Tag: liability

Vehicle Damage and the Law of "Accelerated Depreciation"

When a vehicle is damaged in a BC car crash and subsequently repaired, the repaired vehicle may have a lower market value than it otherwise would have.  Can the owner of such a vehicle be compensated for this loss?  The answer is yes and is dealt with under a head of damage known as ‘accelerated depreciation’.  Reasons for judgment were released today by the BC Supreme Court dealing with this legal principle.
In today’s case (Cummings v. Daewoo Richmond) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff purchased a used vehicle from the Defendant Daewoo.  Seven days later she lost control of her vehicle and was injured as a result of the crash.  Madam Justice Gerow found that the Defendant sold the Plaintiff a vehicle with defective tires.  The court then concluded that “the accident was caused by a loss of friction due to the wear on the rear tires of the vehicle, and that Daewoo has failed to establish that Ms. Cummings’ operation of the vehicle either caused or contributed to the accident.”
The court went on to award the Plaintiff just over $38,000 in total damages including $7,600 for ‘accelerated depreciation’ of her vehicle.  I set Madam Gerow’s discussion out of this area of the law below:

Accelerated depreciation

[70] Ms. Cummings is claiming the amount of $7,600 for accelerated depreciation of the Nissan due to the damage it sustained in the accident. For the following reasons, I have concluded that an award in that amount for accelerated depreciation is appropriate.

[71] The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.

[72] Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73] It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.

Can you be at Fault for a BC Car Crash if you are Rearended?

Although such a finding is unusual the short answer is yes, you can be at fault for a car crash when rear-ended by another motorist.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry demonstrating this.
In today’s case (Saffari v. Lopez) the Plaintiff sustained injuries when she rear-ended the Defendant’s vehicle in West Vancouver on the on-ramp to the Lion’s Gate Bridge.
Traffic at the time of the crash was sparse.  The Plaintiff was following the Defendant’s vehicle.  The Defendant’s passenger attempted to ‘throw out a cigarette and thought it came back in‘ and in reaction to this the Defendant brought his vehicle to ‘a fairly sudden slowdown‘.  At this time the Plaintiff collided with the Defendant vehicle.
Mr. Justice Harvey of the BC Supreme Court found that both the Plaintiff and Defendant were equally to blame for this collision, he reasoned as follows in reaching this conclusion:

[41] Section 144(1)(b) prohibits drivers from driving without reasonable consideration for other persons using the highway.

[42] Such would include, in my opinion, consideration of the circumstances of stopping or suddenly slowing one’s vehicle in the flow of traffic where other viable options, such as exiting the roadway, existed.  The emergency resulting in the deceleration of the Lopez vehicle was self-created.  In any event, there is no suggestion that the cigarette had fallen onto the driver’s lap or otherwise onto his person.  Mr. Lopez’s reaction, that is to suddenly slow or stop his vehicle, was but one of several choices he had.  He acknowledged these included signalling an intention to change lanes to reach a point of safety where he could stop his vehicle without impeding traffic or putting on four-way flashers to alert following vehicles and other users of the road to an emergency.

[43] I find Mr. Lopez was negligent in suddenly stopping or slowing his vehicle on the roadway approaching the Lions Gate Bridge: Ayers.  Here, unlike in the authorities referred to by the defendant, traffic was not stop and go as was the case in Pryndik v. Manju, 2001 BCSC 502 at para. 2, aff’d 2002 BCCA 639, nor was there such a lapse of time between the action of the defendant and the happening of the accident to bring the circumstances of this case within the reasoning of the Court in Peterson v. Cabot, 2000 BCSC 1453.

[44] I also need to consider the actions of the plaintiff Ms. Saffari and what, if any, responsibility rests with her actions leading to the collision.

[45] I must reject, almost in its entirety, the evidence of Mr. Javanpour as it relates to the driving of Ms. Saffari prior to and leading to the accident.

