Tag: rear end collisions

BC Court of Appeal Dismisses Rear End Collision Negligence Allegations

While there are times when a vehicle that is rear-ended by another can be found at fault for the collision in the usual course of things the rear driver bears full responsibility.  Reasons for judgement were published today by the BC Court of Appeal upholding such a finding.

In today’s case (Bains v. Chatakanonda) the Defendant stopped to execute a left hand turn when the Plaintiff rear ended his vehicle.  The Plaintiff’s claim was dismissed at trial with the judge finding her fully at fault for the crash.  On appeal the Plaintiff argued the Defendant should looked in his rear view mirror prior to stopping for his turn and failing to do so was negligent.  In rejecting this argument and upholding the claim dismissal the BC Court of Appeal provided the following reasons:

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Rear-Ended Motorist Found Partly At Fault For Collision

As previously discussed, occasionally a motorist who is rear-ended by another can be found liable for the collision.  Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, with such a result.

In the recent case (Bay v. Woollard) the Plaintiff struck a vehicle that had, moments prior, struck another vehicle.  The middle motorist in the three car pile up was found 25% at fault for the second collision despite being rear-ended.  The primary reason for this finding was the Defendant’s failing to brake before the first crash thus depriving the Plaintiff of full notice of the imminent hazard.  In reaching a 75/25 split for the impact Mr. Justice Harvey provided the following reasons:

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Driver 25% At Fault For Being Rear Ended Due to "Sudden Stop"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.
In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.

Motorist Found Fully At Fault For Crash Despite Being Rear-Ended

Although it is the exception rather than the norm, when a motorist is rear-ended they can sometimes be found partly if not fully at fault for a collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, with such an outcome.
In today’s case (Bingul v. Youngson) the Plaintiff was rear-ended by a dump-truck driven by the Defendant.  The parties had different versions of how the collision occurred but the Court noted concerns with the Plaintiff’s credibility and accepted the Defendant’s testimony.  The court found that the Plaintiff abruptly moved into the lane of traffic occupied by the Defendant when it was unsafe to do so, namely when he was stopping for an intersection up ahead.  In finding the Plaintiff fully at fault and dismissing the claim Madam Justice Baker provided the following reasons:

[53]         Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident.  I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.

[54]         I am unable to conclude that anything done or not done by Mr. Youngson constituted negligence that caused or contributed to the collision.  Mr. Youngson testified that as he was approaching the intersection with Clark Drive he anticipated having to bring his vehicle to a stop for a red light.  He braked and down-shifted and reduced his speed to 30 to 35 kph as he approached the intersection.  He testified that had Mr. Bingul not suddenly moved into his lane ahead of him, he would have able to bring his vehicle to a complete stop at or before the stop line, but that Mr. Bingul’s move reduced his stopping distance to an unsafe degree.

[55]         Mr. Bingul was aware that there was a large and heavy vehicle in the lane.  I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

[56]         I therefore dismiss the plaintiff’s claims against all defendants.

Driver Found 60% At Fault for Rear End Crash After Failing to Activate Hazard Lights

The BC Court of Appeal released reasons for judgement today upholding a trial judgement finding a motorist who was rear-ended 60% liable for the collision for failing to have their hazard lights activated prior to the crash.
In today’s case (Langille v. Marchant) the Plaintiff was involved in a crash which left her vehicle stopped in the middle lane of a bridge.  A few minutes later her vehicle was rear ended.  The BC Court of Appeal found it was not unreasonable for the Plaintiff to have not moved her vehicle prior to the second collision, but that the failure of her to activate her hazard lights was negligent and upheld the trial finding placing 60% of the blame on this omission.
In reaching this conclusion the Court of Appeal provided the following reasons:

[19]         Activating emergency flashers is a step Ms. Langille certainly could have taken. It was open to the trial judge to find that it was negligent on the part of Ms. Langille to obtain particulars from the other driver before ensuring the safety of the location of the accident, or at least improving the situation for oncoming drivers by activating her flashers. It was also open to the trial judge to find doing so would have reduced the likelihood of impact or the severity of the impact that occurred. That is the logical implication of the finding that Ms. Marchant’s late recognition of the hazard caused or contributed to the accident. The activation of flashers would have made Ms. Langille’s car more visible and made it harder for Ms. Marchant to fail to notice its presence or note earlier that it was not moving, and to take earlier evasive measures.

