This Court of Appeal personal injury case, Ferrill v. Cockburn, involved an accident at an uncontrolled intersection. The appellant was driving a vehicle and attempted a left turn when he collided with the respondent, who was riding a motorcycle at an excessive speed. The jury at trial apportioned liability equally between both parties. The appellants challenged this verdict, arguing that the respondent should have been held 100% at fault due to his excessive speed.
Grounds for Appealing Findings of Fault
The appellants presented two main grounds for appeal:
- Jury’s Apportionment of Fault – The appellants argued that the jury’s decision was perverse and based on a misapprehension of the law or evidence. They contended that the jury should not have divided the liability equally and that the respondent’s excessive speed should have placed full liability on him.
- Jury Instructions – The appellants contended that the judge’s instructions to the jury were improper in two ways: (a)The judge instructed the jury on the doctrine of “last clear chance” despite it not being raised by the defense; and (b)The judge stated that the defendant was not entitled to assume that the plaintiff would obey the speed limit, and that the plaintiff could retain the right-of-way even if speeding.
Doctrine of Last Clear Chance
The “last clear chance” doctrine, addressed in this case, is a legal principle that allows a negligent plaintiff to recover damages if the defendant had the final opportunity to avoid the accident but failed to do so. The appellants argued that this instruction was unnecessary and confusing, but the appeal court found that the judge acted prudently in addressing potential jury confusion.
However, in the previous case of Skinner v. Fu, 2010 BCCA 321, the court ordered a new trial because the trial judge relied on the doctrine of last clear chance. In Skinner, the judge’s use of the term “proximate cause” , diverted the analysis from the correct approach, the “but for” test. That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him. The position of the appellant was that the judge implicitly applied the old common law rule, known as the last clear chance doctrine (that a plaintiff’s claim is barred if he could have avoided an accident with the exercise of reasonable care), instead of apportioning fault, as he should have done, under the Negligence Act.
Assessment of Liability
The appeal court emphasized that interference with a jury’s verdict should only occur in extreme cases. The jury’s decision to apportion liability equally was supported by evidence showing negligence on both sides. The appellant did not see the motorcycle when starting the turn, and the respondent was speeding and not paying full attention to the road. The court cited previous cases, supporting that liability apportionment involves complex assessments best handled by a jury. The Court of Appeal did not however refer to the Skinner case or clarify whether the last clear chance doctrine is still good law.
Corrective Jury Instructions on Assumptions
The appellants also argued that the trial judge wrongly instructed the jury that the defendant could not assume other road users would obey the speed limit. However, the appeal court held that the instruction was correct, especially given the nature of an uncontrolled intersection, where different rules apply compared to intersections regulated by traffic signals.
In conclusion, the Court of Appeal dismissed the appeal, affirming the jury’s apportionment of fault and the trial judge’s instructions. This case does not clarify the application of the “last clear chance” doctrine or its utility when balance is required in apportioning liability in traffic accident cases.
