Power v. White, 2010 BCSC 1084
August 5, 2010- This injury claim arising out of a motor vehicle accident that occurred on the Island Highway on Vancouver island, when the vehicle being driven by the injury claimant was rear-ended by an ICBC insured driver. The car accident was created by a deer on the highway which resulted in the claimant making an abrupt lane change and abruptly braking . The lawyer for the injury claimant argued that the other driver is responsible for the accident because he should have been able to stop in time to avoid the car accident. The ICBC lawyer contended that the car accident was the fault of the claimant in making an unsafe lane change, and braking violently while directly in his path.
The most serious personal injury suffered by the claimant in the accident is a torn pectoralis major muscle on his right side. The tear cannot be surgically repaired, and has resulted in ongoing pain and disability, mostly relating to use of his right arm and shoulder.
The judge re-affirmed that driving with due care and attention assumes that one must be on the lookout for unexpected manoeuvres by other drivers. In the judges view the driver causing the injury was aware of the presence of the deer on or very near the highway and ought to have begun braking as soon as the injury claimant began to make the lane change and the collision would have been avoided. The accident also would have been avoided had the other driver been travelling at a lower speed, as he ought to have, given that he was towing a loaded un-braked trailer. The negligence of the other driver led to the collision and he was found 100% at fault.
When deciding the amount to award the claimant for his pain and suffering the judge stated:
” A non-exhaustive list of common factors that may influence an award of non-pecuniary damages are: age of the plaintiff; nature of the injury; severity and duration of pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle. Stoicism of the plaintiff should not reduce the award.”
In awarding the claimant $135,000.00 for pain and suffering the court found the injury claimant has suffered a very significant and permanent loss to the lifestyle he previously enjoyed. Virtually all of his previous physical activities have been severely curtailed. Posted by Mr. Renn A. Holness
Issue: Should a driver be responsible if a deer runs into the road creating the circumstances for a car accident?