If you have been injured in a motor vehicle accident, yet there never was any impact with the other vehicle, can you sue for damages and be successful ? Depending on the circumstances, yes you can.

 

In Pang v Dhalla, the Defendant cut sharply into the Plaintiff’s lane, forcing the Plaintiff to stop suddenly. Although there was never any impact, the Court nonetheless awarded damages, commenting that:

 

[6]   The defendant testified that she was stopped on Fir Street behind vehicles making a left turn onto 12th Avenue. She stated in direct examination that she looked at her rear view mirror, signalled, observed a red car stopped, and then proceeded into the curb lane. She did not check her side mirror, the “blind spot”. She did not sense that anything had happened until Ms. Lee motioned for her to pull over. The defendant spoke with the plaintiff and both looked to see whether there had been any damage to the vehicles. There were no marks or damage to the defendant’s vehicle. Although there were scratches to the plaintiff’s vehicle, the conversation proceeded as though they had been there before. 

 

[7] Based upon this evidence, the plaintiff has not proven that there probably was an impact or collision between the vehicles. At best, the plaintiff hard braked to avoid an accident after the defendant turned into his lane. From the actions of the plaintiff in slowing as it became apparent that the defendant was moving her vehicle into his lane and from the evidence of the defendant, I conclude that the defendant signalled her lane change. It cannot be determined that Ms. Lee was in a position to see or not to see a signal.

 

[8] However, the defendant was negligent in changing lanes before ascertaining that it could be made safely without affecting the travel of another vehicle, in this case, the plaintiff’s vehicle. The defendant had to hard brake to avoid an accident. If the defendant had looked at her blind spot, she would have determined that she could not safely enter the curb lane. Her failure to do so caused the plaintiff to hard brake….

 

In Tierney v GMAC Leaseco Corporation, the Plaintiff was on a motorcycle when he claims that the Defendant, traveling in a car in the opposite direction, cut into his lane, thereby forcing the Plaintiff to take evasive action to avoid an accident. As a result, the Plaintiff ended up striking a building. The Defendant maintained that she never entered the Plaintiff’s lane, and that the Plaintiff simply lost control of his motorcycle. There were no independent witnesses. The Court, largely due to credibility concerns, dismissed the Plaintiff’s claim.

 

[45]  In this case there is no reliable physical evidence. The parties have each given versions that cannot be completely accurate. The witnesses are unhelpful, in that they are all wrong in some particulars, and given that the photographs do not appear to support what they suggest about the scene. They do point up the difficulty of drawing inferences from what they think they saw on the curve at a shallow angle, from a considerable distance, on a flat plane.

 

[46] There is often little use one can make of post-event conduct. People often apologize, for example, for things that are not their fault. It is remarkable however, that if this was, in fact, an incident in which the defendant  was at fault or shares some fault, no one at the scene saw it that way, or was concerned enough to insist the defendant await the police, or to report her involvement to the police when they appeared.

 

[47]  The defendant clearly did not flee, but attended the scene aware that she and her sister were known to the plaintiff and to Chelsea Tierney, and left only after it was clear there was nothing more for them to do. The defendant was never questioned or investigated.

 

[48]  The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

 

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event.

 

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

In Bern v Jung, the Plaintiff cyclist was traveling down a ramp into a parkade, when the Defendant drove towards him in the wrong lane. The Plaintiff was forced to brake sharply, causing him to go over the handlebars and land on the pavement. ICBC’S lawyer argued that the Plaintiff should share some of the fault, however the Court disagreed.

 

[12]           Mr. Jung says that he had seen other people use this shortcut by travelling in the wrong direction.  He used the same shortcut that he had seen others use in order to save time.  Mr. Bern said that although he had been working for the security company for seven years, he had not seen anybody drive in the wrong direction towards the entrance and exit ramp.  The accident occurred shortly after midnight.  There is no direct evidence as to how much traffic could be expected at that time. 

 

[13]           I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow. 

 

[14]           Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

 

[15]           I find that Mr. Jung is 100% liable for the accident on June 21, 2007.