Tag: rear end car crash

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.

Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)

General damages – non-pecuniary

$200,000.00

(ii)

Past loss of income

$171,250.00

(iii)

Future loss of income earning capacity

$400,000.00

(iv)

Loss of opportunity

$10,000.00

(v)

Special damages

$26,955.75

(vi)

Costs of future care

$77,449.00

(vii)

Management and Tax Gross up

(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

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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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