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.
