Update November 28, 2013 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today
I have previously discussed the ‘agony of collision’ doctrine which can shield a motorist from liability following a collision if they are faced with a sudden and unexpected hazard not of their making. Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, demonstrating this doctrine in action.
In last week’s case (Brook v. Tod Estate) the Defendant Goodrick changed lanes when it was unsafe to do so. Her lane change resulted in a potential collision with a vehicle driven by the Defendant Tod who swerved away into the oncoming lane of traffic. The decision proved fatal with his vehicle striking the on-coming Plaintiff’s vehicle in a head-on collision. The Defendant Tod died in the crash and the Plaintiff sustained injuries.
The Plaintiff sued both Defendants. The Court found the Defendant Goodrick was negligent in making an unsafe lane change. The Defendant Tod, however, was found faultless for the “agonizing choice made…in the last two or three seconds of his life as he attempted to avoid an accident“. Mr. Justice Affleck provided the following reasons addressing ‘agony of collision’:
 Mr. Tod’s counsel stresses the law in relation to the agony of collision which would exonerate Mr. Tod of mistakes which he made in an emergency situation. In Van Zanten v. Bruhs, 1991 CanLII 1023 (BCSC), Mr. Justice A.G. Mackinnon referred to Carswell’s Manual of Motor Vehicle Law, Volume III, 3rd edition, at page 22, where there is a discussion of agony of collision. These words are found:
In a number of cases concerning what is commonly called ‘agony of the collision,’ it has been pointed out that a driver acting in an emergency created by another vehicle or by some extraneous fact cannot be expected to exercise nice judgment and prompt decision, and mere errors of judgment in such circumstances may often be excusable … Where an emergency arises, it is not necessary for a driver to possess extraordinary skill, presence of mind, poise or self-control, and his failure to act as an ordinary person in an emergency is not held to be negligence. He is not necessarily required to adopt the most prudent course and is entitled to a reasonable time, depending on the circumstances, to exercise his judgment as to what steps should be taken to avoid a collision [citations ommitted.]
 Counsel has submitted that it was Mr. Brook who faced the agony of collision and yet his evasive efforts, although fruitless, have not been characterized as negligence. On the other hand it is argued Mr. Tod had choices available to him and his circumstances cannot be properly characterized as the agony of collision. Notwithstanding the able arguments of Ms. Goodrick’s counsel, I do not agree that Mr. Tod did not face an agonizing choice with no time to make a considered decision. I have found Ms. Goodrick’s vehicle intruded into the fast lane already occupied by Mr. Tod’s vehicle. She began her lane change and simultaneously saw Mr. Tod’s vehicle overlapping hers by several feet. It was not realistic to expect Mr. Tod to make an instantaneous decision to accept a collision, no matter how minor it might in retrospect have been, with Ms. Goodrick’s vehicle. In the negligible time available to Mr. Tod, he cannot have been expected to weigh that fine calculation. It is true he could have braked. One difficulty with that proposition is that it cannot be now known if he both braked and swerved. What we do know from the evidence of Mr. Leggett is that Mr. Tod was travelling at a safe speed. He did not create the danger that caused him to react in the agony of the moment. If there had been a collision between his car and Ms. Goodrick’s car, we cannot know if one or both of those cars would have lost control leading to this accident.
 Mr. Garner for the plaintiff submits Mr. Tod had a higher standard of care imposed on him because Ms. Goodrick’s car had an “N” plate on the back indicating she was a novice driver. I doubt if the presence of that letter on a car changes the standard of care of other drivers, but in any event, Mr. Tod was driving with reasonable care before he was cut off by Ms. Goodrick’s failure to see his car before beginning her lane change. It is not open to this Court to criticize the agonizing choice made by Mr. Tod in the last two or three seconds of his life as he attempted to avoid an accident which I find was caused solely by the negligence of the defendant, Ms. Goodrick.
Tag: Mr. Justice Affleck
Update November 28, 2013 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today
Reasons for judgement were release this week by the BC Supreme Court, Nanaimo Registry, dismissing a lawsuit against the Province of BC for injuries sustained by an inmate struck with an axe, allegedly by another inmate.
