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Tag: Mr. Justice McEwan

ICBC Not Allowed To Withdraw Admission of Fault Late in Litigation

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.
In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision.  He sued alleging the Defendants were at fault.  ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit.  As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“.  Based on this the Defendants sought to withdraw the admission of fault.  In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it.  In dismissing the application Mr. Justice McEwan provided the following reasons:

[13]         The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14]         ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15]         At this late stage both cars have been written off and are no longer available for inspection.

[16]         It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17]         The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18]         I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19]         The application is dismissed with costs to the plaintiff.

Failing to Wear Seatbelt Results in Increased Injuries and Decreased Damages

Written by admin on . Posted in Uncategorized. 57 Comments on Failing to Wear Seatbelt Results in Increased Injuries and Decreased Damages

Adding to this site’s archived cases addressing damages when a Plaintiff fails to wear a seatbelt, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, reducing a Plaintiff’s damages by 25% due to not wearing a seatbelt.
In this week’s case (Mosimann v. Guliker) the Plaintiff was involved in three collisions.  She was not at fault for any of them.  She suffered chronic injuries as a result of these crashes.  In one of the collisions she was not wearing a seat belt and her face hit the dashboard.  Although the Plaintiff hired an expert who testified that this did not contribute to her injuries Mr. Justice McEwan rejected this evidence and reduced the Plaintiff’s damages by 25%.  In reaching this conclusion the Court provided the following reasons:
[28]         Although Dr. Whetter was somehow under the impression that the plaintiff was wearing a seatbelt, it is clear that that was not the case. According to Craig Lukar, a professional engineer who gave an opinion to the court, however, the plaintiff would have suffered her facial injuries in any event, that is, even she had been wearing seatbelt.
[29]         Mr. Lukar’s analysis proceeded by using an exemplar vehicle (the one involved In the accident was no longer available) and placing the plaintiff in the passenger seat, demonstrating her position. It appears to be critical to the analysis that the plaintiff is short and the seat is too long for her to sit with her bottom all the way to the seatback without extending her legs. That is not evident in the third of the photos put in evidence, where the plaintiff appears to be seated comfortably back in the seat. Mr. Lukar suggests that the photograph is deceiving in that regard. The sixth photo shows the plaintiff apparently striking a part of the console, but from a position well advanced from the back of the seat. The dashboard in front of the passenger’s seat is significantly farther away than an instrument panel to the left of the seat, which is what Mr. Lukar suggests the plaintiff struck.
[30]         What the photographs did appear to show was that if the plaintiff was sitting with a properly adjusted lap belt, even allowing for some stretching or body compression that would allow the plaintiff to move forward, the arc of her upper body would fall short of hitting the dashboard. In making this observation, I am not substituting my own interpretation of the evidence for that of Mr. Lukar. I am simply saying that despite his qualifications, Mr. Lukar was not able to satisfy me that what he described displaced the inference the court might have drawn without assistance. His suggestions were simply unconvincing.
[31]         The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s evidence on the basis that an adverse inference could be drawn from the defendants’ failure to produce an expert report. That is not, in my view, a proper approach to opinion evidence. While it may be risky, counsel are entitled to rely on cross-examination and argument in relation to an expert witness as with any other witness. The defendants referred to Lakhani v. Samson, 1982 CarswellBC 2262, [1982] B.C.W.L.D. 1126, 70 B.C.L.R. 379 a decision of McEachern C.J.S.C. at para. 3:
I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.
[32]         Sometimes experts state the obvious, in which case they are superfluous. Sometimes they do not. On those occasions, it is up to the trier of fact to decide whether the inference the expert invited has the authoritative force of training or experience, or whether it is just not helpful. Having done my best to assess Mr. Lukar’s surprising conclusion – that failure to wear a lap belt would have made no difference in this face-hit-the-dashboard collision – I am simply unable to say that I am persuaded that that is the correct inference. I assess the plaintiff’s contributory negligence at 25%.
 