[46] His evidence concerning matters such as the conversations he overheard, the use or availability of a cell phone during the journey preceding the accident coupled with his description and explanation as to the Jeep’s running lights, all make his evidence of events unreliable.

[47] Ms. Saffari’s description of events, while more credible in terms of the totality of the evidence, is equally wanting in some areas.  Her description of the conversation with Ms. Pfeifer coupled with her denial of it on discovery, her varying estimates of her speed and that of the Jeep, her admission that she “momentarily lost sight of the Jeep” coupled with the elaborate description of her evasive actions also cause me to question more important aspects of her evidence as it relates to the moments or seconds leading to the accident.

[48] Ms. Saffari never said the Lopez vehicle slammed on the brakes.  She testified she saw the brake lights of the Jeep come on as she entered the arc of the curve.  She did not describe a panic stop nor is such consistent with the evidence of Mr. Lopez.  Her evidence as to “losing sight of the Jeep” simply makes no sense if her estimate as to the separation between the vehicles and her speed is consistent and she was maintaining proper lookout.  Were she travelling both at the speed she describes and the distance from the Jeep when she saw the lights come on, she could have stopped.  This is not a case where the doctrine of “agony of collision” applies.  Drivers are daily confronted with vehicles in front of them stopping or slowing for all sorts of reasons.  If Ms. Saffari did react in the elaborate manner she and Mr. Javanpour described in their evidence then she did so because she was travelling either too fast for conditions or too close behind the Lopez vehicle to bring her car to a timely stop once confronted by the hazard posed by the defendant’s driving.

[49] In the circumstances, I find the plaintiff and defendant equally at fault for the accident.  The defendant Ms. Pfeifer is accordingly liable, as owner, in like proportion to Mr. Lopez.

Could You Be At Fault For A Crash If You Have the Right of Way?

The short answer is yes, and reasons for judgment were released by the BC Supreme Court (Bain v. Shafron) today discussing this legal principle.
In today’s case a collision occurred over 8 years ago in Vancouver, BC.  (the reasons why the case took over 8 years to get to trial are discussed in the judgment).  The Defendant entered an intersection on a green light.  While there she yielded to a bus that was trying to make a left hand turn.  By the time the bus cleared the intersection the Defendant’s light turned red.  The Plaintiff, then approaching from the Defendant’s right, entered the intersection on a green light and a collision occurred.   
Despite entering on a green light Madam Justice Fisher of the BC Supreme Court found the Plaintiff to be 100% responsible for this collision and dismissed the claim.
In doing so she discussed the law relating to collisions and the duties of driver’s with the right of way as follows:

[11]            As I explain below, I have found that Ms. Shafron lawfully entered the intersection of Oak and Broadway.  Accordingly, she had a statutory right of way under s. 127(1)(a)(iii) of the Motor Vehicle Act and Mr. Bain was obligated to yield to her right of way when he entered the intersection:

127 (1) When a green light alone is exhibited at an intersection by a traffic control signal,

(a)        the driver of a vehicle facing the green light

(iii)       must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited …

[12]            Ms. Shafron as the driver of the vehicle with the right of way was the dominant driver and Mr. Bain was the servient driver.  A dominant driver does not lose that position by unreasonable actions but the existence of a right of way does not entitle the dominant driver to disregard an apparent danger: Atchison v. Kummetz, (1995), 59 B.C.A.C. 81 at para. 19, Abbott Estate v. Toronto Transportation Commission, [1935] S.C.R. 671.  There is a duty of care to avoid a collision when the dominant driver sees or ought to see that the other driver is not yielding the right of way: Bedwell v. McGill, 2008 BCCA 6.  In order for the plaintiff in this case to prove that the defendant was negligent, Mr. Bain must establish that Ms. Shafron should have become aware that he was not yielding and that she had a sufficient opportunity to avoid the collision.  Any doubts should not be resolved in favour of the plaintiff: Walker v. Brownlee, [1952] D.L.R. 450 (S.C.C.) at para. 50, Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347, Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75.

