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.
