Court rejects defence argument that plaintiff contributorily negligent for failing to wear seatbelt

In reasons for judgment released this week, the court in Ackermann v. Pandher, 2017 BCSC 880, refused to find the plaintiff contributorily negligent for failing to wear his seatbelt in circumstances where the plaintiff injured his wrist in a car accident (resulting in surgery and the insertion of metal plates into his wrist).  The defence argued the plaintiff would not have suffered the wrist injury had he been wearing his seatbelt.  The court rejected this argument, with Mr. Justice Schultes saying:

[105]     The defendants’ counsel submits that Mr. Ackermann should be assigned at least 25% fault because of his failure to wear a seatbelt.


[108]     On the question of what role wearing his seatbelt could have played in preventing Mr. Ackermann’s injuries, the defendants’ counsel submits that, despite the subjective impressions of the occupants, this was not such an extreme collision that wearing it would have been rendered useless. It was a side-swipe rather than head on collision; there was no major intrusion into the cabin area, and none where Mr. Ackermann was sitting; the occupants were able to leave the truck themselves; and Mr. Ackermann’s other injuries were minor and healed soon after.

[109]     In particular, the defendants resist the suggestion that proof of the ability of the seatbelt to prevent or reduce the injury that he suffered required expert evidence on their part...

[122]     ...Where I conclude that the defendants fall short is my ability to be satisfied on a balance of probabilities that his wrist injury would not have occurred, or not been as severe. We do not know, because Mr. Ackermann could not describe it, where in the course of the accident his wrist was injured. We know, because it was Ms. Martens’ evidence and the basis of her injury claim, that some part of his body struck her shoulder, but no specific probable mechanism of injury to him emerges. And balanced against the theory that it occurred due to his ejection from his position is his evidence that he bent down and covered his head before impact, which adds a reasonable possibility that his wrist was injured when he was still in a position to which a seatbelt would have confined him. I think a resolution of this question to the required standard would have required some evidence of the post-accident dynamics of a person in Mr. Ackermann’s location and bodily position, with and without the seatbelt, and an attempt to link his wrist injury with his likely route of travel to his resting position.

[123]     On the current evidence I conclude that the defendants have not met their burden and I am therefore unable to attribute fault to Mr. Ackermann for his injuries to any degree.

The full decision can be found here:

Court finds prior conviction for careless driving not binding in subsequent personal injury trial

In reasons for judgment released on Tuesday, the court in Chand v. Martin, 2017 BCSC 1232, held that the plaintiff's prior conviction for driving without due care and attention was not binding in his subsequent personal injury trial.  Madam Justice Russell wrote:

[84]        On June 22, 2009, Mr. Chand pleaded guilty to a charge under s. 144 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] for driving a vehicle without due care and attention. As a result, a $1,500.00 fine was imposed on him.


[86]        The key decision regarding the effect of a guilty plea in a subsequent proceeding involving the same facts is Toronto (City) v. CUPE Local 79, 2003 SCC 63. In that case, the Supreme Court of Canada was considering whether the grievance of a dismissal following a conviction for sexual assault amounted to an abuse of process. The Court provided the following comments at paras. 51-53:

[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

[Emphasis added]

[87]        I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]        Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.

The full decision can be found here:

Defendant who perjured himself and presented phony witness still successful in arguing contributory negligence

In a somewhat-bizarre decision released today, the court in Dizon v. Losier, 2017 BCSC 431, dealt with a defendant who admitted to perjuring himself and presenting a phony witness during the course of a personal injury trial.  The facts in Dizon involved a relatively routine rear-end motor vehicle accident.  Unfortunately for the defendant, however, he had forgotten to renew his car insurance at the time of the accident, and therefore had no insurance coverage.  As such, the defendant was forced to defend the action himself.  During the course of the trial the defendant presented a phony witness who claimed he had witnessed the crash, and that the plaintiff was at fault.  This witness also claimed he had never met the defendant.  Somewhat predictably, both the defendant and the witness crumbled under further questioning, and both admitted they knew each other and had made the whole thing up.  Despite this admitted perjury from both men, the trial judge still found the plaintiff 15% at fault for the rear-end collision.  Somewhat strangely, it does not appear that the defendant or the witness were charged with perjury as a result of their testimony, with the only sanction being the awarding of special costs for one day of the trial.  In giving reasons, Madam Justice Russell said as follows:

[1]             On August 26, 2014, the plaintiff, Charlston Dizon, suffered injury as a result of his Mercedes SUV being hit from behind by the truck of the defendant, Joseph Losier.

