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Duties of Motorists Involved in Single Vehicle Accidents Discussed

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Reasons for judgement were released today by the BC Supreme Court discussing whether a motorist has to stay at the scene of a single vehicle accident in British Columbia.
In today’s case (ICBC v. Pariah Productions Inc.) the Defendant vehicle was involved in a single vehicle collision when its driver struck the wall of a Wendy’s restaurant.   The motorist drove home after the collision without notifying anyone of what happened.
ICBC paid out the property damage claim and then sued the Defendant for their money back claiming that the motorist was in breach of an obligation to remain at the scene of the accident.  The trial judge disagreed and dismissed ICBC’s claim.  ICBC appealed and today’s case dealt with this.
Section 68(1)(a) of the BC Motor Vehicle Act in part requires “the driver or operator or any other person in charge of a vehicle that is, directly or indirectly, involved in an accident on a highway to remain at or immediately return to the scene of the accident“.
ICBC argued that the Defendant was in breach of this obligation.  The trial judge disagreed.  On Appeal, Mr. Justice Silverman found that “the trial judge did correctly decided this issue…I endorse the correctness of his analysis in paragraphs 16-19 of this Reasons for Judgement.”
The Trial Judge’s reasons which were upheld were as follows:

[16]      It is to be questioned whether or not s. 68(1) and then 68(3) are sections that deal with the same type of accident or whether they are distinctly two different types of accidents. Section 68(3) provides the duty of a driver in an accident is as follows:…

[17]      It is my view that 68(1) and 68(3) of the Motor Vehicle Act involve two different situations: … Sixty-eight (1) involves the situation where there is a car accident involving another vehicle and there is injury or loss to another person, be it the other driver or someone else. Section 68(3) however, involves a situation where there is only a single-vehicle accident, no persons are injured but there is damage to property only. So, the two sections are quite distinct from one another and the obligations on the driver involved in a 68(1) situation or a 68(3) situation are quite different.

[18] For 68(1) of the Motor Vehicle Act to apply in this case,it is my view that there had to be a situation where not onlywas there damage to or loss or injury to some other person, but there also had to be another driver involved. The reason I say that is that 68(1)(c) says that the driver involved in the accident must: produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request [to a peace officer or] to a witness … the information.  In my view, that section presupposes that he, the driver, has obeyed his obligation to remain at or immediately return to the scene of the accident. So 68(1), in my view, involves twocars and a situation additionally of someone sustaining lossor injury, be it that other driver or some third party,

whereas s. 68(3) in my view, only applies to a situation where

one driver is involved and he/she has caused damages to property on or adjacent to the highway, other than another vehicle. He then must take reasonable steps to locate and notify in writing the owner or person in charge of the property and send them the facts of the accident and provide other details.

[19]      In s. 68(1), there is a mandatory requirement that the driver involved in the accident remain at the scene or immediately return to the scene and he must produce in writing to the other driver and anyone sustaining loss, various pieces of information, whereas under s. 68(3), there is no provision that he must remain or that he must immediately return to the accident. Rather, it says that he must take reasonable steps to locate and notify in writing the owner or person in charge, of the fact that an accident has taken place. The fact that he is required under 68(3) to take reasonable steps to locate and notify in writing the owner or person in charge of the property, in my mind, means that it is not something that he is required necessarily to do “immediately”, whereas under 68(1), when he has an accident with another car and the other driver or the other driver’s property or even somebody else’s property, is damaged or lost, in that two-car accident, he has to stay there and “immediately” give the information.

Motorist At Fault for Failing to Use Emergency Brake When Exiting Vehicle

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

Reasons for Judgement were released today by the BC Supreme Court, Fort St. John Registry, dealing with an interesting set of facts.
In today’s case (Shular v. Seneca Enterprises Ltd.) the Defendants owned/operated a motor home that stalled. The Plaintiff came across this stalled vehicle and tried to assist the Defendants.  The Plaintiff helped move the motor home across the road then got under it trying to repair it when it rolled back over him and caused serious injury to his hip and leg.
The Defendants were found 75% responsible for the Plaintiff’s damages for failing to engage the emergency brake before allowing the Plaintiff under it and the Plaintiff was found 25% at fault for failing to verify if the vehicle was safe before trying to repair it.
In coming to this finding Madam Justice Kloegman made the following findings and analysis:
I find from all the evidence, on a balance of probabilities, that (the Defendant) likely knew, or ought to have known, that the plaintiff had gone under the motor home to try and change the gears of the motor home manually…

[9] I find that the defendants owed a duty of care to the plaintiff to ensure that the motor home was safely secured while he was under it.  The reasonable standard of care in such a situation is set out in the Occupational Health and Safety Regulation, B.C. Reg. 296/97, of the Worker’s Compensation Act, R.S.B.C. 1996, c. 492, and the Seneca Enterprises Ltd. protocol as described by Wahl.

[10] Section 17.2.2(2)(b) of the Occupational Health and Safety Regulation of the Worker’s Compensation Act states that the following procedure must be in place if a vehicle is used to transport workers:

The parking brake must be engaged when the vehicle is left unattended and the wheels locked or chocked if the circumstances require.

[11] Wahl testified that it was standard protocol for them to lock and secure the vehicle if they were not in it.  He said the front of the motor home was on a slight incline so it was common sense to put rocks under the wheels to keep the motor home from moving backwards.

