he was another person, and showed that person’s valid driver’s licence.  He signed that person’s name to the rental agreement.  The driver was subsequently involved in an accident, and the appellant argued that it was not vicariously liable because the negligent driver had not acquired possession of the car with the appellant’s consent.  In interpreting a legislative provision similar to s. 86 of the Motor Vehicle Act, Kerwin J., for the majority, stated as follows:

In the present case, the appellant physically transferred the possession of the motor vehicle to Walker. Does the fact of Walker’s false statement that he was Hindle and the holder of a subsisting driver’s licence, accompanied by the forgery of Hindle’s name, vitiate the consent that was in fact given? There may be no difficulty in two of the hypothetical cases put in argument, (1) where a motor vehicle is stolen from a garage, and (2) where possession is obtained from the owner by duress. In the first there would be no consent in fact and in the second the owner would not have been at liberty to exercise his free will. On the other hand, the class of owners under subsection 1 of section 74A is not restricted to those who carry on such a business as the appellant and circumstances may be imagined where an owner loaned his automobile to a friend on the latter’s statement that he possessed a subsisting driver’s licence, which statement might be false either because he never had possessed such a licence or because his current licence had been revoked; or again, where A secured possession of an automobile by falsely representing himself in a telephone conversation with the owner of the vehicle to be a neighbour’s chauffeur. It is impossible to conceive all the various circumstances that might give rise to the question to be determined here but in my view an express consent is given, within the meaning of the enactment, when possession was acquired as the result of the free exercise of the owner’s will.

[74] Later, Kerwin J. reached the following conclusion:

The word “consent” may have different meanings in different statutes. In the present case it has, in my opinion, the meaning already indicated and, on that construction, express consent was given by the employees of the appellant to Walker’s possession of the motor vehicle even though the action of the employees was induced by Walker’s false statements.

[75] In this case, Mr. Saul, of his own free will, absent duress or theft, gave consent to the person who asked to use the motor vehicle.  The fact that Mr. Saul was mistaken as to the identity of that individual does not change the outcome.

[76] In Vancouver Motors U-Drive, consent was not vitiated even though the agent/employee was misled as to the identity of the person renting the car.  In Bareham (Guardian ad litem of) v. Desrochers, [1994] B.C.J. No. 1826, 97 B.C.L.R. (2d) 186 (S.C.), on an application of the same principle, the mother of the driver argued that she had not consented to her son having her vehicle because she was not aware that he had no driving licence.  The trial judge there, Macdonell J., found that once the mother gave consent, the fact that her son was driving her car illegally was irrelevant to the application of s. 86(1).

[77] The erroneous basis upon which Mr. Saul granted his consent is no defence.  The onus was on him to ensure the public safety in lending his truck.  The statute imposes a duty upon him, which duty includes knowing and assessing the fitness of the driver who seeks to have his vehicle.  The heavy burden which is imposed upon motor vehicle owners was not met.

[78] In the present case, Mr. Saul did not take steps to confirm the identity of the person who sought to use his vehicle, other than relying upon what turned out to be the assumption of Mr. Connolly.

[79] The focus of the analysis is on whether the owner gave express consent to the individual who seeks to have the vehicle.  Once that is found, as the facts of that case indicate, there is not a great deal which will impact upon the imposition of liability.

[80] While judicial interpretation of s. 86(1) may, at first glance, appear overly strict, as Paris J. stated in Beaudoin v. Enviro-Vac Systems Inc., [1992] B.C.J. No. 205, 1992 CanLII 444 (S.C.), at para. 13:

The Legislature has placed a very heavy onus on the owner of a motor vehicle who chooses to permit another to drive it. Whether that policy is or is not draconian is not for me to say.

[81] I have no doubt that the outcome here may seem harsh from the perspective of Mr. Saul.  However, holding him liable fits within the purpose of s. 86(1) and the manner in which it has been applied.  From a broader policy perspective, it fits within what has been found to be the most efficient and effective risk allocation from both an economic and public safety perspective, two elements that are central to s. 86(1).

Pedestrian Struck on Road at Night Found 90% at Fault for Crash

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault in a pedestrian collision case.
In today’s case (O’Connor v. James) the Plaintiff was walking along No. 6 Road in Richmond, BC, when he was struck by the Defendants vehicle.  The Plaintiff consumed some alcohol before the collision and was struck while he was walking on the actual roadway (as opposed to the shoulder) at the time of impact.  As a consequence the Court found that the Plaintiff was in breach of various provisions of the BC Motor (Vehicle) Act.
Specifically, Mr. Justice Burnyeat made the following findings of fact with respect to this accident:
[22] It was the consensus of all witnesses that Mr. O’Connor was dressed entirely in black that night and was wearing no reflective clothing.  I also find that the approaching vehicle driven by Mr. Hockley had the low beams activated.  I also find that the street light at the corner of No. 6 Road and Triangle Road was not operating.  Taking into account all of the evidence, I find that Mr. O’Connor was on the road surface, and not on the grass median beside the southbound lane of No. 6 Road when he was hit….