Video Surveillance Influences Chronic Soft Tissue Injury Trial

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009.  The Defendant admitted fault.  The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain.  The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived.  In reaching this decision the Court was influenced by video surveillance evidence.  In commenting on this Mr. Justice McEwan provided the following reasons:
[24]         The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
[25]         Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
[26]         Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
[27]         The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
[28]         The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
[35]         As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

"A Relatively Small Change May Have Significant Practical Consquences"

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registy, addressing non-pecuniary damages for injuries imposed on a plaintiff with significant pre-existing difficulties.
In last week’s case (Campbell v. Van Den Broek) the Plaintiff was injured in a 2010 collision.  The Defendant admitted fault.  The court was presented with competing and “not reconcilable” medical opinions about the extent of the collision related injuries.  Ultimately the Court accepted the collision caused some new injuries and exacerbated long standing pre-existing problems.  In assessing non-pecuniary damages at$90,000 Mr. Justice McEwan recognized that “for a person with serious limitations a relatively small change may have significant practical consequences.“.  The Court provided the following reasons:
[106]     The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell’s departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff’s situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.
[107]     The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences…
[111]     I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff’s unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff’s complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff’s damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.

More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Written by admin on . Posted in Civil Procedure, ICBC Fibromyalgia Cases, Uncategorized. 55 Comments on More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Earlier this year I highlighted judicial comments criticising the practice of not having a Plaintiff testify as the first witness in their personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, echoing these comments.
In this week’s case (Charles v. Dudley) the Plaintiff was injured in a 2008 collision.  She advanced a case alleging chronic pain and fibromyalgia.  The Court found that these claims were not proven on a balance of probabilities and ultimately awarded damages for soft tissue injuries which the Court found “resolved within a few months of the accident“.  In criticizing the Plaintiff’s delayed testimony Mr. Justice McEwan provided the following reasons:

[2] The trial proceeded in a fashion I would have described as unorthodox until recently, with the medical evidence called before the plaintiff testified. Counsel advised that they understand this to be the preferred way to run a personal injury case. I do not know where they get this idea. If persuasion of the trier of fact is the objective, the practice of leading medical opinion unattached to any factual foundation is the most awkward way to go about it. I have observed elsewhere that doctors do not subject their patients to a forensic examination. They generally assume that what the patient tells them is true and attempt to treat their symptoms. Their observations are of assistance to the trier of fact to the degree to which they reasonably conform to the facts that have been established after the plaintiff’s assertions have been tested. It is very difficult to assimilate medical evidence provisionally, that is, with no means of sorting what matters from what does not. A trier of fact obliged to hear a trial this way must go back over such evidence to put it in context. This Court is not alone in making this point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:

[27]     Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses. I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses. I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

[3] In any event, owing to gaps in the scheduling of the opinion witnesses, I persuaded counsel to call the plaintiff after the first medical witness had testified to fill out the court day. The case then proceeded with interruptions of the plaintiff’s evidence to accommodate the scheduled witnesses. While occasional scheduling issues may dictate such a course, plaintiffs in personal injury cases should generally be called first, if the point is to put across a coherent case.

Increased Earnings Are Not A Barrier to Diminished Earning Capacity Damages

Written by admin on . Posted in ICBC Wage Loss.