[13]            The standard of care of a driver is not one of perfection, but whether the driver acted in a manner which an ordinarily prudent person would act: see Hadden v. Lynch, 2008 BCSC 295 at para. 69 and the cases cited therein.

The principles summarized by Madam Justice Fisher are something all BC motorists should be familiar with.  Just because you have a green light (or otherwise have the right of way) does not necessarily mean you are not at fault for a collision.  If you are a ‘dominant driver’ and can reasonably avoid a collision where someone is not yielding to your right of way you may be negligent and liable for the crash.

ICBC Injury Claims and Fault

If a Court finds that 2 or more people are responsible for a motor vehicle collision in British Columbia the Court must ‘apportion’ liability as between them.  How does the court do this?  What factors are considered when determining the percentage of blame to put on each at fault party?  
Reasons for judgement were released today by the BC Supreme Court (Mills v. Seifred) addressing this topic. 
Today’s case involved a tragic accident between a motorcycle and a dump truck on September 1, 2005 in Langley, British Columbia.  The truck turned in front of the motorcycle driver.  It appears, based on the style of cause, that the motorcycle driver was killed as a result of this impact.
The court found that the motorcyclist was careless and contributed to the collision.  He was travelling in a 60 kmph zone and the court found that he was travelling some 90 kmph at the time of impact.  The court determined that this contributed to the collision because “speed removes options for effective collision avoidance manoeuvres….there can be no doubt that (the Plaintiff’s) excessive speed played a causative role in the occurrence of the accident“.
The court also found that the Dump Truck Driver was careless because he ‘did not take sufficient time or care to keep a sharp lookout at the on coming traffic just before committing to the left turn.’
In determining that the Dump Truck driver was 65% to blame for the crash and the Plaintiff 35% the Court summarized and applied the law as follows:

[97]            Where, as here, the fault of two or more persons combine to cause a loss, liability will be apportioned.  Apportionment is governed by the Negligence Act, R.S.B.C. 1996, c. 333.  The relevant provisions are set out below:

s.1 Apportionment of liability for damages

(1)        If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2)        Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3)        Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed.

s.4 Liability and right of contribution

(1)        If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault.

s.6 Questions of fact

In every action the amount of damage or loss, the fault, if any, and the degrees of fault are questions of fact.

[98]            In assessing apportionment, the court examines the extent of blameworthiness, that is, the degree to which each party is at fault, and not the degree to which each party’s fault has caused the loss.  Put another way, the court is not assessing degrees of causation, rather, it is assessing degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 [Cempel]; Aberdeen v. Langley (Township), 2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta, 2008 BCCA 420. 

[99]            In Alberta Wheat Pool v. Northwest Pile Driving Ltd., [2000] 80 B.C.L.R. (3d) 153, 2000 BCCA 505, Finch, J.A. (now the Chief Justice), for the majority of the Court of Appeal, explained this important principle at paras. 45-47:

In my view, the test to be applied here is that expressed by Lambert, J.A. in Cempel, supra, and the court’s task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.

Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care.  Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[100]        In Aberdeen, Groves J. provided insight into the difficulty that the court faces in quantifying the concept of blameworthiness under the Negligence Act.  At para. 62 he endorsed the enumeration of factors in assessing relative degrees of fault set out by the Alberta Court of Appeal in Heller v. Martens, as follows:

1.         The nature of the duty owed by the tortfeasor to the injured person…

2.         The number of acts of fault or negligence committed by a person at fault…

3.         The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault…

4.         The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy… Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis…

5.         The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy…

[Authorities omitted.]

[101]        To the foregoing factors, Groves J. added the following at para. 67:

6.         the gravity of the risk created;

7.         the extent of the opportunity to avoid or prevent the accident or the damage;

8.         whether the conduct in question was deliberate, or unusual or unexpected; and

9.         the knowledge one person had or should have had of the conduct of another person at fault.