[23] I accept the evidence of Ms. Journeau, Mr. Hockley, Ms. Kamayah, and Mr. James that Mr. O’Connor was in the southbound lane of No. 6 Road when he was hit by the vehicle driven by Mr. James.  I find that it would have been impossible for the collision to have occurred on the grassy median and for the vehicle driven by Mr. James to have come to rest where it did if the contact with Mr. O’Connor had been on the grassy median.  Walking where he was walking, Mr. O’Connor violated a number of provisions of the Motor (Vehicle) Act, R.S.B.C. 1996, c. 319:

179      (2)  A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

182      (1)  If there is a sidewalk that is reasonable passable on either or both sides of a highway, a pedestrian must not walk on a roadway.

(2)  If there is no sidewalk, a pedestrian walking along or on a highway must walk only on the extreme left side of the roadway or the shoulder of the highway, facing traffic approaching from the opposite direction.

[35] From the evidence, I make the following findings:  (a) the temperature that night in the area approached the freezing point; (b) the road surface was either icy or covered with dew as a result of the new-freezing atmospheric conditions; (c) the posted speed limit on No. 6 Road is 50 km/h; (d) the vehicle being driving by Mr. James was travelling at somewhere between 55 km/h and 65 km/h that night; (e) it was the intention of Mr. James to make a left turn at the intersection of No. 6 Road and Triangle Road and this intersection which would be to the left of Mr. James was being approached by Mr. James; (f) the vehicle driven by Mr. Hockley was being driven towards Mr. James and the low-beam lights of the Hockley vehicle were activated; and (g) the street light at the intersection of No. 6 Road and Triangle Road was not operative so that illumination of No. 6 Road at that point was diminished.

The court went on to find that the Pedestrian Plaintiff was 90% to blame for this collision and that the Defendant motorist was 10% to blame.  In dividing fault this way Mr. Justice Burnyeat made the following analysis:

I am satisfied that Mr. James was negligent in the operation of the vehicle which struck Mr. O’Connor.  Mr. James ignored the road conditions, visibility on No. 6 Road, the speed limits, his knowledge that there were no sidewalks, and his knowledge that there might be pedestrians.  All of these factors contributed to a need for Mr. James to drive more slowly than even the speed limit which was in effect.  Mr. James owed a duty of care to Mr. O’Connor and did not meet that duty by driving his car at the speed he was going when it hit Mr. O’Connor….

It is clear that the judgment of Mr. O’Connor was somewhat impaired by alcohol.  As well, he was dressed entirely in black without reflective clothing.  His clothing made it difficult if not impossible for drivers to see him.  Contrary to s. 182(2) of the Motor (Vehicle) Act, Mr. O’Connor was not walking facing traffic, and was not walking on the shoulder of No. 6 Road.  Mr. James has shown that the conduct of Mr. O’Connor that evening showed a want of reasonable care for his own safety and that this contributed to causing his injuries.  Mr. James has proven that Mr. O’Connor did not conduct himself in a reasonable manner so that his injuries could have been avoided or, at least, diminished.  In the circumstances, I assess liability at 90% against Mr. O’Connor and 10% against Mr. James.

BC Court of Appeal Discusses Causation in Negligence Claims

The law of ‘causation’ was discussed extensively in reasons for judgment released today by the BC Court of Appeal.
Today’s case (Chambers v. Goertz)  involved the appeal of the trial judge’s findings of liability.  At trial the court found a taxi driver partially responsible for a crash for leaving his high-beams on which made it difficult for another motorist to see various Plaintiffs crossing a street.  The other motorist then struck the Plaintiffs causing injuries. (Click here to read my post on the trial judgment).
The taxi driver appealed this finding arguing that “the trial judge erred in law in finding that his conduct was a ‘contributing cause’ of the plaintiffs injuries“.
This appeal was dismissed and the trial judgment was upheld.  In dismissing the Appeal the BC Court of Appeal discussed the law of Causation in personal injury actions, specifically what the law requires for there to be a compensable relationship between the wrong act and injury to the victim.
The Court summarized this area of law as follows:

[18] The Supreme Court’s other use of “material contribution” is seen in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, [1997] 1 W.W.R. 97, where Major J., writing for the Court, held in the following passage that causation will be established if it is shown that the defendant’s negligence “materially contributed” to the occurrence of the plaintiff’s injury:

The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury:  Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.);McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske(1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

]      In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. …

[17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury.  There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring.  To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”.  As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury.  There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

This proposition has long been established in the jurisprudence.  Lord Reid stated in McGhee v. National Coal Board, supra, at p. 1010:

It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury.  There may have been two separate causes but it is enough if one of the causes arose from fault of the defender.  The pursuer does not have to prove that this cause would of itself have been enough to cause him injury.

