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Injured Cyclist Wins and Driver Admonished for Inadequate Application Materials


This Fast Track summary trial bicycle accident case(Dupre v. Patterson,2013 BCSC 1561) occurred near Walnut Street and Cornwall Avenue in Vancouver.  A vehicle turned right onto Cornwall from Cypress and knocked the claimant off her bike . The Judge delivered a knock our blow finding that the driver was completely at fault. The court also made important comments about the defendants inadequate application materials well worth reading.
Judge Adair, orally and in chambers, summarized the the relevant legal principles with respect to accidents involving motor vehicles and cyclists quoting from Dobre v. Langley, 2011 BCSC 1315, at para. 31. These principles are:

  • Each person has a duty to look out for others and to take reasonable care that their own actions do not cause others foreseeable harm.
  • Each person has a reciprocal duty to take reasonable steps to look out for their own safety.
  • The degree of care the law expects a person to exercise in a given situation is proportionate to the risks the actors knew about or should have known about, considering all of the relevant circumstances. The greater the risks associated with the activities involved, the greater the degree of care required.
  • Where a judge finds the careless actions of more than one actor, including the injured party, were causes of a person’s harm, the judge can apportion responsibility between them on a percentage basis that reflects the relative blameworthiness of the parties.
  • Even if a judge finds a defendant wholly responsible for the accident’s occurring, they may still reduce the plaintiff’s damages because the plaintiff failed to exercise reasonable care for his or her own safety by taking steps that would have avoided or reduced his or her injuries, such as having failed to wear a seatbelt or a bicycle helmet.
  • The Motor Vehicle Act, R.S.B.C., c. 318 [Motor Vehicle Act], lays down specific rules of the road to regulate the use of highways and crosswalks by motor vehicles, bicyclists and pedestrians. The provisions of the Motor Vehicle Act reflect older common law rules, modified and expanded to reflect the demands of modern traffic.
  • The standard of care expected of a driver is not perfection, but whether they acted as an ordinarily prudent person would act.

The Judge was not at all pleased with the application materials that were filed in an attempt to have the claim dismissed. There was inadequate legal argument and she found that the 14 page legal brief presented on the day of the application was in breach of Rule 8-1(16).  The following is a warning that every good personal injury lawyer should read carefully:

When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with the Rules, are incompatible with the efficient and timely disposition of applications.

If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed. (para 55 and 56)

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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