Tag: Standard of Care

Court of Appeal Discusses Standard of Care In Road Construction Liability Cases


Reasons for judgement were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80% responsible for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle through a construction zone when he drifted over the fogline to his right.  There was a two inch drop off in the pavement level due to on-going construction.  The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial judge found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care.   The Defendants “failed to adhere to several of those standards“.  In finding that this was an appropriate standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
[11]         Sections 138 and 139 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
[12]         The Ministry of Transportation’s Traffic Control Manual for Work on Roadways [the “Manual”] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways.  Section 1.1 states that the examples provided within the Manual are “generally the minimum required”…
 
[45]         As already noted, the trial judge held at para. 93 of her reasons that s. 138 of the Motor Vehicle Act and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances.  (Although not specifically mentioned, s. 139 is of relevance as well.)  She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para. 71:
[71]      In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual.  By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained.  The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
[72]      In my view, the defendants failed to adhere to several of those minimal standards.  With respect to many of them, Mr. Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
[46]         The errors identified by the appellants are findings of fact made by the trial judge.  The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court.  Those findings of fact are amply supported by the evidence.  I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.

Road Maintenance Claims "Clearly Require Expert Evidence" Addressing Standard of Care

If a road maintenance company unreasonably fails to maintain a road for which they are responsible they can be held civilly liable for resulting harm.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, discussing the complex nature of  such claims finding that such cases clearly require expert evidence to succeed.
In last week’s case (Collins v. Rees) the Plaintiff was injured in a 2005 collision when she lost control of her vehicle colliding with the side of the Massey Tunnel and was then struck by another vehicle.  She sued the contracting company responsible for maintaining that stretch of roadway arguing they failed to take proper steps to prevent the build up of ice.
Mr. Justice Williams noted that the claim must fail as there was no evidence to prove icy conditions caused the loss of control but further that cases such as this cannot succeed without expert evidence addressing the standard of care.  The court provided the following comments:
 
[36]         With respect to the issue of standard of care, I can find nothing in the record which could be said to constitute evidence going to prove the applicable standard of care of the defendants. To find that on the evidence before this court would require guesswork and speculation. I am unable to infer that standard from the evidentiary record.
[37]         Inference is the exercise of reaching a logical conclusion by reasoning from proven facts. Here, the proven facts from which the inference could be drawn are not present.
[38]         Insofar as applying my own knowledge of every day matters, that would not be an appropriate way to deal with this issue. Decisions as to the proper steps, measures and procedures to sign and maintain a highway system in a large metropolitan community are undoubtedly complex things. I am sure that engineers have spent their entire lives working on those very issues. The same applies with respect to issues such as drainage and vapour barriers. It is not reasonable to expect that a trial judge, as a layperson, will draw the inferences to establish this element. It is clearly a matter that requires expert evidence.
[39]         Accordingly, I find the plaintiff has adduced no evidence with respect to the element of the applicable standard of care and, as well, the issue of the defendants’ failure to meet that standard of care and that, therefore, the defendants’ applications must succeed.

Province Not Liable For Prisoner Injured by Axe


Reasons for judgement were release this week by the BC Supreme Court, Nanaimo Registry, dismissing a lawsuit against the Province of BC for injuries sustained by an inmate struck with an axe, allegedly by another inmate.
In this week’s case (Foulds v. British Columbia) the Plaintiff was incarcerated in the Nanaimo Regional Correctional Centre.  In the course of his incarceration he was placed on a “farm gang” along with other inmates.  The Plaintiff and another inmate were tasked with clearing brush and stacking wood.  They were provided with axes.   The Plaintiff and the other inmate decided to chop down a tree (a job that he was not tasked with).  During this time the Plaintiff “was struck on his left knee with an axe“.  There was some inconsistency about whether the Plaintiff struck himself or was struck by the other inmate.
Mr. Justice Affleck held that even if the other inmate struck the Plaintiff the Province should not be liable.  In dismissing the claim the Court provided the following reasons:

[32] The standard of care imposed on the Province in managing the NRCC farm inmates cannot be one of continuous supervision of every inmate at all times. I have no basis to conclude that the system of supervision in place at the farm on May 14, 1997 was deficient and failed to meet the appropriate standard of care. Nor can I conclude that Mr. Matthews’ decision to permit the plaintiff and Cameron the use of an axe to clear brush and to split wood fell below the standard of care. Both the plaintiff and Cameron had been assigned various tasks by Mr. Gooding and Mr. Matthews had no reason to change those assignments. I do not fault Mr. Matthews for permitting the plaintiff and Cameron to take an axe nor do I fault Mr. Matthews for not escorting the plaintiff and Cameron to the worksite in the wooded area.

