Plaintiff Found At Fault for Parking Accident

In the recently published decision of Haughian v. Jiwa, 2011 BCSC 1632, Mr. Justice Punnett held that a plaintiff was solely responsible for an accident that occurred on 9 June 2008 in Burnaby. The plaintiff was attempting to park in a diagonal parking space and, in doing so, crossed in front of the defendant who was proceeding in the same direction. The left front corner of the defendant’s vehicle stuck the right side of the passenger door of the plaintiff’s vehicle.

 

Parking Accident at Root of ICBC Injury Case

 

The court applied sections 144(1), 151 and 168 of the Motor Vehicle Act and the applicable bylaw regarding “angle parking”. In doing so, Justice Punnett said the following:

 

[77] As noted earlier, the defendant turned left onto Sunset Street. He turned into the inside lane closest to the yellow centre line and immediately changed lanes into the right lane nearest the parking stalls. The distance from the corner to the accident location is no more than approximately 7 to 8 parking stalls. Clearly this whole sequence of events unfolded over mere seconds.

 

[78] The damage to the vehicles is only consistent with the plaintiff turning right from the inside lane on Sunset Street across the path of the defendant. In doing so, the plaintiff was acting contrary to the Act and the Bylaw. The defendant had the right of way and was entitled to proceed on the assumption that other drivers would respect that right of way. The effect of s. 151(a) is to make the plaintiff the servient driver. The fact that she was in breach of the Act does not determine that she was negligent. (Dickie Estate). However, when she violated the Act and the Bylaw, her duty of care increased. (Hadden v. Lynch, 2008 BCSC 295).

 

[79] Given the plaintiff thought she was in the only lane of Sunset Street, I am satisfied that she would not have been concerned about turning across the defendant’s lane: she did not believe it existed as a lane of travel. As a result, her manoeuvre, even if I accept she signalled, was undertaken without adequate warning to the defendant driver.

 

Opportunity to Avoid Accident in ICBC Injury Case

 

The plaintiff argued that the defendant should be held partially responsible for the accident for failing to avoid the accident. The court rejected the plaintiff’s argument and, in doing so, stated the legal principles involved:

 

[80] The plaintiff seeks to place some responsibility on the defendant driver. The onus to do so rests on the plaintiff. The plaintiff must establish that as a reasonably careful and skilful driver the defendant driver, after becoming aware of her presence in his lane, had sufficient opportunity to avoid the accident…
[82] The plaintiff’s onus must be met by reliable evidence relating to time, distance and speed. In Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273…, the court stated that a party must establish by:

 

… definitive evidence and on the balance of probabilities that the [defendant] had time, distance and opportunity to take effective measures to counteract the effect of his, the [plaintiff]’s negligence.

 

[83] The evidence of the defendant is that the plaintiff turned across his lane without signalling her intentions. The plaintiff’s assertion that she first saw the defendant when he was 4 to 5 parking spaces away is consistent with the defendant’s evidence that the turn was made immediately in front of him. The defendant states he was not speeding. The speed limit was 50 km per hour. The distance involved on the evidence of the plaintiff was limited. The resulting time available to the defendant to react was also limited. That reaction time is to be judged by the “the standards of normal persons and not by applying the standards of perfection”…

 

[84] The actions of the plaintiff would not be anticipated by a reasonable person. Her conduct was so out of the norm that the defendant would have no reason to anticipate her attempt to park by crossing over his lane of travel. There was no evidence that such a manoeuvre was common practice. At best, had she signalled, the expectation of a reasonably competent driver would be that she was signalling a lane change. As required by s. 151 of the Act, the plaintiff had the obligation to ensure that her movement towards the parking space could be completed safely and not affect the travel of the defendant driver.
[85] The plaintiff has failed to establish that the defendant had the time, distance or opportunity to react and avoid the plaintiff. The evidence of the defendant is consistent with the physical evidence; that of the plaintiff on either of her versions is not. As noted in Haase, any doubts are to be resolved in favour of the defendant.

 

[86] For these reasons I am satisfied that the necessary findings of fact can be made in this summary application and that it is not unjust to do so. I am satisfied that the plaintiff was solely responsible for the accident and that no liability rests with the defendant. The plaintiff’s claim is dismissed.

 

Expert Reports – Requirements in ICBC Injury Case 

 

The court also addressed the mandatory requirements for expert reports set out in Rule 11-6(1). In its ruling that the expert engineer’s report filed by the defendants was inadmissible as expert evidence, Justice Punnett said the following:

 

[32] The report tendered fails to include, as part of the formal report, the expert’s area of expertise, his qualifications and employment and educational experience, the factual assumptions on which the opinion is based and a list of every document, if any, he relied on in forming his opinion. The expert himself acknowledges the deficiencies of his report in his letter dated December 2, 2010. He clearly did not prepare it or the follow-up letter with the intention that they would be used for court purposes.

 

[33] In my view, the report fails to comply with Rule 11-6(1). The rule specifies the form a report is to take. It is imperative in its language. As noted, it is not simply a matter of form. It is not for plaintiff’s counsel, or for that matter the court, to piece together various documents and attempt to determine what the report actually consists of. The object of the Rules is the “just, speedy and inexpensive determination of every proceeding on its merits” (Rule 1-3). A failure to comply with the Rules may in fact be contrary to that object where it leads to uncertainty and therefore has the potential to increase the time and expense involved in resolving litigation.

 

[34] The defendants take the position that in the event the report fails to comply with Rule 11-6(1) this Court should exercise its discretion pursuant to Rule 9-7(5)(e)(ii) and render the report admissible even though it does not conform to Rule 11-6(1). In encouraging this Court to exercise its discretion pursuant to Rule 9-7(5)(e)(ii), counsel for the defendant argues that the issue is not complex and thus a lengthy and complex report is not necessary.

 

[35] I am satisfied that the report fails to comply with Rule-11-6(1).

 

[36] I will not exercise my discretion to include the report for the following reasons: first, in order to either cross-examine the expert or decide whether to obtain a reply report, the plaintiff is entitled to a report that complies with Rule 11-6(1). While the issues addressed in the report are not complex, in my view, the plaintiff is prejudiced by the failure to comply with Rule 11-6(1); second, while the court may be inclined to admit a report if, for example, it properly references a separate statement of facts and assumptions relied upon, that is not the case here. I therefore decline to exercise my discretion to permit its admission into evidence.

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