As the BC Court of Appeal recently confirmed, it is not ‘wage loss‘ that is compensible in a personal injury lawsuit but rather ‘diminished earning capacity‘.  With this in mind it is important to remember that damages for diminished capacity can be available in circumstances where there is no past wage loss and even in cases where a Plaintiff’s earnings increase following a collision.  Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, with such a result.
In this week’s case (Brechin v. Pickering) the Plaintiff was injured in a 2007 collision.  Liability was admitted focusing the trial on an assessment of damages.  The Plaintiff suffered various soft tissue injuries to his neck, knee and shoulder.  He worked as an electrician and took ‘very little time off‘.  In addition to this the Plaintiff’s earnings increased in the years following the collision as follows:
[52]  Mr. Bredin’s work history since 2002, shows the following pattern:
2002  $49,991
2003  $29,917
2004  $23,866
2005  $64,256
2006  $40,059
2007  $68,986
2008  $84,142
2009  $80,255
2010  $99,802
The Plaintiff’s injuries were expected to linger and although he could continue to work in his own occupation he was limited in tasks ‘at the heavier end of the scale‘.  As a result the Court awarded damages for diminished earning capacity.  In doing so Mr. Justice McEwan provided the following reasons:
[78]  What emerges from Ms. Mihalynuk’s evidence is a portrait of a person who is rather self-contained, proud of his work and inclined to do very little on his time off..
[80]  Mr. Brechin is now 42 years old in a setting in which he may retire in 15 to 20 years.  There are significant physical demands in the work some of the time, although as he continues to take leadership roles, he is likely to work more often at a reduced physical level of strain.  The primary concern for his future is whether he will be able to continue to retirement without interference from the effects of the accident…
[83]  I accept that work at the heavier end of the scale ought to be avoided, and that he could probably not stay in an occupation that demanded continuous heavy labour.  In the field in which he is employed, however, this does not appear to be expected.
[99]  The possibility of a future event is not specifically that Mr. Brechin will be laid off because of his condition, which is relatively unlikely, given that the medical evidence suggests that his condition is not disabling, but the more general vagaries of business that have made employment “for life”, once a common expectation, highly uncertain.  Should Mr. Brechin lose his position for such a reason he would be put back into a competitive environment where a fraction of the heaviest work would be lost to him…
[100] In this case, that involves a consideration of the medical evidence; Mr. Brechin’s age and likely working life; the relative stability of his employment at Fortis; the possibility that either Mr. Brechin’s condition, or larger workplace and market forces will change his situation, and the prospects he could have were that to happen.  It seems clear that Mr. Brechin could work but that to some extent this range of opportunities would be limited at the heavier end of the work.  The degree to which this is attributable to the accident diminishes over time as age and other factors come into play.  I think it would be an error to assume the same capacity for heavy work in a 50 year old, that one would find in someone significantly younger.  Doing the best I can to assess these factors, I fix $60,000 for future loss of income due to the diminishment of his capacity viewed as a capital asset.  I have done so, bearing in mind his present income earning capacity, which is an improvement over the years before the accident, but that the injuries suffered in the accident may reduce, somewhat, his broader opportunities to work as an electrician.

No Liability For Motorist Struck While Stopped on Painted Stop Line

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering sections 129 and 186 of the Motor Vehicle Act and liability for a crash based on the positioning of a stopped vehicle at an intersection.
In this week’s case (Eissfeldt (Guardian ad litem of) v. Eissfeldt) the Defendant was stopped “on..the painted stop line” in a desginated left hand turn lane at an intersection.

An intersection collision occurred between other motorists propelling one of the vehicles into the stopped Defendant’s truck.  The Plaintiff, a passenger in one of the other vehicles, sued the drivers of all three vehicles arguing all were to blame.  The Plaintiff argued that the Defendant truck driver was negligent in improperly stopping his vehicle “on rather than behind the painted stop line” arguing that this was in breach of section 186 of the Motor Vehicle Act.
Mr. Justice McEwan disagreed and dismissed the claim against the motorist.  In doing so the Court found that section 186 was limited only to stop sign controlled intersections (as opposed to traffic light controlled intersections) but in any event the Defendant’s actions were not negligent.  The Court provided the following reasons:

[18] …. Section 186 applies to intersections controlled by stop signs, not traffic control signals. The duty outlined in s. 129 is to stop before the marked crosswalk. There is no question that Mr. Brown did so, as can be seen in the photographs. There is no suggestion in the Act, and none of the case law supports the notion that where stop lines are painted in the left turn lane ahead of a crosswalk, there is a duty to stopbefore rather than on them, as long as the vehicle does not enter the marked crosswalk. In this regard Mr. Brown’s acknowledgment that he intended to stop before the line may mark a slight deviation from the standard he meant to achieve, but it is not evidence that obliges the court to impose a higher standard on Mr. Brown than that set out in the section. It is not at all clear that the stop lines are anything more than guides to ensure that vehicles do not encroach the crosswalk and the intersection, which are the duties imposed by the section.