[2]             The defendant’s truck was uninsured. This was due to him inadvertently re-insuring the wrong vehicle. Mr. Losier drives two vehicles, and the insurance for the truck he was driving during the accident expired the day before the insurance for his other vehicle.

[3]             As a consequence, the defendant represented himself at trial, contesting both liability and damages.


[13]         The defendant alleges that the plaintiff was contributorily negligent. This is because, he maintains, the plaintiff stopped suddenly and for no reason, thus neglecting to act reasonably for the care of others on the road.

[14]         A unique issue that has arisen in this case is that of the defendant’s perjury. Its effect on the court’s ability to weigh any of his evidence is an issue in contention, and must be assessed by this Court.


[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[50]         ... I find that the evidence supports the defendant’s contention that the plaintiff played a key role in causing the accident. The plaintiff’s statement to the RCMP undermines the idea that, at the time of the accident, the light was amber. Instead, I find that, in suddenly braking, the plaintiff failed to take reasonable care for his own interests, an action that was causally connected to his injuries. The nature of the plaintiff’s injuries is consistent with those one would suffer from being rear ended after suddenly braking. Consequently, this was a foreseeable risk directly related to the plaintiff’s carelessness, and so there are no remoteness issues.


[52]         The defendant bears 85% responsibility for the accident and for the damages that flow from it. The plaintiff, due to his sudden braking, bears the responsibility for the remaining 15%.


[83]         The plaintiff will have his costs of the action, subject to any submissions.

[84]         In addition, the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

The full decision can be found here:

Court finds rear-end driver not liable for accident due to "sudden and unsafe lane change" by plaintiff

In reasons for judgment released this morning, the court in Varga v. Kondola, 2016 BCSC 2406, was presented with the problem of determining liability for a rear-end collision.  In Varga, the defendant argued he was not at fault for rear-ending the plaintiff, as the plaintiff had "suddenly" swerved in front of him leaving him no time to stop and avoid the collision.  Madam Justice Griffin ultimately agreed with the defendant, finding the plaintiff 75% at fault for the accident:

[94]         I have found the evidence of Mr. Kondola to be more consistent with the weight of the other evidence and more inherently probable than Ms. Varga’s evidence. I therefore prefer his evidence over hers.

[95]         Considering all the evidence, I am satisfied on a balance of probabilities that Ms. Varga made an unsafe lane change.

[108]     ...Mr. Kondola’s evidence that Ms. Varga made a sudden lane change and then braked is consistent with the other circumstances, most importantly, how close the parties were to the intersection at the time of the collision, combined with Ms. Varga’s desire to make it to the left-turn lane.

[114]     In short, Mr. Kondola’s evidence is consistent with the most probable scenario that Ms. Varga was trying too late and too close to the intersection to make it over to the left-turn lane. Accepting that, I find his evidence that she was in the lane to his right, lane 1, before suddenly turning in front of him, entirely consistent with the probable version of events.

[115]     I therefore accept Mr. Kondola’s evidence that Ms. Varga was driving in lane 1 when she suddenly made a lane change in front of him into lane 2, simultaneously while putting on her blinker and braking. I find that Mr. Kondola did not have the ability to avoid colliding with her.

[117]     I conclude that Ms. Varga did not meet her obligations under s. 151(a) of the Act as she turned left into another lane without first ascertaining that she could do so safely and without affecting the travel of another vehicle. I find therefore that she negligently caused the accident.

[127]     It is clear that Ms. Varga bears the greater responsibility for the accident. I find Ms. Varga 75% liable for the accident and Mr. Kondola 25% liable.

The full text of the decision can be found here: