If you are injured in a motor vehicle accident, your compensation may be reduced if you are partially at fault for the collision.
In British Columbia, the Negligence Act states that each party is responsible for compensation in proportion to his/her degree of fault for the motor vehicle accident and injuries that are caused by it. This is known as Contributory Negligence.
In order for ICBC to successfully rely on the defence of Contributory Negligence, it must show that the injured claimant was partially at fault for the motor vehicle accident which caused his/her injuries. Apportioning fault involves apportioning the respective blameworthiness of each driver, rather than assessing the extent to which the loss was caused by each driver’s conduct.
The leading case on analyzing and apportioning fault in Contributory negligence is Cempel v. Harrison Hot Springs Hotel Ltd. In this decision, the the British Columbia Court of Appeal states that apportioning fault involves an evaluation of the degree of risk created by each driver. The fault is then apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties. As stated by the Court of Appeal in this case:
“In the apportionment of fault there must be an assessment of the degree of the risk created by each of the parties, including a consideration of the effect and potential effect of occurrences within the risk, and including any increment in the risk brought about by their conduct after the initial risk was created. The fault should then be apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties.”
The recent case of St. Denis v. Turner 2020 BCSC 603 considers the defence of Contributory Negligence relied on by ICBC. In this case, the injured claimant suffered significant and serious injuries in a motor vehicle accident. The injured claimant was driving in the opposite direction to the defendant. The defendant was intending to turn left and the injured claimant was intending on driving straight through the intersection. There were 3 lanes in each direction. In the direction the injured claimant was driving, traffic was congested. There were cars stopped due to traffic ahead in the 1st and 2nd lanes. The injured claimant was in the 3rd lane (curb lane) that was not congested. The defendant was “waved through” by drivers that were stopped in the 1st and 2nd lanes and he proceeded to turn left. While he was turning left, he collided with the injured claimant’s vehicle that was traveling straight. Both driver’s testified that they did not the other until just prior to impact. Independent witnesses testified that the injured claimant did not slow down before entering the intersection. Based on the evidence, the trial judge concluded that if she had slowed down, she would have seen the defendant’s vehicle thereby enabling her to have avoided the motor vehicle accident. The trial judge apportioned 40% liability to the injured claimant and 60% to the defendant. The defendant was given a greater degree of fault because he had a clear obligation to yield to oncoming traffic while turning left.
As a result of the motor vehicle accident, the injured claimant suffered significant injuries including a brain injury leaving her with permanent cognitive difficulties and related psychological conditions including depression and anxiety. In total, the trial judge awarded the injured claimant $440,199.00 in damages for pain and suffering, loss of income, future care cost and special damages. This was then reduced by 40%, the amount of fault apportioned to the injured claimant, which then reduced her damage award to $264,120.00.