Tag: Madam Justice Dorgan

Single Vehicle Leaving Roadway With No Reasonable Explanation Sufficient to Prove Negligence

Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway.  The Plaintiff had no recall of how the collision occurred.  The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence.  Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred.  In so concluding the Court provided the following reasons:
[30]         Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability.  See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident.  In such cases, the plaintiff bears the burden of proof.  The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized:  see paras. 23-24.
[31]         However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident.  The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane.  The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction.  While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived.  The only reasonable inference to draw is that the defendant was driving while drunk.
[32]         I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant.  The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway.  There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash.  The Plaintiff, the sole survivor, had no recall of what occurred.   The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
[100]     The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash.  The posted speed limit was 110 kph.  The vehicle was travelling in excess of 130 kph at the time of the accident.  As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness.  I accept this evidence.  Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention. 
[101]     In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8.  The defendants led no evidence to the contrary.  

The High Cost of a Successful WCB Defence in a Personal Injury Lawsuit


As previously discussedSection 10 of BC’s Workers Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment.  If this defence is raised and succeeds in a personal injury lawsuit the claim will be dismissed exposing a Plaintiff to ‘loser pays’ costs consequences.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In this week’s case (McKay v. Marx) the Plaintiff was injured in a 2005 collision.   His vehicle was rear-ended by a Fed Ex vehicle.  The Plaintiff sued for damages.  There was no dispute that the Defendant was in the course of employment when the crash happened.  The defendant argued that the plaintiff was also a ‘worker’ and therefore his right to sue was stripped away.  The issue was sent to WCAT for determination who ruled that the Plaintiff was indeed a worker.
Given WCAT’s findings the Plaintiff’s lawsuit was dismissed.  The Defendant applied for costs and ultimately was successful.  In doing so Madam Justice Dorgan provided the following reasons:

[32] The circumstances in which the plaintiff found himself are unfortunate and they garner some sympathy. However, the authorities explicitly prohibit this court from denying costs by exercising discretion out of a sense of fairness or sympathy or a comparison of the relative economic strength of the parties.

[33] In summary, the defendants successfully pled a s. 10 Workers Compensation Act defence and are thus the substantially successful party ?? the winner of the event. The evidence as presented falls short of demonstrating such reprehensible conduct on the part of the defendants that would allow the court, in the exercise of its discretion, to depart from the general rule. Accordingly, the defendants are entitled to costs.

Getting Your Time Estimate Right For Trial


Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

A Great Rule 37-B Precedent – Reality of Insurance in ICBC Claims Discussed

Reasons for Judgement delivered by Madam Justice Dorgan on July 30, 2009 were recently transcribed and have come to my attention applying Rule 37B in a favourable way to a Plaintiff who failed to beat an ICBC formal offer of settlement.
In this case (Robbeson v. Gibson) the Plaintiff was injured in a BC Motor Vehicle Collision.  The Defendant (insured by ICBC) made a formal offer of $82,100 under Rule 37B.  At trial the Jury awarded the Plaintiff $52,700 for damages.  In other words, ICBC beat their formal settlement offer.
The defendant (through ICBC) brought a motion seeking to deprive the Plaintiff of her costs from the date of the formal offer forward and further seeking to have the Plaintiff pay the Defendant’s costs and disbursements from the date of the formal offer forward.  Such an order is not unusual when ICBC beats a formal offer at trial.  If this motion was granted the punishing effect would in essence leave the Plaintiff with $0 as the costs consequences would eat up almost the entire $52,700 awarded by the Jury.
Madam Justice Dorgan refused to grant the Defendant’s application and instead ordered that the Plaintiff ‘be deprived of all tariff items to which she would otherwise be entitled‘ from a few weeks following the delivery of the formal offer through trial and further awarding the Plaintiff to ‘all disbursements incurred from the comencement of the action to the conclusion of trial‘.
In reaching this conclusion Madam Justice Dorgan made some important comments when applying Rule 37B which I highlight below:
On the topic of the purpose of Rule 37B the Court stated  “the cost consequence (of Rule 37B) is meant to encourage litigants to reach settlements; reasonable settlements, and to impose penalties on those litigants who decline to accept offers which are reasonable in all of the circumstances...”
In considering “the relationship between the offer and the final judgement” the Court held that the gap between $80,000 and $52,000 was not ‘dramatically divergent’.  Specifically Madam Justice Dorgan noted that “the swing is not wild…the relationship between the offer and the award is, in my view, a neutral factor on the question of costs‘.  In coming to this conclusion it was noted that “the overall award clearly reflects the jury’s conclusion that the plaintiff was injured as a result of the defendant’s negligence and that she suffered losses, both non-pecuniary and pecuniary“.
When considering the relative financial circumstances of the parties the Court seems to have considered the fact that the Defendant was insured by ICBC.  Judgements to date are still inconsistent in determining whether a policy of insurance is a relevant consideration under Rule 37B.  Madam Justice Dorgan did not ignore the reality that this case was defended by ICBC through a policy of insurance as opposed to directly financed by the Defendant.  Addressing this issue the court noted as follows “the defendant’s financial position is unknown.  While he testified, he did not actively involve himself in this litigation.  ICBC defended the case.  I have no need to, nor should I, go into a comparison of the financial circumstances of a corporate citizen versus a private citizen, but each of the two citizens is entitled to competent counsel, entitled to pursue their claim on the basis of advice received by each of those counsel, and that is what happened here.  On the issue of financial circumstances, I am advised that the jury award, as I have earlier said, will be effectively cancelled if the defendant obtains a costs order from the date of the offer to the conclusion of trial…It is reasonable for me to conclude that (the plaintiff) has significant disbursements from prosecuting her claim.  Certainly, the trial disbursements would be significant.  In all those circumstances, this factor, I am satisfied, favours the Plaintiff

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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