[Emphasis in original]

[19] As this passage illustrates, every injury has multiple necessary or “but for” factual causes.  The function of tort law is to identify those for which the defendant should be held responsible.  Thus, in Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th), 4 C.C.L.T. (2d) 229, Sopinka J., writing for the Court, said, at 326,

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

[20] For purposes of determining whether a breach of duty was a “but for” cause of particular harm, there are no degrees of causation – specific conduct was either necessary for the harm to occur or it was not.  However, not every cause necessary for the harm to occur can reasonably be considered a candidate for liability.  For example, in this case, the accident would not have occurred but for the taxi company dispatcher’s sending Mr. Ahmad to respond to Ms. McDonald’s call, but no one would suggest that the dispatcher should be found liable for what happened.  Therefore the law takes cognizance only of those causes that play a significant role in bringing about the outcome.

[21] This concept has been expressed in different ways.  As I have noted, in Athey v. Leonati, the Court said at para. 15 that “causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury”, and that a “material contribution” is one that “falls outside the de minimis range”.  To similar effect the Court said, inSnell v. Farrell, at 327, that proof of causation requires “a substantial connection between the injury and the defendant’s conduct”.  “Substantial connection” was also used to describe this idea in R. v. Goldhart, [1996] 2 S.C.R. 463 at 480, 136 D.L.R. (4th) 502, 107 C.C.C. (3d) 481, where the Court said,

The happening of an event can be traced to a whole range of causes along a spectrum of diminishing connections to the event.  The common law of torts has grappled with the problem of causation.  In order to inject some degree of restraint on the potential reach of causation, the concepts of proximate cause and remoteness were developed.  These concepts place limits on the extent of liability in order to implement the sound policy of the law that there exist a substantial connection between the tortious conduct and the injury for which compensation is claimed. …

[22] Clearly, the “material contribution” test discussed in Resurfice Corp. v. Hanke has nothing to do with the circumstances of this case.  Here, it was not impossible for the plaintiffs to prove causation.  Rather, whether the breaches of duty of the parties played legally significant causal roles in the outcome was in each case a question of fact to be answered by rational inference drawn in the usual way from the evidence.  Causation is essentially “a practical question of fact which can best be answered by ordinary common sense”:  Snell v. Farrell at 328, citing Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at 490 (per Lord Salmon).

[23] It was this conventional “but for” test of causation that the trial judge applied when she held that Mr. Ahmad’s breach of duty was a “contributing cause” of the accident and that he was therefore liable.  Her use of the phrase “contributing cause” signifies that she found as a fact that Mr. Ahmad’s conduct played an important enough role in the combination of events necessary for this occurrence to fix him with liability for the consequences.  This was the correct approach in the circumstances and I would reject the submission that she erred in adopting it.

BC Personal Injury Claims Round Up

On Friday two more cases were released by the BC Supreme Court dealing with non-pecuniary damages which  I summarize below to add to this Pain and Suffering database.
The first case (Macki v. Gruber) dealt with a bus accident.   The Plaintiff’s vehicle was struck by a Greyhound bus in Duncan, BC.  Liability was contested but the Greyhound bus driver was found 100% at fault for the accident.  Paragraphs 1-60 of the case deal with the issue of fault and are worth reviewing for Mr. Justice Metzger’s discussion of credibility.  In finding the Defendant at fault the Court found that he was “careless” and that he “lied” and his evidence was rejected in all areas that it was in “conflict with the testimony of any other witness“.
The Plaintiff suffered various injuries, the most serious of which neck pain, headaches and upper back pain.  She was diagnosed with a chronic pain syndrome.  Mr. Justice Metzger assessed her non-pecuniary damages at $75,000 and in doing summarized the Plaintiff’s injuries and their effect on her life as follows:

[144] I find the chronic pain has made Ms. Mackie reclusive and morose. She has gone from a “bubbly, fun-loving, outgoing, social, interesting” person, to someone who is  anti-social, with bouts of depression and sadness. From the evidence of the plaintiff and Ms. Garnett, I find that the plaintiff defines herself as a very hardworking woman, but that the chronic pain prevents her exhibiting her previous commitment to work.