[12] The evidence shows that this standard of care was clearly breached by the defendants.  Bond openly admitted that he did not engage the emergency brake when he locked up the motor home, and took no steps to secure it from movement.  Wahl admitted he was not sure whether they had put rocks under the tires; he thought that they had done so, but that they had not done a very good job of it.

[13] Given the defendants lack of care in the circumstances, they must be found liable to the plaintiff for the accident.  In my opinion, it matters not whether the defendants felt intimidated by the plaintiff and his group. ..

[14] From the defendants’ conduct it is reasonable to infer that the plaintiff had the agreement and the consent of the defendants to push the motor home into a safer location and to attempt to repair it.  The defendants cannot now say that because they did not initially ask the plaintiff for assistance, that they were not responsible for what ensued.  I find that the motor home was in the care and control of the defendants throughout this time period, and that they never lost custody of it to the plaintiff or his group.

[15] The defendants submit as an alternative plea that the plaintiff was contributorily negligent, and I tend to agree.  The plaintiff described what was quite a risky procedure of moving the transmission manually into drive so the motor home could be mobilized.  He admitted in cross examination he didn’t know what gear the transmission was in, and that he “assumed” the emergency brake was on and “assumed” the motor home was in neutral.  He made no independent check to see if his assumptions were correct and I find that he did not take sufficient care for his own safety in the circumstances.  I accept his explanation that he thought Bond was attending to the brake, but he should have made sure of this before moving the gears.

[16] Given all the circumstances, and the respective degrees of fault, I find that the plaintiff should be held twenty-five percent liable for his injuries and that the defendants should be held seventy-five percent liable for the plaintiff’s injuries.

Passenger Found Liable for Grabbing Steering Wheel of Vehicle

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Passenger Found Liable for Grabbing Steering Wheel of Vehicle

(Please note the case discussed in this article went before the BC Court of Appeal in March, 2010, you can click here to read my post discussing the Court of Appeals Reasons)
Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004.  The vehicle left the roadway, hit a ditch and over-turned.  3 of the 4 occupants sued for personal injuries.
The front seat passenger grabbed the steering wheel while the vehicle was in operation.  The vehicle then lost control.  The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night.  Hers was the only memory subject to the confounding effect of excessive alcohol consumption.  I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41] Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol.  The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish.  I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did.  The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel.  I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42] I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night.  Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43] In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch.  (the driver) was not negligent and did not contribute to the cause of the accident.  (the driver) was sober and was competent to drive the Jeep.  No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.
In this case the vehicle was owned by the front seat passenger’s father.  He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle.   Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86 (1)        In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner, or

(b)        acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle.  In fact the court found that:
[24] The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession.  His purpose for imposing that rule was to keep the children and his cars safe.  That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends.  The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.
The court found that the father (owner) did consent in these circumstances finding that:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!
Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle.  Specifically the court found that:

[51] When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory.  As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52] For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it.  (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.

BC Court of Appeal Clarifies Law Regarding Loss of Vehicle Control

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

In an important judgment released today by the BC Court of Appeal, the law relating to what inferences a court can draw regarding liability (fault) when a vehicle leaves its lane of travel was clarified.
As in many areas of law, there were some competing authorities addressing this topic and today’s judgment reconciled these. For anyone advancing a tort claim as a result of a single vehicle accident in BC this case is must reading.
In 2002 the Plaintiff’s were injured when the driver of their vehicle lost control in winter driving conditions. The accident was significant. The truck “traversed a bridge, travelled about ten feet after leaving it, and then rolled over and landed on its wheels below the road, resulting in injury to the Plaintiffs“.
The Plaintiffs sued several parties as a result of this accident, most importantly the driver of the vehicle. The Trial Judge found that the Plaintiffs “had failed to prove negligence on (the drivers) part” and that the driver “had driven with reasonable care and that any presumption of negligence arising from his loss of control was rebutted by his explanation that the truck had fishtailed when it went over a bump between the road surface and a bridge.”
The Court of Appeal upheld the trial judgement. In doing so some important clarifications in the law were made.
The Appellant sought to rely on the judgment of Savinkoff v. Seggewiss, in which the court held that “sliding out of control…gives rise to an inference of negligence…in that (the driver) was either not sufficiently attentive to the road conditions, or he was driving too fast, or both.” In Savnikoff the court quoted with approval a passage from an old case where it was held that “if roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace“.
In today’s judgment the Court of Appeal referred to the authoritative judgment of Fontaine v. British Columbia. In that decision the Supreme Court of Canada held that “(the bald proposition that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single vehicle accident) ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstces of each case“.
The Court reconciled the Fontaine and Savinkoff decisions as follows:
If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the matter suggested, I believe the decesion has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to ‘explain’ how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at paragraph 53 of her reasons, such an inference will be ‘highly dependant on the facts’ of the case and the explanation required to rebut it will ‘vary in accordance with the strength of the inference sought to be drawn by the plaintiff.
Bottom Line: If a driver loses control of a vehicle he/she is not automatically at fault nor is there a shifting of the burden of proof. The court simply MAY draw the inference that he/she is at fault and whether it is appropriate to do so is ‘highly dependant on the facts of each case’.