[19] As the cases show, statutory duties have been superimposed on the common law duty of care and may create a modified standard in the circumstances to which they pertain. The context remains important, however. The concern of a motor vehicle operator at an intersection controlled by a traffic signal is for pedestrians and traffic lawfully crossing or turning in the intersection. The assessment of risk begins with the premise that one may rely on other drivers to obey the rules of the road, subject to the qualifications set out in the cases. (See paras. 8 and 9 herein).

[20] The occurrence of a random event precipitated by the failure of others to obey the rules of the road (I do not know which of the other defendants this may be or to what degree they may share liability), is not the sort of harm that could be described as foreseeable by Mr. Brown. In the circumstances it is obvious that he was in no position to react as the collision transpired.

[21] There is simply no basis, in my view, for a finding that Mr. Brown failed in his statutory duty, which was to avoid the crosswalk and the intersection at the red light. That duty did not extend to anticipating the possibility that a vehicle might suddenly lose control as a result of a collision and veer into his path, obliging him to guess where to place his vehicle in order to avoid such a contingency.

[22] Giving full consideration to the fact that the court must be very careful not to permit litigating in slices and the risk of embarrassing consequences as a result of ruling on an incomplete view of the case, I consider this to be an example of a circumstance where it is appropriate to apply Rule 9-7(15). Mr. Brown was not in breach of the relevant statutory duty found in s. 129. Section 186 of the Motor Vehicle Act does not apply. Whether or not the impact with his vehicle contributed in any respect to the plaintiff’s claims, Mr. Brown’s vehicle was not where it was as a result of any negligence on his part.

"Some Things Cannot Be For Sale" – BC Supreme Court Benchslaps Attorney General

Written by admin on . Posted in Tort Reform, Uncategorized. 55 Comments on "Some Things Cannot Be For Sale" – BC Supreme Court Benchslaps Attorney General


(UPDATE  February 15, 2013 – The decision discussed below was overturned by the BC Court of Appeal in reasons for judgement released today)
I recently highlighted on-going friction between the BC Government and our Judiciary.  In the latest chapter of this story, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, striking down Court “hearing fees” and providing strong criticism to the Government with respect to their constitutional duty to properly maintain Superior Courts.
Included in Mr. Justice McEwan’s robust reasons for judgement (Vilardell v. Dunham) was the following constitutional lesson to Government:
(1)  Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).
(2)  The mandate of the Province under s. 92(14) is to maintain, that is, to provide adequately for, the courts.  It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy.  This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government.  As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.
(3)  Hearing fees are a barrier to access imposed by one branch of government over another.  For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy.  The court cannot fulfil its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents.  In this respect, the AGBC’s position that so long as the government does not interfere with he cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place.  So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort”.  Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek a authoritative determination of a right or legal position according to law.  Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law.
(4)  The AGBC’s anxious concern for trial efficiency is misplaced.  Courts of inherent jurisdiciton are equipped with all the tools they need to manage trials and to deter time wasting, and they use them.  It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees…
[426]…The office of the Attorney General also fulfils an essential role in the protection of the public interest, which includes concern for the rights of disadvantaged and the vulnerable.
[427] The Attorney General has a further role to play in explaining the function of the courts to government.  The preservation of the core values of our Constitution including inclusiveness, equality and citizen participation are entrusted to the Attorney General as much as they are to the Courts…It is therefore a matter of serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of these fundamental aspects of our system of government…
[429]  …The position taken by the AGBC in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.
[431]  The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees.  Some things cannot be for sale.

