This personal injury case involved in a motor vehicle collision that occurred on Highway 97 North near Summit Lake, BC. when the claimant hit into a parked vehicle that had lost control earlier(Hart v. Jacobsen, 2014 BCSC 704 ). Despite the ice and snow the claimant told the ICBC adjuster he was driving at 80 to 85 km. This statement appears to have caused ICBC to blame him for the accident. The judge found however that his vehicle was well equipped for Northern travel and he had engaged his four wheel drive before the accident.
The judge did not put a great deal of weight on what the claimant told the ICBC adjuster at that time because he was in obvious pain from his injuries and, “while he was not keen on giving the statement he believed that he did not have an option to delay it. He testified that he was nauseous, on medication, was having difficulty with his memory, suffering headaches and possibly a concussion. Additionally, and adding to his emotional state, his wife had collided with another vehicle in the ICBC parking lot.”
The claimant conceded that he was probably going too fast for the conditions but the Judge found that this meant the claimant would have slowed to a crawl and thus moved safely past the defendant had he known that the defendant was parked in the northbound lane facing south and was scraping away at his wheel well.
It was not clear just how much of the parked vehicle was in the northbound lane but the judge found that the claimant was facing an immediate hazard. As he defendant has created the hazard and done nothing to warn the claimant the judge found him 100% at fault for the accident. As the judge pointed out at paragraph 36 of his decision:
The defendant was not just momentarily parked in this hazardous position but remained there for some 15 minutes, all the while scraping away at the wheel wells with a tool not designed for such work. Thus we have a vehicle, substantially in the northbound lane with a pedestrian walking around it posing an additional hazard to northbound traffic. The Kia’s head lights were on but the hazard lights were not. Given the curve and hump, the true nature of the hazard would not be readily apparent to the driver of a northbound vehicle until he rounded the curve and was so close to the parked vehicle that a collision was inevitable.
Applying the “agony of collision” doctrine the judge went on to find at paragraph 42:
Given the curve and hump that obscured any clear view of just where the Kia was, he could not appreciate just what hazard was facing him. By the time he was able to see that the Kia was in fact parked substantially in his northbound lane there was almost no time to react. He cannot be faulted for opting to brake as opposed to some other manoeuvre: see Soto v. Peel, 2013 BCSC 409; Ayers v. Singh (1997), 85 B.C.A.C. 307, 69 A.C.W.S. (3d) 207; and Brook v. Tod Estate, 2012 BCSC 1947.
It seems that ICBC may well have accepted this claim early on and without the need for a trial had the claimant not giving a statement at the beginning. It appears that his statement to the adjuster is what caused ICBC the initially deny the claim.
What if the injury claimant had been the one on the side of the road? To understand the opposite view take a read of my review of Skinner v. Fu, 2010 BCCA 321 .
Posted by ICBC Claims Lawyer Mr. Renn A. Holness, B.A. LL.B.