The claimants’ 26 year old daughter was killed in a horrific single car accident, when she was a passenger in a car driven by her live-in boyfriend, the defendant.  The boyfriend had been smoking marijuana, consuming a great deal of alcohol and driving with extreme recklessness. This claim was brought by the family under the Family Compensation Act, RSBC 1996, c 126. (Park v. VW Credit Canada Inc.,2017 BCSC 1733)

At the beginning of the trial the boyfriend formally admitted that his negligence was the sole cause of the accident obviating the further participation of the Insurance Corporation of British Columbia, ICBC, as a defendant representing an alleged unidentified driver. The boyfriend however alleged is that she rode with him when she knew or ought to have known that it was unsafe to do so due to his consumption of alcohol.  His blood alcohol concentration was very high, nearly three times the legal limit.

The judge was satisfied on a balance of probabilities that the boyfriend consumed a sufficient amount of alcohol in the presence of the deceased daughter to make it unreasonable for her to drive with him. The judge said that the deceased must be taken to have known what she was doing, which was spending several hours with her boyfriend while he was drinking significant amount of alcohol, followed by driving.  This constitutes a failure to take reasonable care for her own safety.

In finding the deceased daughter 20% at fault for her own death the judge stated,

[101] As we have seen, Tyrwhitt-Drake J attributed 30% of the fault to the plaintiff passenger in Ridsdale.  A like amount was attributed on a similar basis to the plaintiff passenger in Houlton v MacKinnon, 2005 BCSC 41.  In Grewal, the plaintiff was found to have been 35% at fault.  A assessment of contributory negligence to the degree of 50% was upheld in Pharness (Guardian ad litem of) v Wallace, 1989 CarswellBC 1365 (CA), but there, the injured plaintiff’s negligence consisted of failing to wear a seatbelt as well as travelling with the defendant when he was impaired and his vehicle was defective.

[102]  In this case, taking into account the egregious fault of Mr. Ouh (smoking marijuana, consuming a great deal of alcohol and driving with extreme recklessness), I consider Song-Yi’s relative degree of fault to be considerably less, and I apportion fault 20% to her and 80% to Mr. Ouh. 

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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