[102]        After surveying the authorities, Groves J. summarized at para. 67 the approach to be taken in assessing the relative degree of blameworthiness of the parties:

Thus, the key inquiry in assessing comparative blameworthiness is the relative degree by which each of the parties departed from the standard of care to be expected in all of the circumstances. This inquiry is informed by numerous factors, including the nature of the departure from that standard of care, its magnitude, and the gravity of the risk thereby created.

[103]        On appeal, the decision in Aberdeen in relation to the issue of contributory negligence was remitted for retrial.  However, the Court of Appeal did not criticize Mr Justice Groves’ careful summation of the governing legal principles on apportionment.

[104]        Mr. Cavezza continued in the oncoming lane at an excessive speed in order to pass a trail of vehicles long after the dividing line for eastbound traffic had become solid.  He persisted in doing so on his approach to the Eastbound Hill, which would have hampered his view of oncoming traffic, and after the appearance of double solid lines which would tell him that the oncoming traffic had impaired visibility his way.  He did not take advantage of the openings in the line of eastbound vehicles to merge earlier; had he done so, there would have been no accident.  Instead, Mr. Cavezza chose to merge near the brow of the Eastbound Hill and once in the lead, maintained an excessive speed.  In assessing the degree of Mr. Cavezza’s blameworthiness, I have borne in mind the fact that traffic as a whole speeds along that segment of 16th Avenue.  Even so, it cannot be overlooked that Mr. Cavezza’s deliberate conduct violated, in a substantial way, the expected standard of care of a user of that road in those circumstances.  He showed a reckless disregard for the safety of fellow users and created a substantial level of risk for himself and others.

[105]        Turning to Mr. Seifred’s fault, the law imposes upon him a very high degree of care to observe caution in crossing double solid lines.  Although he was not speeding, he did not come to a complete stop or likely even hesitate prior to crossing the oncoming lane and cut the driveway at a 45 degree angle.  Mr. Seifred travelled 16th Avenue frequently and is taken to know that speeding vehicles along that route were more the rule than the exception.  Had he kept the sharp look-out reasonably expected of him, he would have seen Mr. Cavezza advancing in the eastbound lane and would not have initiated his turn in such patently unsafe circumstances.  Mr. Seifred breached his duty to take reasonable care to a severe degree and created a grave risk for himself and a fatal one for Mr. Cavezza.  

[106]         In all the circumstances, I consider Mr. Seifred’s conduct more blameworthy than Mr. Cavezza’s.  I apportion liability 65% against Mr. Seifred and 35% against Mr. Cavezza.

Court of Appeal finds Bicyclist 60% at Fault in ICBC Injury Claim

I am pressed for time today so this ICBC Injury Law update will be short on detail.
In reasons for judgement released today by the BC Court of Appeal (Quade v. Schwartz) a Trial judgement holding a bicyclist 75% at fault for an intersection collision with a motorist was overturned and the Court of Appeal determined that the cyclist was 60% at fault for the the collision.
I blogged about the trial level judgement when it was released and you can read my previous post for background.
Today the Court of Appeal found the trial judgement to be plainly unreasonable and engaged in the following analysis in finding a lesser degree of fault for the cyclist:

[14]            The Negligence Act, R.S.B.C. 1996, c. 333 provides, by s. 6, that apportionment of fault is a question of fact.  Accordingly, apportionment of fault should not be varied on appeal unless the appellant can demonstrate some palpable or overriding error in the trial judge’s assessment of the facts, or there are “strong and exceptional circumstances”: see Stein v. “Kathy K” (The), [1976] 2 S.C.R. 802; Ryan v. Victoria (City), [1999] 1 S.C.R. 201 and Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[15]            The defendant also relies upon the standard of review applicable on appeal from proceedings conducted on summary trial under Rule 18A.  It must be demonstrated that the judge’s conclusion cannot reasonably be supported: see Orangeville Raceway Ltd. v. Wood Gundy Inc., 59 B.C.A.C. 241, 6 B.C.L.R. (3d) 391, and Colliers Macaulay Nicolls Inc. v. Clarke, [1989] B.C.J. No. 2455.