[20]         As this Court noted in Hansen v. Sulyma, 2013 BCCA 349, when considering the trial judge’s assessment of causation in a similar case:

[29]      I do not read the trial judge in this case… as having found that this was one of those exceptional cases in which the “but for” test is to be “relaxed” by recourse to a “material contribution to risk” test. Rather, the trial judge was using “contribute to” in the traditional sense and in my respectful opinion, did not err in doing so. Certainly on a “robust and pragmatic approach”, it was a reasonable conclusion that if Mr. Sulyma had activated his hazard lights, Mr. Leprieur would likely have been alerted to the presence of the Honda and would have had adequate, or more, reaction time in which to decelerate. Even if deceleration would not have totally avoided the impact but would only have reduced Ms. Hansen’s injuries, the “but for” test was still met.

[21]         I would not disturb the trial judge’s findings that it was negligent to turn off the car and leave only its running lights on in the middle of a busy bridge at night in a location where one would not expect vehicles to be stopped, nor would I disturb the finding that the negligence contributed to the accident.

[22]         The appellant argues that in apportioning liability the trial judge failed to recognize that the primary responsibility for avoiding rear end collisions rests with the driver approaching from the rear. In my view, it is clear from her reasons for judgment that the trial judge recognized that rule; she found the defendant negligent and liable, before going on, as she was required to do, to consider the plaintiff’s conduct. Having found the plaintiff contributorily negligent she was required to address the relative degrees of blameworthiness of the parties.

[23]         When she weighed the parties’ relative degrees of blameworthiness the trial judge was clearly of the view that the plaintiff’s conduct in failing to protect herself and other drivers after the first collision was more blameworthy than the defendant’s conduct. The trial judge found the defendant to have been momentarily inattentive in the face of an imminent, and relatively difficult to discern, peril. The plaintiff, on the other hand, attended to inspection of damage and attempted to exchange information with Mr. Masahiro before taking a simple step to protect herself and others. The trial judge properly treated the failure to illuminate flashers and move the vehicle collectively as “the central allegation” made against the plaintiff. ln my view, this central complaint, that the plaintiff failed to take any step to reduce the risk to drivers approaching what the trial judge found to be an unexpected hazard, remains, even if the plaintiff’s failure to move her vehicle is not blameworthy.

Known Poor Road Conditions Defeat Inevitable Accident Defence

As previously discussed, although a driver can sometimes be faultless after rear-ending another vehicle, such a result is rare.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a motorist trying to escape blame following a rear end collision.
In last week’s case (Vo v. Michl) the plaintiff pulled onto Kingsway from a parked position and proceeded to to the left hand lane.  At the same time the Defendant was proceeding in the same direction and saw the Plaintiff pull into his lane and brake ‘some four or five seconds’ before the vehicles impacted.  The Defendant argued that he could not avoid the collision due to icy  road conditions.  Mr. Justice Savage rejected this argument finding the Defendant was aware of the poor road conditions well prior to the impact and should have adjusted his driving accordingly.  In finding the Defendant fully liable for the impact the Court provided the following reasons:
[16]         I accept that Mr. Vo had his left turn signal on at that point which was his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes but because of the road conditions did not slow appreciably before impact. The road conditions were apparent to him as he had been driving in those conditions. He knew it was icy. This is not a case, for example, of their being a patch of “black ice” in otherwise deceptively benign conditions, as was the case in Borthwick v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.).
[17]         Mr. Michl was negligent in driving too quickly for the road conditions in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in turning onto Kingsway were sudden and precipitous, as in some of the other cases referenced by the defence.
[18]         The defendant raises s. 151(a), and 170 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations, B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the position of the westbound traffic before he made this turn from the parked position onto Kingsway, and the westbound vehicles were well back at that point. The defence has said all that could be said to support their position, however, in my opinion Mr. Michl is 100% to blame for the accident.

