In Ferguson v. Wang, the Plaintiff was injured in a motor vehicle collision, and made an ICBC claim. The parties originally agreed to have a determination of liability only. The Plaintiff had originally stopped after dropping someone off. There was a gap between the Plaintiff’s vehicle and another vehicle parked behind the Plaintiff’s vehicle, with both vehicles facing the same direction. The Defendant, traveling in the opposite direction, made a U-Turn, attempting to enter the gap between the two aforementioned vehicles. At the same time that the Defendant was making a U-Turn, the Plaintiff began backing up, and was struck from behind by the Defendant. The Court held the Defendant to be 100% liable for the accident.

 

[41]         In my view, the u-turn performed by the defendant in an attempt to secure a parking spot across the street in a school zone where parents were busy dropping their children off for school was a maneuver fraught with danger.  Moreover, I am satisfied that the plaintiff’s backup lights were illuminated, that the defendant ought to have seen them and that he ought to have anticipated the plaintiff’s vehicle was in the process of reversing into the space the defendant was attempting to move into.  Captain MacPherson saw these backup lights.  Had the defendant been keeping a proper look out, he would have seen them as well.

 

[42]         The defendant has failed to satisfy me that the plaintiff was contributory negligent in any way.  

 

[43]         The law does not require perfection on the part of the plaintiff to guard himself against every conceivable eventuality.  He must only guard himself against those eventualities that a reasonable person ought to have foreseen, within the ordinary range of human experience.  The plaintiff was entitled to proceed on the assumption that all other vehicles would do what is there duty, namely observing the rules of traffic: Pacheco (Guardian ad Litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11; Dechev v. Judas, 2004 BCSC 1564 at para. 22.

 

[44]         The plaintiff checked the area around his vehicle by looking in his side and rear view mirrors and by looking over his right shoulder.  He did all that he ought to have done.  A reasonably prudent driver should not be expected to anticipate that while in the course of backing up, another vehicle will perform an aggressive and illegal u-turn from the other side of the street in an attempt to occupy the space behind him.

In Stanikzai v. Bola, the Plaintiff was injured in a motor vehicle accident after rear-ending the Defendant’s vehicle. The Plaintiff suffered injuries, and brought an ICBC claim against the Defendant. The court heard conflicting versions from the Plaintiff and the Defendant as to how the accident transpired, and ultimately accepted the testimony of an independent witness, who stated that the Defendant quickly moved into the Plaintiff’s lane as the Defendant was attempting to make a U-turn in front of the Plaintiff’s vehicle. Although it is usually the case in the event of a rear-end accident that the party, in this case the Plaintiff, that causes the rear-end collision is at fault, in the circumstances of this case, the Court held the Defendant to be 75% responsible for the collision.

 

[6]             The only independent witness called was Mr. Tiwana, a truck driver who was behind the plaintiff in the left lane. Like the plaintiff, he described the defendant’s van moving into the right lane, then quickly attempting a u-turn in front of the plaintiff’s vehicle, leaving the plaintiff no time to react. However, one significant difference between the plaintiff’s evidence and that of Mr. Tiwana is that Mr. Tiwana said he saw the left turn signal on the defendant’s vehicle before what he described as the attempted u-turn.

 

[7]             There is no doubt that when one vehicle hits another from behind, the onus is on the driver of the rear vehicle to show that the collision was not caused by his or her fault: Barrie v Marshall, 2010 BCSC 981. A driver following other vehicles is expected to keep his vehicle under sufficient control to be able to deal with sudden stopping or slowing of the vehicle in front: Pryndik v. Manju, 2001 BCSC 502.

 

[8]             But while liability for a rear end collision usually rests entirely with the following driver, that is not an invariable result. For example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to be equally at fault for a rear end collision. In that case, the front driver stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the court found that the rear driver was travelling either too fast or too close behind to stop when confronted with the hazard.

 

[9]             The plaintiff and the defendant in this case give conflicting evidence that cannot be reconciled. In attempting to determine what happened, on the balance of probabilities, I prefer the evidence of the only independent witness, Mr. Tiwana. He describes the defendant moving suddenly into the plaintiff’s lane in circumstances where the plaintiff did not have time to stop. That is not consistent with the defendant’s evidence of the lapse of time between her lane change and the collision and I do not accept her evidence on that point. I do accept her evidence that she had no reason to be making a u-turn and was not attempting one, but I find that her turn to the left on impact likely created the mistaken impression of a u-turn.

