This first personal injury case of 2017 is a classic example how various witnesses to a car accident will remember the circumstances differently. This is also an unusual ICBC rear end crash in which the person hitting the other from behind is found 75% at fault.
As Supreme Court Judge Griffin pointed out:
Even honest witnesses will typically have some inconsistencies in their evidence, as memories of events, as well as interpretations of words used in prior statements, are not always clear. (para 92 of Varga v. Kondola, 2016 BCSC 2406)
Ms. V. was turning left in lanes of traffic to try to get over to a left-turning lane when her vehicle was struck from behind by a truck driven by Mr. K. The collision sent Ms. V.’s vehicle flying across a raised median into lanes of traffic coming the opposite direction, where she ran into a vehicle with two occupants. Four lawsuits ensued and liability was joined to be heard together, an agreement made by all personal injury lawyers involved. The evidence in the liability trial will be evidence in the trial of each personal injury lawsuit, and this judgment applies to all the injury claimants.
In reaching her conclusion, the judge gave no weight to Ms. V.’s reported statements at the accident scene to the effect that she was sorry. She adopted the analysis of Adair J. in Dupre v. Patterson, 2013 BCSC 1561, including the reliance on the Apology Act, S.B.C. 2006, c. 19, s. 2 at para. 41, to the effect that an apology in such a circumstance at an accident scene does not constitute an admission of liability.
However the court found Ms. V.’s statement after went beyond an apology to describe facts which were consistent with the most likely scenario of why Ms. V. made a sudden lane change, and that is because she was running late or close to being late and unsure of where she was going. The fact she needed to rely on a GPS device on her iPhone was consistent with her being unfamiliar with the route and where she needed to .
The Judge found Ms. V. 75% liable for the accident ( Ms. V was rear ended), by making a left lane change from lane 1, the curb lane, into Mr. K.’s lane, lane 2, when it was unsafe to do so. The Judge also found Mr. K. 25% liable, for not exercising reasonable care to allow for a wider distance between his vehicle and Ms. V.’s, instead of driving at the full speed limit of 60 kph in the lane right next to her, given that he witnessed her driving erratically and making lane changes between lane 1 and lane 2 and given his view that she posed a hazard.
Mr. K rear ended the other driver and was found only 25% at fault because there is an existing duty to be on the lookout for unsafe and unexpected events on the road, including unsafe maneuvers by other drivers.