The Important Role of Independent Witnesses in Motor Vehicle Collision Lawsuits


When a crash happens its not unusual for the parties involved to have different versions of who is to blame.  When this occurs determining who will be found at fault in a subsequent lawsuit can be a difficult task.  When there are impartial and independent witnesses, however, the task of picking between differing versions can become easier.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Hough v. Dyck) the Parties were involved in a 2007 motor vehicle collision.  The Plaintiff’s pick up truck was rear-ended by the Defendant’s car.  The Plaintiff sued alleging the Defendant was at fault for driving carelessly.  The Defendant disagreed arguing that the Plaintiff cut in front of him and “abruptly stopped” leaving him without adequate time and space to safely bring his vehicle to a halt.
An independent witness to the collision came forward and provided the Court with her account as to what occurred.  She verified the Defendant’s evidence that the Plaintiff cut the Defendant off and then slammed on his brakes.  Ultimately the Court preferred the Defendant’s version of events and dismissed the lawsuit.  In doing so Madam Justice Baker provided the following comments:
[18] (The independent witness) Ms. Maynes testified that near the bottom of the hill, as traffic was approaching 92nd Avenue, she saw Mr. Hough’s vehicle pull across the double solid centre lines into the northbound lane, pass Mr. Dyck’s vehicle, swerve back into the southbound lane and then slam on its brakes.  She saw the brake lights of Mr. Dyck’s vehicle come on and saw the collision.  She said it was a minor impact, because of the relatively slow speed of travel due to heavy traffic….

[21]        I find Mr. Dyck to be a credible witness and I accept his testimony.  I consider Mr. Hough’s testimony to be inaccurate and unreliable.   The testimony of Ms. Maynes supports Mr. Dyck’s testimony that Mr. Hough caused the accident by first passing Mr. Dyck’s vehicle when passing was prohibited, as evidenced by a solid double centre line and then abruptly pulling back into Mr. Dyck’s lane and equally abruptly slamming on his brakes, for no good reason, and when it was foreseeable that a collision would result.  In doing so, he was negligent, and his negligence was the sole cause of the accident.

[22]        I am not persuaded that anything done or omitted to be done by Mr. Dyck caused or contributed to the accident.  He was cut off when Mr. Hough pulled back into his lane of travel and then stopped abruptly.

[23]        It follows that the action must be dismissed.  Mr. Dyck shall have his costs, payable by Mr. Hough, on Scale B.

The lesson motorist should take from this case is that independent witnesses can be vital to the success or failure of a personal injury lawsuit where fault is contested.  Following a collision, if possible, it is a good idea to take down the names and contact information of witnesses to the event prior to leaving the scene of the crash.

Rear-Ended Motorist Found 75% at Fault for Stopping for "No Apparent Reason"


As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault.  There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC.  Her vehicle was rear-ended by a truck driven by the Defendant.  She sued for damages and the Court was asked to decide who was at fault.
The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant.  Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash.  In coming to this finding the Court provided the following reasons:

[44]         I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45]         Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46]         In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

The Crash Was My Fault, on Second Thought…


After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

How Do BC Courts Determine Fault for a Crash?: The "But For" Test


When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.
BC Courts must, in most circumstances, use the “but for” test.  In the most basic terms, a driver has to exhibit some level of carelessness.  From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“.  If the answer is yes then the careless party must be found, at least partially, to blame for the accident.  This week the BC Court of Appeal discussed this area of law.
In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane.  It was dark and the Defendant remained stopped for a period of time.  The speed limit was 90 kilometers per hour.  He did not activate his brake lights or emergency flashers.  The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.
The Plaintiff sued for damages.  His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash.  (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded.  The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault.  In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:

[16]         I now turn to the legal test to establish causation.  In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test.  The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  At para. 21 of Resurfice, the Chief Justice said:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

[17]         The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.

[18]         In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms.

[19]         The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:

“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence.  It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event.  As I have explained, these implications are not correct – every event has multiple historical factual causes.  The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36.  It suggests a limit on the scope of liability.  There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy.  It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112, [1990] 3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.

[20]         The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test.  The judge must have employed a last clear chance analysis when he used the term “proximate”.  That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him.  The judge found that the defendant was negligent.  Indeed he could hardly have found otherwise.  The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.

[21]         The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati, [1996] 3 S.C.R. 458).  There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability.  In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury.  The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”.  I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.

[22]         In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent.  That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23).  The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis.  If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.

[23]         This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307, [1997] B.C.J. No. 350).  Normally a sudden stop does not create an unreasonable risk of harm.  However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.

[24]         I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.

If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”.  From there you need to ask “but for that wrongful act, the injury would not have occurred?“.  If the answer is yes then you have a theory on which to advance your case.

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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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