In Kolberg v. Gileff, the Plaintiff was injured as a motorcyclist when he collided with another vehicle, and subsequently brought an ICBC claim for damages for non-pecuniary damages, loss of income, diminished earning capacity, out of pocket expenses, and cost of future care. The Plaintiff and Defendant had competing versions of what had transpired. The Plaintiff maintained that he had successfully completed a U-turn, before straightening out and proceeding in the opposite direction. The Defendant alleged that the Plaintiff had made a U-turn from the shoulder of the road, but that the Defendant did not have sufficient time within which to avoid colliding with the Plaintiff. Each of the parties placed the point of impact of the vehicles in different lanes, one heading in each direction. Although there were many witnesses to the collision, as well as some photographs, there was no accident reconstructionist evidence or analysis. The Court apportioned 75% liability to the Plaintiff, and 25% liability to the Defendant.

 

[44]           I also conclude that apart from it being an unsafe area to attempt a u-turn, the plaintiff either did not properly check for traffic, or if he did failed to observe the defendant approaching when he ought to have.  I find it difficult to understand how both the plaintiff and Mrs. Krohler could make the turn they describe and be proceeding in the westbound lane without ever seeing the defendant’s vehicle until a split second before impact.

 

[48]           The plaintiff in my view was clearly negligent.  However there remains an issue of whether the defendant was also negligent in the cause of the collision or if the “agony of collision” created by the plaintiff’s actions absolve him of responsibility.

 

[51]           I find that it has been shown on a balance of probabilities the defendant was negligent by not initially reducing speed and exercising a more vigilant look out when the positioning or movement of the plaintiff’s motorcycle indicated need of caution.  The defendant was not in “agony of collision” as when he first saw, or should have seen the motorcycle, as there was time for a reasonable person to have reacted by slowing or turning right if required.

 

[53]           I conclude the negligence of the plaintiff was by far the major cause for the collision.  The defendant’s negligence however was a contributing factor.  I apportion liability for the collision 75% to the plaintiff and 25% to the defendant.

 

 

In Dhah v. Harris, the Plaintiff was traveling northbound on his motorcycle. A truck, traveling southbound, made a u-turn to go northbound, when the Plaintiff struck the side of the truck. The driver of the truck claimed that he did not see the Plaintiff. The Plaintiff brought an ICBC claim for his injuries, and the Defendant denied fault. The Court found the Defendant to be 100% liable.

 

[27]         In any event, the question of whether or not the defendant was in violation of the statutory provision is not determinative. The question is whether the defendant kept a proper lookout and took appropriate care in the circumstances:  Dickie Estate v. Dickie and De Sousa(1991), 5 B.C.A.C. 37 (C.A.).

 

[28]         In Dickie, the plaintiff was in the process of making a u-turn across a double solid line when he was struck by the defendant who was approaching at an excessively high speed. The Court of Appeal said at para. 12:

 

[The plaintiff] was engaging in a manoeuvre that was fraught with danger. He placed himself and the oncoming drivers in a position of risk. That being so, in my opinion, the law required of him a very high degree of care which would manifest itself in a sharp lookout before he crossed over the solid double line into the northbound lanes on the causeway. There was nothing to prohibit Dickie from seeing the oncoming De Sousa vehicle before his vehicle entered the northbound lanes of travel.

 

[29]         I find that the defendant in this case was similarly “engaging in a manoeuvre that was fraught with danger”. He was making a left turn across a double solid line at a point where there was no intersection or driveway—at a point where oncoming drivers would have no reason to anticipate vehicles entering the roadway. He knew there was a curve to his right and knew or ought to have known that oncoming drivers might have limited visibility. The location and the nature of his manoeuvre required him to pay particular attention to the ditch across the road and I have found that he did so at the expense of being attentive to oncoming traffic.

 

[30]         I also note that the Court in Dickie referred to the need for a sharp lookout before the driver crossed the centre line and before he entered the northbound lanes. In the circumstances of this case, it was not sufficient for the defendant to form an opinion about the safety of his manoeuvre before he entered the roadway. He says that he looked right at that point, but, in my view, his duty to keep a sharp lookout continued beyond that. He gave no evidence of having looked again before crossing the centre line; in my view, reasonable prudence required that he should have done so.