Court finds defendant driver 100% liable for turning left into overtaking motorcyclist

In reasons for judgment released last week, the court in Ratelle v. Barton, 2017 BCSC 1262, found the defendant driver 100% at fault for a collision with a motorcycle.  In Ratelle, the plaintiff was riding his motorcycle on the sea-to-sky highway and attempted to overtake and pass the defendant driver when the defendant suddenly turned left to exit the highway, hitting the plaintiff causing a fairly serious crash.  In finding the defendant wholly at fault Madam Justice Maisonville said:

[143]     I find that the defendant is 100 percent at fault for the accident.  Had the defendant checked his mirrors during the drive, signaled his intention to turn left by putting on his turn indicator or shoulder checked to determine that it was clear and safe to pass, in compliance with s. 165 and 170 of the Motor Vehicle Act, this accident would not have happened.  The defendant failed to demonstrate due care and attention.  The plaintiff had followed the defendant’s vehicle at a safe distance and initiated a legal pass at a dotted line when it was safe to do so. 

[144]     I accept all three witnesses who testified that Heliport Road can be referred to as a driveway which turns to gravel just shortly after the entrance and the fact that there is no street sign makes it completely dissimilar from a typical intersection.

[145]     I find the defendant was driving without due care and attention and without reasonable consideration for others on the highway, in breach of s. 144 of the Motor Vehicle Act, considering that the motorcycles were there to be seen.

[146]     Section 165(2)(a) of the Motor Vehicle Act as well obliges the defendant to bring his vehicle to the centre line, separating his lane of traffic from oncoming traffic before commencing his left turn.  Instead, the defendant testified that his vehicle was in the centre of the lane before he commenced his turn, and indeed the plaintiff and Mr. Martinello gave evidence that it was near to the right shoulder of the lane.

[147]     I find that the defendant did not activate his turn signal and failed to, otherwise, indicate his intention to turn left.  Instead, he was manoeuvring to the right before beginning with a left turn.  He also failed to perform a shoulder check.  He failed to pay due care and attention to check the traffic behind him, instead, assuming he was alone on the road.  The defendant failed to properly check his mirrors, if at all.  Those motorcycles were there to be seen for quite a way as they travelled before the accident.  

[148]     As a consequence of his own negligence, the defendant was unaware of the presence of the two motorcyclists behind him and he failed to clearly indicate his intention to turn.  I find that the defendant was in the best position to see the plaintiff intending to pass his vehicle but by not having adequately checked his mirrors or performed shoulder check, he failed to notice the motorcyclists: see Bathgate at para. 87.

The full judgment can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1262.htm

Motorcyclist awarded $115,000 in non-pecuniary damages for fractured ankle

In reasons for judgment released on Monday, the court in Ward v. Walker, 2017 BCSC 484, awarded a 52-year-old motorcyclist $115,000 in damages after he suffered a fractured ankle in a motorcycle accident .  Madam Justice Beames wrote as follows:

[1]             THE COURT:  On August 3, 2013, the plaintiff was injured when the motorcycle he was riding was struck violently from behind by a motorcycle that was owned and had been being ridden by the defendant. At the commencement of the trial, the defendant admitted liability for the accident.

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[6]             Ambulances and other emergency vehicles attended the scene. The plaintiff was transported to the Arrow Lakes Hospital in Nakusp and then later that day to the Vernon Jubilee Hospital. On August 4, 2013, he had surgery, specifically an open reduction and internal fixation of his fractured ankle. He had both medial malleolar and posterior malleolar fractures. The rupture at the front of his ankle caused by the broken bone was sutured.

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[17]         At the time of the accident, the plaintiff was 49. He is now 52. He has worked in the glazing industry since he graduated from BCIT in 1985, except for short stints working for Corrections B.C. immediately after his graduation, and for his brother‑in‑law in a steel fabrication business. He has two adult children from his first marriage and two adult stepchildren with his current wife who is an elementary school teacher. He has one grandchild and another on the way.

[18]         He had and continues to have a close relationship with his children, stepchildren, and siblings, and he provides care and companionship for his elderly mother who has Alzheimer's and is a resident in a care facility.

[19]         Prior to the accident, the plaintiff was very active, energetic, optimistic, and happy. He shared inside and outside domestic duties with his wife and two stepchildren. He performed home maintenance and repairs, including reroofing his home with cedar shingles. He camped, cycled, motorcycled, ran, hiked, snowboarded, dog‑walked, and played ball with his friends and family. He also worked out at the gym.

[20]         Since the accident, I accept that all of the plaintiff's recreational pursuits have been curtailed. He has been able to resume some of his activities on a very reduced or modified basis, while other activities are no longer possible, even with modification. I find the same applies to the plaintiff's domestic activities. He has returned to some, such as cooking, without modification, and others, such as laundry, on a modified basis. Some other duties such as lawn mowing are painful and difficult for him and he does them only occasionally. Some of his previous activities around the home, such as any activity requiring the use of a ladder, are no longer possible or safe for him.

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[28]         I have read all of the cases provided to me by counsel. Each is, of course, distinguishable on its facts from the case before me. I find that Rizzolo v. Brett, 2010 BCCA 398 (CA) aff’g 2009 BCSC 732, is most factually similar, although that plaintiff was somewhat younger than the plaintiff in this case.

[29]         I award the plaintiff $115,000 in non‑pecuniary damages.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0484.htm

Court awards motorcyclist $850,000 in loss of earning capacity

In reasons for judgment released yesterday, the court in Sundin v. Turnbull, 2017 BCSC 15, awarded a 33 year-old plaintiff $850,000 for loss of future earning capacity.  In Sundin, the plaintiff had been rear-ended while riding his motorcycle and suffered a variety of physical and psychological injuries, including chronic pain and adjustment disorder.  In finding that the plaintiff was also entitled to $175,000 in non-pecuniary damages, Madam Justice Gerow wrote as follows:

[26]         Mr. Sundin has not adjusted well to the chronic pain, and has been diagnosed with an adjustment disorder. He is having trouble accepting he is not going to fully recover, and is going to have to live with chronic pain.

[77]         In my view, the expert evidence supports a finding that Mr. Sundin will continue to suffer from chronic pain and cognitive and memory problems in the future, and will likely suffer flare ups of both his physical and psychological symptoms from time to time.

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[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[156]      Accordingly, I have concluded that as a result of the accident, Mr. Sundin has lost the opportunity to pursue many careers involving heavy physical demands, including firefighting and policing or corrections. It is clear from the evidence that Mr. Sundin is unlikely to be successful in retraining in a formal setting. However, Mr. Sundin has the capacity to work at jobs that can accommodate his limitations.

[157]     This is a difficult case because Mr. Sundin’s ability to keep employment or find full time employment in more sedentary or recreation oriented jobs will likely be limited due to his mood issues, irritability, indecisiveness and inability to get along with people. On the other hand, Mr. Sundin may be able to find and keep employment in the hunting or working outdoors. However, that kind of work is seasonal.

[158]     Having considered all of the evidence, including Mr. Sundin’s age and residual capacity to earn income, I am of the view that the appropriate award for loss of future income earning capacity is $850,000. This award takes into consideration the fact that Mr. Sundin has not established that he would have applied for the RCMP but for the accident, but that he has established he would have applied for and obtained full time employment, likely in the fitness or recreation field. In my view, given his experience at the Canada Games Centre, it is unlikely Mr. Sundin will be able to obtain full time employment dealing with the general public which significantly limits that career possibility.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0015.htm