[16]            Apportionment of fault is made not as an assessment of the relative degrees to which the parties’ conduct is implicated causally in the damages suffered, but rather on the relativeblameworthiness of the parties’ conduct.  In Cempel v. Harrison Hot Springs Hotel Ltd., 100 B.C.A.C. 212, 43 B.C.L.R. (3d) 219 Mr. Justice Lambert said:

[19]      … The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances.

[20]      The approach to apportionment that I have described is supported by the decisions of this Court in Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (see particularly at p.277) and Dao v. Sabatino (1996), 29 C.C.L.T. (2d) 62 (see particularly at p.75). In the Ottosen case the point was put in these words:

The words used are the words of fault. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation.

[Emphasis added]

[17]            In this case, the judge said the plaintiff’s conduct was “extremely careless and showed little concern for safety” (para. 63). 

[18]            In considering the defendant’s relative blameworthiness, the trial judge said only that he should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane. 

[19]            With respect, this characterization of the defendant’s relative degree of blameworthiness fails to take account of a number of matters.  First, there is no reference to the duty owed by a left-turning driver under s. 174 of the Motor Vehicle Act to yield the right of way to oncoming through-traffic that is so close as to constitute an immediate hazard.

[20]            On the trial judge’s findings of fact, there is no doubt that the plaintiff had the statutory right of way.  She found that:

1.         when the defendant was starting to cross the northbound lanes, the plaintiff was in a well-lit area (para. 41);

2.         the defendant should have had an unobstructed view of him (para. 42);

3.         the defendant should have seen the plaintiff before pulling out in front of him because the plaintiff was there to be seen (paras. 43 and 60);

4.         the plaintiff was south of the intersection when the defendant started to turn left; and

5.         the plaintiff was an immediate hazard when the defendant began his left turn (para. 56).

On all of these findings, the plaintiff enjoyed the statutory right of way under s. 174 of the Motor Vehicle Act, and was entitled to expect that the defendant would yield the right of way to him. In the judge’s words, the plaintiff “had no reason to suspect that Mr. Schwartz would pull out in front of him” (para. 57).

[21]            Yet there is no mention of these facts, nor of the defendant’s breach of statutory duty in the trial judge’s assessment of the relative blameworthiness of the two parties. 

[22]            I infer from the trial judge’s holding that the plaintiff was “extremely careless”, and from the apportionment of fault that she made, that she considered the plaintiff’s negligence in failing to have a lighted headlight on his bicycle to be far more blameworthy conduct than the negligence of the defendant as detailed above. It is difficult to understand why this would be so, and the judge provides no explanation.

[23]            There is no doubt that in riding at night without a lighted headlight, the plaintiff demonstrated a lack of reasonable care for his own safety.  There is also little doubt that the absence of a headlight on the bicycle made it more difficult for oncoming motorists to see the plaintiff. 

[24]            In Chesley v. Irvine, [1987] B.C.J. 520 (C.A.), a motorcyclist rode into a Kamloops intersection in the hours of darkness without a headlight on the motorcycle.  The cyclist collided with the defendant who was making a left turn in his vehicle in the intersection.  The trial judge held the motorcyclist 40% responsible, and the driver of the left turning vehicle 60% responsible.  In this Court, Mr. Justice Taggart said:

Each driver here had a duty of care to the other. Each was required to maintain an appropriate look-out for other vehicles. Each had a duty to take care to avoid an accident. In addition, the defendant, as the driver turning left across two lanes in which southbound traffic might be expected, had an obligation to insure that she could safely make the turn.

The judge found her look to the north for southbound traffic was casual and insufficient. I see no basis upon which we could or should interfere with that conclusion. But what the defendant was looking for was a vehicle with lights on. That is what she should have been looking for. She did not see that kind of vehicle for the good reason that it was not there. The vehicle that was there had no lights on.

