Tierney v. GMAC Leaseco Corporation, 2010 BCSC 1179
August 24, 2010- This rather unusual “no car accident” accident involved a personal injury claimant that fell from his motorcycle when attempting to avoid another vehicle. The injury claimant foolishly set out without a helmet. The injury claimant was driving a 1983 Yamaha 750 motorcycle and was only wearing a tee shirt, shorts, and sandals. The injury claimant acknowledged that he may have been tired that evening and he had consumed alcohol. It was clear however that he was not legally impaired and the police administered an ASD test at the scene which yielded a low reading.
The court found that the absence of physical evidence, and the unreliability of the various witnesses, including hugh contradictions in the evidence, left the court with little to go on. The judge said that this is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split of fault .
The judge found that the other driver gave a straightforward story of proceeding from the highway to the curve on having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. In dismissing the injury claim the judge stated:
“I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff[ injury claimant] is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.” Posted by Mr. Renn A. Holness
Issue: Should there have to be contact between the two vehicles for a person to make a personal injury claim with ICBC in British Columbia?