[33] In my opinion, the absence of direct supervision of the plaintiff and Cameron was not the cause of the injury. The injury was caused or at least occasioned by the decision of the plaintiff and Cameron to use the axe to chop a tree, a task to which they had not been assigned.

[34] There appears to have been several reasons for the NRCC to have a farm. One important reason was for those inmates who were permitted to work on the farm to enjoy a level of independence not permitted to other inmates. That independence would be meaningless if there was continuous supervision. Nevertheless if there was not constant supervision the risk of injury associated with the use of tools of various kinds was increased. That risk had to be tolerated if independence to any degree was to be achieved. The standard of care imposed on the Province must be viewed in that light. I cannot find the Province was negligent.

[35] The action is dismissed…

Driver Fully Liable Following Passenger Ejection From Box of Pick Up Truck

The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.
In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
The Court heard no evidence as to how the Plaintiff came to fall out.   At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box.  The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected.  The Plaintiff appealed this finding arguing there was no evidence to support this conclusion.  The BC Court of Appeal agreed and placed 100% of the blame on the motorist.  In doing so the Court provided the following reasons:

[14] A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches [1956] S.C.R. 787 at 793).

[15] In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck – whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.

[16] In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.

[17] I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.

Lawsuits Against Insurance Brokers: When Policy Exclusions Are Not Discussed


Important reasons for judgement were released last month by the BC Court of Appeal making it clear that insurance brokers can be sued for professional negligence if they fail to properly advise clients of the limits of their insurance policies.
In last month’s case (Beck v. Johnston, Maier Insurance Agencies Ltd.) the Plaintiff’s home was intentionally burned down by her husband in a tragic murder/suicide.  The home was insured however the policy had an exclusion for losses that occurred as a result of “intentional acts by named insureds“.
The Plaintiff’s estate sued the insurance broker claiming they were negligent in failing to discuss this exclusion when the policy was renewed (which last occurred after the Plaintiff split up with her husband).  The claim succeeded at trial.  The insurance brokers appealed arguing the claim should be dismissed as this damage was not forseeable.  The BC Court of Appeal dismissed the appeal and in doing so provided the following reasons which should ring as a caution to insurance brokers when selling policies of insurance:
[17] Members of the public purchase insurance to protect themselves and their property from unforeseen events. Policies of homeowner’s insurance, rented dwelling insurance and tenant’s insurance are invariably written by insurers, who describe the coverage that they are prepared to provide and the exceptions to that coverage in the policies they write. They then quote the premium that they require to provide the coverage….
[21] Both Mr. Sache, an insurance broker retained by the appellant and Mr. Pat Anderson, a licensed insurance broker retained by the respondent agreed that it is standard practice for brokers to explain the intentional act exclusion in a homeowner’s policy to a customer when insurance is first placed for that customer….
[25] While Ms. Beck may not have had any knowledge or belief that Mr. Beck intended to harm the home at the time her insurance coverage was renewed in July of 2007, such knowledge was not the issue. The issue was whether her insurance broker ought to have discussed her insurance needs with her when it was clear that she and her husband had separated….

[27] The summary trial judge was bound to accept, as she did, the uncontradicted evidence before her of the standard of care to be expected on an insurance broker. In areas where the courts lack expertise with respect to a particular field of endeavour, it is necessary to rely on expert evidence of standard practice of those in that field of endeavour in order to determine whether the requisite duty of care has been met. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 39 Sopinka J. referred with approval to the following statement by Professor Fleming in The Law of Torts(7th ed. 1987) at p. 109:

Conformity with general practice, on the other hand, usually dispels a charge of negligence. It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a “test case”. Finally, it underlines the need for caution against passing too cavalierly upon the conduct and decision of experts.

[28] It was unnecessary for the respondent to prove that Ms. Beck foresaw that Mr. Beck Sr. represented a “real” or an actual risk of intentionally damaging the home. On the evidence, Ms. Beck’s change in circumstances presented a foreseeable new risk to be considered vis a vis her insurance needs…

[33] The summary trial judge was clearly of the view that, when a renewal of insurance coverage is required, the broker similarly has a duty to provide relevant information about the types of coverage available to the client, to meet any change in needs that the client may have as a result of any changes in his or her circumstances of which the broker is or should be aware. There was ample evidence upon which the trial judge could make that finding, and no basis upon which this Court can interfere with it.