In my opinion, the plaintiff in these circumstances cannot rely on his full dominant position on the highway and the judge was in error in according him that dominant position. Furthermore, the defendant’s vehicle was there to be seen by the plaintiff. Unlike the plaintiff’s motorcycle, the lights of the defendant’s vehicle were on, as was her left turn signal. The plaintiff failed to see it and, consequently, failed to take, so far as can be ascertained, any action to avoid the collision.

In the circumstances of this case I think we are entitled to intervene and reapportion the degrees of fault. I would allow the appeal and find the plaintiff 60% at fault and the defendant 40%.

[25]            Lambert J.A. in concurring reasons said:

The Supreme Court of Canada adopted the line of English authorities. The stricture is imposed on this court that we should not vary an apportionment unless we are convinced it is clearly wrong. Mr. Justice Ritchie, for the Supreme Court of Canada, said it would require a very strong and exceptional case.

But when we can indentify the specific point on which we conclude there was an error by the trial judge that affected his apportionment then that will be a very powerful circumstance to persuade us that his apportionment must be reconsidered.

In this case, immediately before the trial judge made his apportionment he said:

“Nonetheless he was in the dominant position.”

Referring to the plaintiff on his motorcycle. But the significant factor is that the headlight of his motorcycle was not on. The fact that that headlight was not on did not cause him to lose his dominant position, but it made the dominant position much less significant a factor than it would otherwise have been. That reduced significance does not seem to have been considered by the trial judge at the point in his judgment where he made his apportionment.

[26]            In the result, the Court varied the parties’ relative degrees of fault, holding the defendant 40% at fault, and the plaintiff 60% contributorily negligent. 

[27]            In that case, the trial judge’s error appears to have been in holding that the plaintiff continued to enjoy the statutory right of way when his failure to have a lighted headlight made it more difficult for the defendant to see her approaching.  In the words of Lambert J.A., the absence of a headlight on the plaintiff’s vehicle: “made the dominant position much less significant a factor than it would otherwise have been”.

[28]            The same reasoning may be said to apply in this case.  However, the significant difference between the two cases is that in the circumstances of the case at bar the trial judge specifically found that the defendant should have seen the plaintiff before he pulled out in front of him, and the plaintiff was there to be seen.  I interpret these findings to mean that although the absence of a headlight on the bicycle was a negligent act on the plaintiff’s part, it had relatively little to do with the defendant’s failure to see the plaintiff given the well-lit nature of the intersection. According to the judge’s findings, even without a headlight the defendant should have seen the plaintiff and should have yielded the right of way to him.  Thus, while the absence of a headlight on the plaintiff’s bicycle may have diminished the importance of his statutory right of way it cannot be said to have displaced it to the extent that is seen in Chesley. 

[29]            In my respectful view, the trial judge’s apportionment of fault, on her findings of fact, was plainly unreasonable and a palpable and overriding error. 

[30]            I would allow the appeal and vary the apportionment of liability by holding both the plaintiff and the defendant equally at fault for the accident.

 

Intersections, Left Hand Turns and ICBC Injury Claims

(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability.  You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection.  Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver.  There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between.
Reasons for judgement were released today dealing with an intersection crash finding a left hand turning  vehicle 100% responsible for an intersection crash.  In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC.  This intersection is controlled by a stop sign.  As the Plaintiff was turning left her vehicle was struck by the Defendant’s.  Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:

[40] The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic.  He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle.  She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.

[41] The plaintiff relies on the provisions of s. 175(1) of the Act.  She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard.  Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.

[42] The plaintiff was the left turning vehicle.  It was her obligation, in accordance with s. 174 of the Act, to yield the right of way to the traffic approaching from the opposite direction.  The plaintiff did not turn her head to observe whether traffic was approaching.  Nor did the plaintiff comply with the provisions of s. 175 of the Act.  She did not stop before entering the intersection.   The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close.  She did not proceed with caution, despite driving slowly.

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach.  Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely.  The plaintiff did not determine whether her turn could be done safely.

