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Personal Injury Case Lost as Motorcycle Driver found to be Drunk and on the Wrong side of Road


In this tragic motorcycle injury case (Hale v. MacEwen,2011 BCSC 1404) the injury claimant was found to be totally at fault for his significant physical injuries. This lawsuit arose from a collision between a motorcycle  and a cube van which occurred in Maple Ridge, British Columbia.  The injury claimant and his passenger  suffered personal injuries as a result of the car crash. Take a read of my article on getting legal help for your ICBC injury claim.
The injury claimant was driving a Harley Davidson Heritage Softail motorcycle and the other driver was operating a cube van. The accident occurred at approximately 6:30 p.m. on a pleasant summer evening. Lighting was good and the roadway was dry. All agree that the road conditions played no role in the accident.
The Judge found that the resting location of the motorcycle, coupled with the location of debris from the motorcycle and the location of the gouge marks from the frame rail and bolt result in the finding that the injury claimant was totally within the other driver’s  lane and that at no time did the cube van, or any part of it, extend across the centre of the yellow dividing line. Interestingly the Judge found that he did not have to find that drinking contributed to the collision stating,

“[51]  I reject the notion that I should prefer their evidence concerning alcohol prior to the accident over the hospital test results and the opinions of the two experts who relied upon them to arrive at a different drinking pattern than that testified to. Whether the defendant’s[sic plaintiff’s] driving was as a result of impairment is not something I need decide. The fact of his impairment is relevant to his observations concerning the happening of the accident and his location both as to their reliability and credibility.”
Given the serious nature of this personal injury the personal injury claimant needed the help of a personal injury lawyer but that could not change the Court’s ultimate  finding of fact. The court found that the van was in his own lane when the collision occurred and commented in the current state of the law,

“[59]   Here I am able to say with some precision where the accident occurred and the distance of the defendant’s container from the centre line. As noted, I am satisfied he was with in his lane of travel. The negligence of the plaintiff has been made out. He failed to maintain his vehicle within the travelled portion of the roadway for his direction of travel.

[60]         The remaining question is this: was the defendant so close, as was the case in Watson, as to make his actions unreasonable?

[61]         In concluding that he was not, I distinguish the situation from that which occurred in Watson, to the facts here. Here, the violation by the plaintiff was both unusual and unexpected.

[62]         Neither driver testified to a situation which should have caused the defendant to consider that the plaintiff would fail to negotiate the corner. His speed was not an issue and he seemingly, according to all witnesses, had control of his vehicle as he entered the curve.

[63]         As was stated in Tucker (Guardian of) v. Asleson,  [1993] 6 WWR 45, 102 D.L.R. (4th) 518 by Southin J.A.:

35 Having concluded that the answer to the question which I posed at page 19 is “yes”, the next question is whether Mr. Asleson’s response upon sighting the Tucker vehicle was a breach of his duty of care to Mrs. Tucker and the plaintiff.

[64]         A driver’s conduct must be judged by the standards of normal persons and not by applying the standards of perfection:  Freedman v. City of Côte St. Luc, [1972] S.C.R. 216.

[65]         A driver is bound to anticipate on the part of the other drivers, only those follies which according to the teachings of experience commonly occur:  Provincial Transport Co. v. Dozois, [1954] S.C.R. 223.”

Posted by Mr. Renn A. Holness

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