In this week’s case (Foulds v. British Columbia) the Plaintiff was incarcerated in the Nanaimo Regional Correctional Centre. In the course of his incarceration he was placed on a “farm gang” along with other inmates. The Plaintiff and another inmate were tasked with clearing brush and stacking wood. They were provided with axes. The Plaintiff and the other inmate decided to chop down a tree (a job that he was not tasked with). During this time the Plaintiff “was struck on his left knee with an axe“. There was some inconsistency about whether the Plaintiff struck himself or was struck by the other inmate.
Mr. Justice Affleck held that even if the other inmate struck the Plaintiff the Province should not be liable. In dismissing the claim the Court provided the following reasons:
 The standard of care imposed on the Province in managing the NRCC farm inmates cannot be one of continuous supervision of every inmate at all times. I have no basis to conclude that the system of supervision in place at the farm on May 14, 1997 was deficient and failed to meet the appropriate standard of care. Nor can I conclude that Mr. Matthews’ decision to permit the plaintiff and Cameron the use of an axe to clear brush and to split wood fell below the standard of care. Both the plaintiff and Cameron had been assigned various tasks by Mr. Gooding and Mr. Matthews had no reason to change those assignments. I do not fault Mr. Matthews for permitting the plaintiff and Cameron to take an axe nor do I fault Mr. Matthews for not escorting the plaintiff and Cameron to the worksite in the wooded area.
 In my opinion, the absence of direct supervision of the plaintiff and Cameron was not the cause of the injury. The injury was caused or at least occasioned by the decision of the plaintiff and Cameron to use the axe to chop a tree, a task to which they had not been assigned.
 There appears to have been several reasons for the NRCC to have a farm. One important reason was for those inmates who were permitted to work on the farm to enjoy a level of independence not permitted to other inmates. That independence would be meaningless if there was continuous supervision. Nevertheless if there was not constant supervision the risk of injury associated with the use of tools of various kinds was increased. That risk had to be tolerated if independence to any degree was to be achieved. The standard of care imposed on the Province must be viewed in that light. I cannot find the Province was negligent.
 The action is dismissed…
Adding to this site’s archived posts of BC non-pecuniary damage awards for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries and an impingement syndrome.
In last week’s case (Sandhar v. Rolston) the Plaintiff was injured in a 2004 rear-end collision. Fault was admitted by the offending driver. The trial focused on the value of the Plaintiff’s claim. The Plaintiff suffered a soft tissue injury to her neck and an impingement syndrome to her right shoulder. The symptoms largely recovered by 2007 following a cortisone injection although she had some lingering symptoms.
Complicating matters, the Plaintiff injured her right shoulder shovelling snow in 2008. She injured her rotator cuff. Mr. Justice Affleck found this was a ‘divisible injury‘ and assessed damages accordingly. In awarding $60,000 for non-pecuniary damages the Court provided the following reasons:
 In Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, the court observed that decisions of the court on the question of an intervening cause, “say that if an injured party acts unreasonably and causes him or herself further injury, the tortfeasor is not responsible for any injuries suffered as a result of the second injury.” It was not reasonable for the plaintiff to have shovelled snow in the fashion that she did in 2008. Even if the injuries from that activity were indivisible, I would not award damages for them.
 That does not mean compensation for the injuries from the car accident is cut off from the date the plaintiff shovelled snow. If the car accident injuries continued to have their effects after December 2008, the defendant remains liable to compensate the plaintiff for those effects. See Dudek v. Li, 2000 BCCA 321.
 There has been no mechanical derangement of the plaintiff’s neck and shoulder caused by the car accident. I accept Dr. Leith’s view that the plaintiff’s injuries were soft tissue injuries of the “whiplash” variety. The evidence is that the whiplash was properly characterized as grade one. That is the least damaging form of a whiplash injury. That does not mean the injuries were insignificant. On the contrary, they caused pain and measure of disability from May 2004 until the cortisone injection in April 2007. I accept that slight pain returned later that year and through 2008. Despite the plaintiff’s ability to carry on with work, the plaintiff found it to be uncomfortable to do so. I accept that even if she had not suffered a new injury to her shoulder in December 2008, the pre-existing problems would have lingered even beyond 2008 for perhaps about two years.
