In Dizon v. Losier, 2017 BCSC 431, a plaintiff was injured after being rear-ended by the defendant. The accident occurred at an intersection with 2 left turning lanes and the plaintiff was attempting to make a left turn. While attempting to make the left turn the light changed to amber and the plaintiff, not believing he could complete his turn in time, braked. The defendant, who was intending to proceed through the intersection, hit the back of the plaintiff’s car.
The defendant owned two vehicles had inadvertently re-insured the wrong one. At the time he hit the plaintiff, his insurance had expired the day before. Because the defendant’s vehicle did not have insurances at the time of the accident, ICBC would not cover him with respect to the accident and he was forced to represent himself at trial.
The plaintiff’s injuries, although moderately serious, had mostly resolved by the time of trial and Mr. Justice Russell was called to determine liability and the quantum of damages. The defendants called a “witness” to the accident who gave evidence that the plaintiff had stopped suddenly for no reason. The witness denied that he had never met the defendant before the accident and said that he had responded posted notice requesting witnesses.
However, on cross examination, it was revealed that the “witness” and the defendant were actually family friends and that the statement of the witness was completely untrue. As this was perjury, the defendant tendered an apology the court.
The court gave no weight to the witness’s testimony and was left to determine liability on the available evidence. Based on that evidence, Mr. Justice Russell found the plaintiff partially at fault for the accident, citing the test for contributory negligence set out by the Court of Appeal in Wormald v. Chiarot, 2016 BCCA 415:
“ The analysis for contributory negligence involves two considerations: (1) whether the plaintiff failed to take reasonable care in her own interests; and (2) if so, whether that failure was causally connected to the loss she sustained: Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCCA 23 at para. 37. To satisfy the requirement of a causal connection between the plaintiff’s breach of the standard of care and the loss sustained, the defendant must establish more than that but for her negligence, the damage would have been avoided. The plaintiff’s conduct must be a “proximate cause” of the loss in that the loss results from the type of risk to which the appellant exposed herself: Bevilacqua v. Altenkirk, 2004 BCSC 945 at paras. 39–43 (per Groberman J., as he then was). In other words, the plaintiff’s carelessness must relate to the risk that made the actual harm which occurred foreseeable: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219,  6 W.W.R. 233 (C.A.) at para. 13.”
Although the defendant’s evidence was given little weight, the Mr. Justice Russell found that the plaintiff’s sudden breaking contributed to the accident. He also found that the defendant was 85% responsible on account of following too closely.
The plaintiff was awarded $39,884.66 for non-pecuniary, past wage loss and special damages as well as costs.
Despite the fact that the plaintiff was successful in winning damages, he will still have to collect them. As the defendant was not insured by ICBC, the plaintiff will be forced into having to collect money from personally from the defendant. If the defendant has no assets or no income, the plaintiff might be unable to collect on his judgment.
If you or anyone you know has been injured in a car accident, give thegoodfirm lawyers a call at 604.264.5550