[46] The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.

[47] The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff.  The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic.  The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.

[48] Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution.  The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution.  Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.

[49] Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic.  I agree.  The plaintiff was driving very slowly and could stop almost immediately.  It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path.  She did.  When the defendant honked, the plaintiff stopped.  It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.

[50] The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection.  In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.

[51] Therefore, the plaintiff’s claim is dismissed.  The defendant shall have his costs.

Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

If you are jaywalking and are injured in a BC Car Accident, can you make a claim for pain and suffering?  The answer is it depends on the circumstances.
Reasons for judgment were released today by the BC Supreme Court illustrating the principle that simply because someone is in breach of the law at the time of a car crash they can still succeed in advancing a negligence claim (a claim for pain and suffering and other damages against another party).
In today’s case (Lemesurier v. McConnachie) the Plaintiff was injured when she was struck by a vehicle as she was crossing Victoria Street in Trail, BC.  At the time she was jaywalking.  For this she was found at fault for the collision.   However, the court also found that the motorist that struck the Plaintiff at fault concluding that the motorist was not driving with appropriate caution at the time of the collision.  The court made the following analyisis in finding the jaywalker 60% at fault for the crash and the motorist 40% at fault:

[21]            Where, however, there are circumstances known to a motor vehicle operator, that render questionable the presumption that the rules of the road will be respected by pedestrians, the exercise of due care is not met by behaving in accordance with the presumption.  One cannot be deemed to presume facts at odds with known circumstances.  “Due care” on the night of this accident included the known, and (by the plaintiff), specifically observed circumstance that there were pedestrians about and, that given the nature of the event, they might not be taking all due care for their own safety.  This required an extra degree of caution in the circumstances.  The plaintiff acknowledged this herself in turning into the centre lane to avoid pedestrians.

[22]            The question then becomes whether the plaintiff has proved that the plaintiff’s want of due care, applying s. 181, contributed to the collision.  Liston v. Streiger, CA 18770, CA19363 Vancouver Registry (June 25, 1996) is a case in which the Court of Appeal apportioned negligence 60-40 against a pedestrian who was struck in Penticton during the “Peach Festival” in a somewhat comparable atmosphere, in that the exercise of due care included adjusting ones’ driving habits to accommodate the possibility of careless behaviour by pedestrians.  There the facts, as found by the trial judge and accepted by the Court of Appeal, included the plaintiff “running barefoot across a busy street at night, in a poorly lit area in a state of intoxication… she glanced into the curb lane and proceeded to run into it … .”

[23]            The defendant’s position is that apart from any discussion of legal presumptions and duties, the effect of the evidence is that the plaintiff simply ran into the defendant’s car in circumstances where the defendant had no opportunity to avoid striking her.  The widths of the lanes established in evidence suggest that the distance from the curb to the point of impact is not great and could be traversed in a matter of seconds by a person who was running.  The defence submits that the plaintiff’s evidence that she simply did not see the defendant until she was upon her may be attributed to the probability that the plaintiff was running.

[24]            The useful evidence is, again, that of the defence witness Ms. Howes.  Apart from establishing that the collision occurred while the traffic signals were against the plaintiff, and that the plaintiff was not in the crosswalk, Ms. Howes’ evidence is that she saw a large group of people crossing the road from her vantage in the intersection.  Some were running.  Her evidence is that the plaintiff was among the last of that group attempting to cross.  Ms. Howes saw shadows crossing the road and had enough time to form the impression that someone was going to be hit because approaching cars were not slowing down.

[25]            I accept that Ms. Howes probably saw the plaintiff running.  It may well be, as the defence assets that she ran right in front of the car leaving the defendant very little time to react to her specific presence.  This does not, however, explain how the defendant could approach the intersection without slowing or without the utmost caution given that a large group of people had proceeded to cross moments before contrary to the traffic signal.  The effect of Ms. Howes’ evidence, which I accept, is that the presence of people on the road was manifest, and that the defendant should have been alert to that fact.  She should not, in view of the circumstances, have been “surprised” by pedestrians behaving as the plaintiff did.