 I have been provided by the parties with numerous authorities on the assessment of non-pecuniary damages in similar cases. As is usual, none of the plaintiffs in those cases had injuries the same as the plaintiff before me. I take into account the long course of difficulties experienced by the plaintiff which would not have been suffered but for the car accident and that the car accident injuries would have lingered for about six years while gradually diminishing. The three years before the plaintiff had the cortisone injection were difficult, but she did her best to carry on with her employment and with her housekeeping with considerable discomfort. She lost much of her enjoyment of life in those years. She returned to her pre-accident condition after April 2007 and had marked relief of pain for 18 months, but not complete resolution. The plaintiff’s high expectations of herself in her employment, housekeeping and recreational activities, increased the effect of the car accident injuries, but the defendant must accept the plaintiff as she is.
 I assess non-pecuniary damages at $60,000…
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with an interesting issue – can a Court infer consent to operate when a commercial vehicle is involved in a ‘hit and run’ collision?
In last week’s case (Perret v. John Doe) the Plaintiff was injured in a 2005 collision. She was run off the road by a U-Haul truck which was driving the wrong way on the highway. The driver of the U-Haul did not remain at the scene of the accident. The Plaintiff sued U-Haul arguing they are vicariously liable for the careless driver’s deeds under s. 86 of the Motor Vehicle Act. She also sued ICBC under the unidentified motorist provisions of the Insurance (Vehicle) Act.
ICBC brought an application arguing U-Haul is at fault and that they are liable for the crash because anyone driving the vehicle likely had their consent to do so. U-Haul opposed arguing ICBC should pay for the Plaintiff’s damages as this was an unidentified motorist claim and consent could not be proven.
The Court was asked to determine “whether ICBC or…U-Haul Co. is the proper Defendant” as a special case under Rule 9-3. Ultimately the Court held that U-Haul was the proper defendant finding that it was reasonable to infer, on a balance of probabilities, that the driver had the company’s consent to drive. In reaching this conclusion the Court made the following findings:
 The following agreed facts about the accident of May 12, 2005, could support a finding of consent:
1) The truck which caused the plaintiff to lose control of her vehicle was owned by U-Haul;
2) U-Haul rents vehicles to customers in British Columbia;
3) U-Haul consents to drivers, other than the person with whom it contracted, to drive the vehicle if they are at least 18 years of age and have a driver’s licence;
4) Approximately 135 U-Haul vehicles were rented in British Columbia on May 12, 2005;
5) There were 114 vehicles owned by U-Haul Canada that were previously stolen and unrecovered on May 12, 2005, of which 15 had been stolen in British Columbia; and
6) The driver of the U-Haul that caused the accident was probably a man in his 50s.
 What I derive from the above agreed facts is that:
1) It is probable that the U-Haul vehicle was not stolen. That suggests it was driven, either by the person who initially rented it, or by someone who that person agreed could drive it, and who was at least 18 years of age. U-Haul accepts that if either is true there is consent, assuming the driver had a driver’s licence;
2) I take notice that a driver in British Columbia must have a driver’s licence and therefore I conclude it is probable this driver had one.
 There are other facts which may be inconsistent with consent. They are the following:
1) The driver was clearly lost;
2) The driver may have been uncertain of his ultimate destination;
3) The driver did not stop at the time of the accident.
 Those facts may be inconsistent with consent because:
1) It would be expected that a person who rents a U-Haul vehicle will have done so for a particular purpose and will have known his destination and the route he intended to follow;
2) A driver who leaves the scene of an accident may do so because he knew he was driving a stolen vehicle.
 However, there are numerous other possible reasons for failing to remain at an accident scene. One could be that the driver did not know he had caused an accident. There was no contact between the vehicles involved in the accident on May 12, 2005. Another could be that the driver knew he had caused an accident and did not wish to face the consequences. There may be a multitude of other reasons peculiar to this driver which caused him to leave the scene of the accident. In my view, the fact the driver left the scene of the accident does not assist in determining the issue of consent.
 When considering the circumstances of the accident of May 12, 2005, there is obviously no certainty when attempting to reach a conclusion that the U-Haul vehicle was driven by a person who had consent. However, the law does not require certainty. It does require that I draw a reasonable inference and do not rely on conjecture. The Court of Appeal in Lee v. Jacobson,  B.C.J. No. 2459, has described Caswell v. Powell Duffryn Associated Colleries Ltd.,  A.C. 152 (H.L.) [Caswell], as the leading case making that distinction. In Caswell, at 169-70, Lord Wright observed:
My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
 I conclude I can safely draw an inference that it is more likely than not that the driver had consent. I therefore answer question 2 in the affirmative.
 ICBC is entitled to its costs against U-Haul, if requested.