[145] This loss of enjoyment of life and identity is given considerable weight.

[146] I am satisfied the plaintiff is resilient and stoic by nature, and I do not doubt the extent of her pain and suffering. She has endured a regime of injections in order to retain some of her employment capacity. Plaintiffs are not to receive a lesser damage award because of their stoicism.

[147] I am satisfied that the plaintiff’s injuries and ongoing limitations are more like those cited in the plaintiff’s authorities and therefore I award her $75,000 in non-pecuniary damages.

__________________________________________________________________________________________________

In the second case released on Friday (Dhillon v. Ashton) the Plaintiff was involved in 2 separate rear-end collisions.  Both claims were heard at the same time and fault was admitted leaving the court to deal with the sole issue of damages.

Madam Justice Ross found that the Plaintiff suffered various soft tissue injuries in each of the 2 accidents.  She awarded non-pecuniary damages in total of $25,000 for both collisions.

In assessing an award of $15,000 for non-pecuniary damages for the first accident the Court summarized the Plaintiff’s injuries as follows:

[60]         I find that Mr. Dhillon suffered soft tissue injury to his neck, right shoulder and low back in the First MVA. He suffered from headaches arising from this injury, but these resolved in a relatively short period of time. The injury to the right shoulder had essentially resolved by mid-May 2005. I find, consistent with Dr. Sandhu’s report that Mr. Dhillon was unable to work as a result of his injuries from the time of the First MVA to mid-May 2005 and then continued to suffer partial disability at work until July 2005. By July 2005 he was able to return to work without limitation. I find that his injuries from the First MVA were essentially resolved by October 2005, except for intermittent pain, consistent with Dr. Sandhu’s report. From October 2005 until the time of the First Workplace Accident, Mr. Dhillon required the use of pain medication for low back pain that was the consequence of both his prior condition and lingering consequences of the First MVA.

[61]         In the result, I find that Mr. Dhillon suffered mild to moderate soft tissue injury from the First MVA with the symptoms most significant in the first three months following the injury; with some ongoing problems for the next five months and intermittent pain thereafter. I find the appropriate amount for non-pecuniary damages for the First MVA to be $15,000.00.

In assessing non-pecuniary damages of $10,000 for the second accident Madam Justice Ross summarized the injuries it caused as follows:

[64]         I find that Mr. Dhillon suffered soft tissue injuries in the Second MVA that resulted in an exacerbation of his injuries to his neck, shoulder, and low back. He had returned to work following the Second Workplace Accident before the Second MVA, but was not able to work after this accident. He required physiotherapy, chiropractic treatment and pain medication for both the continuing injuries from the Workplace Accidents, an apparent recurrence or continuation of the right side back problem first noted in 2000, and the Second MVA. Mr. Dhillon was able to return to work part-time in November 2006 and full-time in January 2007. He requires some accommodation from his employer in terms of his duties. He continues to experience pain and requires medication to control his pain. I find that the Second MVA plays some role, albeit a minimal one, in Mr. Dhillon’s continuing symptoms, the other more significant contributors being the original complaint of low back pain, and the two Workplace Accidents.

[65]         In the circumstances, I find that $10,000.00 is an appropriate award for non-pecuniary loss for the Second MVA

Can you be at Fault for a Crash if you have the Statutory Right of Way?

The short answer is yes and reasons for judgment were released today demonstrating this.
In today’s case (Karran v. Anderson) the Plaintiff was seriously injured when she was struck by the Defendant’s vehicle while she was jogging “against the light in a marked crosswalk“.  As a consequence of the impact the Plaintiff “was thrown fifty-seven feet in the air and landed in the south crosswalk…She suffered an occipital hematoma, a fractured left femur, a dislocated right knee…back and neck injuries as well as extensive bruises and abrasions.”
At the time of the accident the Defendant had a green light and he was not speeding.  The Plaintiff, on the other hand, was jaywalking.  Nonetheless Mr. Justice Cohen of the BC Supreme Court found that the Defendant was partially at fault for this crash.  How can this be?  The reason is the determination of fault in BC Personal Injury Claims (with the exception of intentional torts) is governed under the common law of Negligence.  A person can be found negligent even if they did not brake any statutory law during an accident.  Mr. Justice Cohen summarized this principle concisely stating that ” the authorities establish that the common law duty of care exists notwithstanding statutory rights of way and that a breach of a statutory right of way merely provides evidence in support of a finding of a negligent breach of the common law duty of care
In today’s case the court made the following findings of fact about how the collision occurred:
I find that the plaintiff jogged across Howe Street against the light in the north crosswalk in front of vehicles that were stopped in the two middle southbound lanes; that the southbound vehicles that were stopped when the plaintiff passed in front of them had the green light; that just before the plaintiff was struck by the truck she glanced to her left looking north up Howe street in the east curb lane; that there was heavy rush hour traffic; that the east curb lane on Howe street was open to southbound traffic; that some of the westbound traffic travelling on Smithe Street had failed to clear the intersection thereby preventing other westbound vehicles from entering the intersection; that the defendant’s speed reached 50 km/h; and, that the defendant braked his vehicle just prior to the collision.
The court found that the Defendant was 25% to blame for this collision because he failed “to take any steps to avoid the accident“.  In coming to this conclusion Mr. Justice Cohen highlighted the following facts:
[65] Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident.  In my opinion, he did.  I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street…

