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Contributory Negligence

I am involved in a motor vehicle crash and it is alleged that I am partially at fault. How will the court apportion liability? Also, how will this impact the amount that I am awarded?

In the recent case of McNeilly v Pollard (2016 BCSC 1604), a logging truck and a pick-up truck were travelling in opposite directions on an icy logging road northeast of 100 mile house. While rounding an icy corner, the logging truck crossed over onto the opposite side of the road in order to navigate the corner in the icy conditions. The pick-up truck, driven by the plaintiff, was rounding the corner at the same time and was forced to swerve his truck off the right side of the road, in a effort to avoid a collision with the logging truck. Although a head-on collision was avoided, the logging truck’s trailer collided with the rear end of the pick-up which could not swerve entirely off the road in time. Following the crash, the driver of the pick-up truck sued the driver of the logging truck, alleging that the logging truck driver was entirely at fault. In regards to liability, Thompson J. found that both drivers were travelling at unsafe speeds, and the collision was a product of both driver’s negligence. Further, Thompson J. could not determine different degrees of fault resulting in liability being apportioned 50-50 between the two driver’s as per the section 1 of the Negligence Act, R.S.B.C. 1979, c. 333. This apportionment of liability resulted in the plaintiff pick-up driver being entitled to only 50% of the damages award assessed to him by the judge.

[28]         The only proven breach of the standard of care is that each driver was not exercising due care: each was going too fast on a narrow curve on an icy logging road. The remaining liability issue is apportionment. Section 1 of the Negligence Act, R.S.B.C. 1979, c. 333, provides:

Apportionment of liability for damages

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3) Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed.

[37]         I conclude that Mr. McNeilly and Mr. Pollard are equally at fault for the MVA. It was not practicable for Mr. Pollard to confine his trailer to the right hand half of the travelled portion of the curve at kilometre 34. Mr. McNeilly knew that loaded logging trucks could be coming down from the cut block. Mr. Pollard knew there might be vehicles coming the other way. On that narrow and icy curve, it was incumbent on each driver to exercise great caution. Neither did so. Each was driving much too fast to bring their vehicle to a stop if faced with the foreseeable event of encountering an oncoming vehicle on the curve. Although Mr. Pollard was driving slower than Mr. McNeilly, Mr. Pollard had less ability to brake and his vehicle occupied the full width of the curve. Each driver maintained control of their vehicle after the emergency presented itself and each did the best they could in a situation they created together by their negligence. Having regard to all the circumstances of the case, it is not possible to establish different degrees of fault and liability is apportioned equally.

[77]         I am satisfied that this assessment is fair and reasonable to both the plaintiff and the defendants. Fault for the MVA is apportioned equally; the plaintiff is entitled to recover 50 percent of the assessed damages. Accordingly, the plaintiff is entitled to judgment against the defendants for $170,955, plus court order interest.  

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