Skinner v. Fu,2010 BCCA 321
The injury claimant rear-ended a vehicle when the other driver stopped without warning in the right lane of a highway. A personal injury claim from the car accident was originally dismissed by the court even though the trial judge found the driver that had stopped on the highway after hitting a coyote was negligent. ICBC denied the claim despite the fact the other driver failed to show up for court.
The Court of Appeal concluded the trial judge was wrong in failing to attribute any fault to the driver that had stopped his vehicle on the highway. The “last clear chance analysis” that lead the judge to dismiss the injury claim is no longer good law. Essentially the trial judge was saying that because the claimant had the last chance to avoid the accident the other negligent driver has no fault. Fortunately as of the writing of this post that is not the law in British Columbia. As the Court of Appeal stated:
“[22] In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent. That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23). The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis. If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident. ”
At the time of this review, April 29, 2014, this case was still good law and has been considered twice.
Posted by personal injury lawyer Mr. Renn A. Holness
Issue: Should the person that has the last chance to avoid an accident be 100% at fault?
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