[67]         The defendant was proceeding on a green light and thus had the right of way.  However, I find that the defendant did not keep a proper lookout.  He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street.  I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.

[68]         Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff…

[100] The defendant accelerated from the intersection at the intersection of Howe and Robson Streets to reach 50 km/h and he maintained this speed to virtually the point of impact with the plaintiff.  I agree with the plaintiff that driving at the speed limit in the east curb lane while the vehicles in the middle two lanes were stopped on a green light was not reasonable nor prudent given the traffic conditions at the intersection.

This case contains a lengthy and thorough discussion of the law regarding the duties of motorists and pedestrians in crosswalk accidents and is worth reviewing in full for anyone researching or involved in a liability case dealing with the same.

More on Liability – Stop Signs, Speeding and Fault

Reasons for judgment were released this week dealing with the issue of fault for a car crash where one motorist bound by a stop sign enters an intersection and gets hit by a speeding vehicle.
In this week’s case (McKinnon v. Peterson) the Plaintiff stopped at a stop sign heading northbound on Marlborough Avenue at the intersection of Kingsway.  As the Plaintiff entered the intersection and almost cleared it he was struck by the defendants vehicle who was travelling westbound.   The Plaintiff’s vehicle was struck on the right passenger side in a “violent” collision which caused all four tires of the defendant’s vehicle to leave the ground and “drove the plaintiff’s vehicle… over the curb, flattening a stop sign, shearing a light standard, and through a garden bed, and finally into the front of a restaurant. ”
When a motorist leaves a stop sign and attempts to cross an intersection on a through highway the motorist needs to comply with s. 175 of the Motor Vehicle Act which holds in part that:

175(1)  If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a)        the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b)        having yielded, the driver may proceed with caution.

(2)        If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway.

Mr. Justice Hinkson held that while the Plaintiff entered the intersection at a time when the Defendant did not constitute an “immediate hazard” the Plaintiff failed to proceed with caution by “failing to observe the defendant’s vehicle that was there to be seen” and for this the Plaintiff was found at fault.

The analysis did not end there, however, as the Defendant was also found at fault for speeding and failing to yield the right of way to the plaintiff who gained the right of way after he entered the intersection at a time when the Defendant did not pose an immediate hazard.

Specifically Mr. Justice Hinkson found that “the defendant was traveling at a speed of close to double the posted speed limit as he approached the intersection of Kingsway and Marlborough Avenue on November 2, 2006, and that he was unable to do so safely. He failed to yield the right of way to the plaintiff.”

The Court went on to find the Defendant 2/3 at fault for this collision and the Plaintiff 1/3 at fault.  In doing so Mr. Justice Hinkson described the relative fault of the parties as follows:

[47] I am unable to conclude that such a division of liability is warranted in this case. Mr. Petersen was travelling at what I have found to be an unsafe speed in all of the circumstances, and knew, or should have known that he would be unable to safely stop for vehicles that might choose to cross Kingsway, having acquired the right of way to do so. His conduct in these circumstances was reckless.

[48] On the other hand, Mr. McKinnon chose to cross a six lane street at other than a traffic controlled intersection, knowing that vehicles travelled that road at that time of day at speeds greater than posted. In so doing, he was obliged to proceed with caution, and I find that he did not.

[49] Weighing the respective negligence of the parties, I consider that the defendant must bear the majority of the liability for the collision. I conclude that the defendant’s conduct was considerably more negligent than the plaintiff’s, and that the defendant must bear two-thirds of the blame for the collision, and the plaintiff the remaining one-third. There will be judgment accordingly.

Intersection crashes are some of the most complicated cases when determing the relative blameworthiness of each party.  While each case turns on its own facts and the results can very depending on all the subtleties of evidence in any given case, this decision is worth reviewing for a careful analysis of some of the factors that come into play when deciding whom to blame to what degree for an intersection crash.

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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