BC Court of Appeal Finds There is only a "Single Standard" Under the Occupier's Liability Act


Reasons for judgement were released today by the BC Court of Appeal discussing the standard of care for Occupier’s Liability lawsuits in BC.
In today’s case (Charlie v. Canada Safeway Limited) the Plaintiff slipped and fell near a display of flowers while shopping at Safeway in Duncan, BC.  The flowers were kept in water and when customers picked up the flowers for purchase they sometimes “could drip (water) on the floor”.  She was injured and sued for damages.
During her fall the Plaintiff knocked over one of the buckets of flowers spilling a considerable amount of water on the floor.  The Plaintiff could not offer direct evidence that dripped water made her fall but inferred that this was the cause of her fall.  At trial the Court refused to make this inference and dismissed the lawsuit.  The BC Court of Appeal dismissed the appeal finding there was no error in law in the Court refusing to draw the same inference the Plaintiff made.
The Plaintiff went further and argued that “there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk.
The Court of Appeal rejected this argument and in doing so made it clear that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  The Court provided the following reasons:
[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

Driver Liable to Passenger Ejected from Box of Truck

(Update November 2, 2011 – Note the below case was modified by the BC Court of Appeal with a finding that the motorist should be 100% at fault due to the absence of any evidence of contributory negligence)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, discussing the issue of fault when a passenger riding in the box of a truck is ejected and injured.
In today’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant “first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
Madam Justice Beames determined that the Plaintiff rose from a seated position in the course of the trip and then was ejected.  The court held that both the Plaintiff and the Defendant were at fault with the Defendant shouldering most of the blame.  Madam Justice Beames provided the following reasons:
[31] There is no question that the defendant was responsible for allowing the plaintiff and the other children to ride in the box of his truck. He did not have to allow the plaintiff to get into the box of the truck, and he had enough seats and seat belts, I find, inside the truck to accommodate all of his passengers, including the plaintiff…

[34] I find the defendant owed a duty of care to the plaintiff and that he breached that duty and failed to exercise a standard of care of a reasonable person in the same circumstances. That negligence was clearly causally connected to what happened to the plaintiff. The plaintiff would not have been injured had the defendant not allowed him to ride unrestrained in the box of his truck. It was foreseeable, in my view, that what occurred would or could occur.

[35] I turn now to the issue of contributory negligence on the part of the plaintiff…

[44] In the circumstances of this case, I would not find that the plaintiff was contributorily negligent simply by riding in the back, or the box, of the truck. He was allowed to be there by an elder from the Sun Dance ceremony which featured community, trust and respect for elders. However, I do find that the plaintiff was, by getting up from a seated position on the floor of the box in a moving truck, negligent in fact.

[45] Consequently, the defendant has proved contributory negligence…

[53] In all of the circumstances of this case, I apportion fault between them as follows: the plaintiff, 25 percent; the defendant, 75 percent.

More on the Standard of Care When Driving Near Children


As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.
In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.
The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident.  When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances.  In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.

The Standard of Care When Driving Near Children


We all know that children can be unpredictable.  As such motorists have to take special precaution when driving by pedestrian children.  The standard of what is safe will be stricter in these situations and reasons for judgement were released this week discussing this legal principle.
In this week’s case (Johnson v. Eyre) the 7 year old Plaintiff, who was riding his bike, was struck by the Defendant’s motor vehicle and sustained injuries.  Ultimately the lawsuit was dismissed because the Court found that “(the Defendant) simply could not avoid striking (the Plaintiff)…The collision occurred because the youths turned…into the path of the (defendant) vehicle…(the Defendant) took appropriate evasive action in the little time he had to react.”
Before dismissing the claim, however, Mr. Justice Greyell did a good job summarizing the standard of care motorists should exercise when driving by children.  The below quote is a useful summary of this area of personal injury law:
[15] The plaintiff relies on the following passage in Bourne v. Anderson, 27 M.V.R. (3d) 63 where Hood J. said at para 55:

55        In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

This passage was cited with approval by the Court of Appeal in Hixon v. Roberts, 2004 BCCA 335.

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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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