Criminal Guilty Plea Strips Defendant of Civil Liability Denial

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized. 47 Comments on Criminal Guilty Plea Strips Defendant of Civil Liability Denial


Typically it is an abuse of process for an individual to plead guilty to criminal charges and to then deny liability in a subsequent civil lawsuit arising from the same incident.  The BC Supreme Court Rules allow judges to strike pleadings denying previous admissions as an ‘abuse of process‘.  Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, demonstrating such a result.
In this week’s case (Plishka-Humphries (Guardian ad litem of) v. Bolen) the Plaintiff was assaulted and battered by the Defendant Bolen.  The Defendant plead guilty to aggravated assault as a result of the incident.  In a subsequent civil lawsuit the Defendant denied liability.  The Plaintiff brought an application for summary judgement which was granted.  In finding the Defendant civilly liable for the incident Mr. Justice McEwan provided the following reasons:
[11] The present case differs from Franco in that the defendant is not asserting a defence that parallels the position he took before the criminal court. In such circumstances a defendant’s position at least has the virtue of consistency. Here, the defendant seeks to give an exculpatory version of facts he has previously admitted…

[13] Here, however, at the sentencing proceeding, the defendant admitted the facts that the plaintiff alleges in the civil case. He now wishes to contradict those admissions. This is not a case of a careless plea, or a plea to a vague and uncertain set of facts.  Nor is it a case where there was a lack of incentive to dispute a minor charge. It is also not a case of new evidence. There was no hint or suggestion of a threat from the plaintiff, at the sentencing proceeding, let alone facts that could be characterized as a form of self-defence. There was, rather, a submission that he was taking responsibility and acknowledging the harm he had done. In the context of that hearing it appears that this was offered as a kind of mitigation.

[14] The transcript also contradicts the defendant’s suggestion that he pled guilty on his lawyer’s advice and not because he considered himself guilty. He stood in court while his lawyer represented variously that he was “deeply remorseful”, “wants to plead guilty”, “wants to announce his guilt” … “recognizes this,” that “[h]is reaction was wrong” or that he wanted to save the young man from going to trial, and “have some lawyer probing on–about ball bearings.”

[15] The material the defendant has presented does not raise a genuine issue to be tried. The Certificate of Conviction tendered in this case is roughly equivalent to proof of a formal admission. There is nothing arising from the circumstances in which the guilty plea was entered that casts doubt upon the defendant’s intention at the time, or his appreciation of what he was doing. There is no ambiguity in the facts that he admitted. The explanation he offers for sitting through the hearing on September 21st, 2005 while the case was, from his present perspective, grossly mischaracterized, is thoroughly unconvincing…

[17] There will therefore be judgment for the plaintiff on the issue of liability and a referral to the trial list on the issue of quantum.

For more on this topic you can click here to review a recent case where a careless driving guilty plea was a barrier to a civil denial of liability following a motor vehicle collision.

Pedestrians, Crosswalks and the Duty To Yield The Right of Way

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


While Pedestrians are allowed to cross streets in a crosswalk the right is not absolute.  One limitation in section 179 of the BC Motor Vehicle Act addresses pedestrians walking in front of a moving vehicle “that is so close it is impracticable for the driver to yield the right of way“.  In these circumstances a Pedestrian could be faulted for a resulting collision even if they would otherwise have the right of way.  Reasons for judgement were released yesterday by the BC Supreme Court, Nelson Registry, considering this obligation in a personal injury lawsuit.
In yesterday’s case (Cairney v. Miller) the Plaintiff was injured in a 2009 collision.  The Plaintiff was crossing in a marked cross-walk in Nelson, BC, when he was struck by the Defendant.  As the Defendant was driving she “slowed down to look for a parking spot when she suddenly felt a bump on the left side of her car.”  The Defendant failed to see the Plaintiff and the Court ultimately found the Defendant at fault.
The Defendant went on to argue that the Plaintiff should be held partially at fault because he should have realized she was not yielding the right of way.  Mr. Justice McEwan rejected this argument and provided the following reasons:
[25] Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.

[26] Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.

[27] This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.

[28] I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way (See Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at para. 23 above).

[29] The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.

[30] Accordingly, I find the defendant fully liable for the collision.