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Tag: Matheson v. Fichten

Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.
In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision.  The matter proceeded to trial first on the issue of fault.  Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“.  ICBC did not lead this evidence at trial.  Ultimately fault for the crash was split between the motorists involved on a 90/10 basis.   Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue.  Madam Justice Smith refused to do so providing the following reasons:
[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.
[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.
[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…
[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.

Driver Found 10% At Fault for Timing a Green Light

As previously discussed, having the right of way does not automatically result in a driver being found faultless for a collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Matheson v. Fichten) the Plaintiff was a passenger in a Northbound vehicle in a designated left hand turn lane.  The advance green arrow ran its course resulting in a green light for North and south bound traffic.  The driver proceeded with his turn despite no longer having the advance green arrow.
At the same time the Defendant was driving Southbound in the curb lane.  He was several car lengths back from the intersection when his light turned green.  Other Southbound vehicles began to accelerate but then stopped realizing the Plaintiff vehicle was turning.  The Defendant did not stop and entered the intersection when the collision occurred.
Despite having the right of way the Southbound Defendant was found 10% at fault for the collision.  In coming to this assessment Madam Justice Smith provided the following reasons for judgement:
[57] I find that the Bahniwal vehicle was travelling at the speed limit of 50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had slowed when the light ahead was red, but then resumed speed after the light turned green, two to three car lengths from the intersection.  I find that the presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s view of what was occurring in the intersection except for the portion immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s left began to move forward, but they stopped almost immediately.  Mr. Bahniwal overtook those vehicles and passed them on the right, entering the intersection on a green light but without noting that the vehicles to his left had stopped, or taking any particular precaution before entering the intersection…

[61] I have found as fact that Mr. Bahniwal proceeded through the intersection on a green light.  Accordingly, he had the right of way.  His was the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62] The question in the end is whether either Mr. Fichten or Mr. Bahniwal  or both, was in breach of the duty of care he owed to the plaintiff.  I take into account the Motor Vehicle Act provisions as informing the requisite standard of care (Ryan v. Victoria, [1999] 1 S.C.R. 201 at para. 29).

[63] It is clear that Mr. Fichten was negligent in making his left turn when it was unsafe to do so after the light had changed, and in particular by crossing the curb lane of southbound traffic without checking that it was free of oncoming vehicles.

[64] Turning to Mr. Bahniwal, what is the duty of a driver who enters an intersection in the circumstances that faced him?  He was in the curb lane, his view of the intersection was blocked by other vehicles, and those vehicles, having entered the intersection, had subsequently stopped…

[78] In my opinion, when the light facing Mr. Bahniwal turned green and the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal had the opportunity to recognize, and should have recognized, that something had caused them to stop.  His approach into the intersection should then have been tempered with caution, even though he had the light in his favour and had built up some momentum.  He did not take that approach but, instead, proceeded at the speed limit into the intersection.  His vehicle was in the dominant position, but he was not entitled to overlook a clear indication of a possible hazard in the fact that the vehicles to his left had stopped very soon after having begun to move.  The traffic was not backed up in the southbound lanes, as it was inRobinson v. Wong, and the timing of the vehicles stopping was inexplicable from his vantage point.  A careful driver would have reacted to the possibility that a left-turning vehicle, a pedestrian, or some other hazard was still in the intersection.

[79] I find that Mr. Bahniwal was in breach of his duty of care, and allocate liability 10% to him and 90% to Mr. Fichten.