[26]            I am of the view that the plaintiff should bear the larger portion of the responsibility for what happened to her.  With respect to the division of liability, I find it difficult to distinguish the relative degrees of responsibility here from those established in Liston (supra).  Accordingly, I divide responsibility for what occurred 60% to the plaintiff and 40% to the defendant.

This case goes to show that simply because one party is breaking the law at the time of a BC car crash another party can still be (partially or wholly) responsible.  Each case turns on its own circumstances and a breach of a law of one party will not excuse careless driving by another when it comes to the law of negligence (the law that governs ICBC claims for pain and suffering).

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

Passenger Found Liable for Grabbing Steering Wheel of Vehicle

(Please note the case discussed in this article went before the BC Court of Appeal in March, 2010, you can click here to read my post discussing the Court of Appeals Reasons)
Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004.  The vehicle left the roadway, hit a ditch and over-turned.  3 of the 4 occupants sued for personal injuries.
The front seat passenger grabbed the steering wheel while the vehicle was in operation.  The vehicle then lost control.  The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night.  Hers was the only memory subject to the confounding effect of excessive alcohol consumption.  I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41] Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol.  The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish.  I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did.  The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel.  I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42] I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night.  Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43] In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch.  (the driver) was not negligent and did not contribute to the cause of the accident.  (the driver) was sober and was competent to drive the Jeep.  No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.
In this case the vehicle was owned by the front seat passenger’s father.  He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle.   Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86 (1)        In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner, or

(b)        acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle.  In fact the court found that:
[24] The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession.  His purpose for imposing that rule was to keep the children and his cars safe.  That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends.  The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.
The court found that the father (owner) did consent in these circumstances finding that:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!
Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle.  Specifically the court found that:

[51] When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory.  As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52] For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it.  (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.

$24,515 Damages Awarded for Moderate Soft Tissue Injury

Reasons for judgement were released today awarded damages as a result of injuries sustained in a 2005 Kamloops, BC car crash.
The Plaintiff’s vehicle was rear-ended as she slowed to make a right hand turn.
Normally in such rear-end cases liability (fault) is admitted but in this case liabilty was disputed.  The Defendant claimed that the accident was caused by the actions of the plaintiff when she ‘accelerated in front of him, cut him off and themn braked quite dramatically at the corner (of the intersection).’
The court rejected this defence and found that “this is not a case where the evidence supports a conclusion that the plaintiff’s vehicle cut in front of the defendant in such a way as to alleviate his responsibility‘.  The defendant was found 100% to blame.
In terms extent of injury, the court made the relevant findings at paragraphg 50 of the judgement, which I set out below:
[50]            I conclude that (the Plaintiff) sustained a moderate soft tissue whiplash injury in December 2005 which caused pain and discomfort to her neck and back and resulted in her experiencing headaches.  These symptoms were initially acute, causing her to miss approximately three weeks of work and necessitating that she take pain medication and treatment, most notably physiotherapy.  The pain and discomfort at times extended to her hip area.  It gradually subsided with the passage of time.  It was significantly resolved within three to four months of the accident, but she continued to experience some discomfort and limitation of her activities, albeit on a gradually improving basis, over time, up to the point of trial.  At trial, all of the complaint of headache had resolved but there was some lingering discomfort and stiffness in her neck and back.  That discomfort is essentially resolved at this time, and there is every reason to conclude that she has not sustained any permanent damage.  With proper exercise and self-care, there will be a complete resolution
The court awarded $22,000 for these moderate soft tissue injuries, $2,163.21 for lost wages and $351 for special damages.
This is a short crisp judgement dealing with issues that often arise in ICBC claims.  This case is worth reviewing for anyone involved in an ICBC injury claim to see some of the factors court’s consider when valuing soft tissue injuries and addressing the issue of fault in a rear-end crash.
 

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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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