Category: Liability Apportionment

Court Discusses Principle Of Apportionment Of Liability

In many motor vehicle accidents, 100% of liability will rest with one of the parties. There exist certain circumstances, however, where there can be an apportionment (division) of liability between the parties.


In Erickson v. Sibble, the Plaintiff was injured as a passenger on a transit bus when the bus driver slammed on the brakes to avoid running a red light. The Plaintiff consequently brought an ICBC claim for damages resulting therefrom. An issue arose as to whether or not the Plaintiff herself should also be held to be partially responsible for the accident. The Court would eventually rule that the Defendant bus driver was 75% responsible for the losses incurred by the Plaintiff, and the Plaintiff 25%. The Court commented on the principle of apportionment of liability.


[77]        Where two persons combine to cause a loss, liability is apportioned.  Apportionment is governed by theNegligence Act, R.S.B.C. 1996, c. 333.


[78]        In assessing apportionment, the court examines the extent of blameworthiness, meaning the degree to which each party is at fault and not the degree to which each party’s fault has caused the loss.  The task of the court is to evaluate the fault and blameworthiness of those involved and not to assess the degrees of causation.  That distinction is fundamental to the concept of apportionment.


[79]        In Aberdeen v. Langley Township, 2007 BCSC 993 (CanLII), 2007 BCSC 993, rev’d in part, 2008 BCCA 420 (CanLII), 2008 BCCA 420, Mr. Justice Groves enumerated the following factors as relevant in assessing relative degrees of fault, at paras. 62-63:


1.      The nature of the duty owed by the tortfeasor to the injured person …

2.      The number of acts of fault or negligence committed by a person at fault

3.      The timing of the various negligent acts.  For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault

4.      The nature of the conduct held to amount to fault.  For example, indifference to the results of the conduct may be more blameworthy … Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis …

5.      The extent to which the conduct breaches statutory requirements.  For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy. . .

6.      the gravity of the risk created;

7.      the extent of the opportunity to avoid or prevent the accident or the damage;

8.      whether the conduct in question was deliberate, or unusual or unexpected; and

9.      the knowledge one person had or should have had of the conduct of another person at fault.


[80]        After surveying the authorities, his Lordship continued at para. 67 with this summation of the approach to be taken in assessing the relative degree of blameworthiness of the parties:


Thus, the key inquiry in assessing comparative blameworthiness is the relative degree by which each of the parties departed from the standard of care to be expected in all of the circumstances. This inquiry is informed by numerous factors, including the nature of the departure from that standard of care, its magnitude, and the gravity of the risk thereby created.


[81]        The defendants were entrusted to safely transport Ms. Erickson, whom Mr. Sibble could see required the aid of a cane.


[82]        In my opinion, Mr. Sibble’s negligent conduct created a much greater risk and, given the demanding standard of care on the defendants, was exceedingly more at fault and blameworthy than Ms. Erickson’s poor judgment.


[83]        I apportion liability 75% against the defendants and 25% against Ms. Erickson.

Unable To Apportion Liability Precisely, Court Apportions Liability Equally

In Dimen v. Binning,  the Plaintiff and Defendant were involved in a motor vehicle collision. The Plaintiff subsequently brought an ICBC claim for various forms of damages, including pain and suffering, loss of income, loss of real estate income, and out of pocket expenses. The Plaintiff maintained he was trying to turn left into an entrance to a shopping mall. Upon seeing the oncoming Defendant in the curb lane, the Plaintiff stated that he stopped in the centre lane, and that the Defendant switched lanes from the curb lane into the centre lane, at which point there was a collision between the two vehicles. The Defendant maintained that he was in the centre lane the entire time. The Court eventually apportioned liability between the Plaintiff and the Defendant, holding each to be 50% negligent.


[8]         On this evidence, as the testimony of the plaintiff is supported by two independent witnesses, I find as a fact that the semi-trailer truck was not in the centre northbound lane as the defendant testified.  If it had been, it would not have ended up straddling the line between the two lanes after the accident.  As the defendant testified he turned left when he saw the plaintiff’s vehicle, the fact that he ended up straddling the two northbound lanes is consistent with his initially being in the curb lane.


[9]         I also find that each driver was in a position to see the other vehicle.  The plaintiff testified that for a very short period of time his view of the semi-trailer was blocked by a northbound SUV.  There is a heavy onus on the driver of a left turning vehicle, given the wording of s. 166 of the Act, to make sure that the roadway is clear.  Regardless of the lane in which the semi-trailer was travelling north, it was an impediment to the plaintiff crossing.  On the other hand, it is not disputed that although the plaintiff ventured into the northbound lane, he stopped before he reached the dividing line between those two lanes.  If the semi-trailer truck had not moved to the left, it could have continued northbound in the curb lane and there may have been no accident.  In the circumstances, I find both drivers at fault.  I am unable to apportion liability precisely on this evidence.  Therefore, pursuant to s.1 (2) of the Negligence Act, R.S.B.C. 1996, c. 333, I apportion liability equally.