What does the world of personal injury look like beyond ICBC Claims? Moreover, what does it mean for an injury to have been reasonably foreseeable?
The bulk of our practice area might be automobile collisions, but personal injury lawyers also handle injury claims arising from all kinds of unfortunate events. In reasons released this week, Justice Dley considered who was at fault for a crash between a riderless snowmobile and a fellow who had recently dismounted his own snowmobile and was walking on foot through the snow (Passerin v Webb 2018 BCSC 289). The fellow who was struck by the riderless snowmobile (which had been travelling without its rider at full throttle for a kilometre or so) was really quite badly injured.
The facts were relatively simple. A group of friends headed out snowmobiling together. They spent the morning riding and all was going well. In the afternoon, one of the riders – a Mr. Webb – was pitched from his snowmobile. His snowmobile had a safety mechanism for this kind of situation – the rider was intended to attach a tether cord to their outfit. If the rider fell off, the tether cord would detach from the machine and it would automatically turn off. There were two further safety mechanisms – a kill switch that the rider could press, turning the machine off instantly, and a throttle that operated like a throttle on any similar machine – if the throttle were not engaged, the machine would simply come to a stop within a short distance.
All three of these safety mechanisms failed. Mr. Webb did not have the tether cord attached to his outfit, he did not have time to hit the kill switch before he was tossed from the machine, and the throttle had been locked into the default position. It was particularly his failure to wear the tether cord that led Justice Dley to find him 100% responsible for the plaintiff’s injury.
One interesting piece of law – being the cause of something (in the sense of the butterfly effect) isn’t enough to be legally responsible for the consequences. Amongst a few other things, the consequences of one’s actions need to be ‘reasonably foreseeable.’
Say I leave a heavy paperweight on my desk. There’s an earthquake in the night and my paperweight ends up hanging precipitously from some high corner in my office. The next day, a looter rifles through my office, likely looking for my enviable snack drawer. The paperweight falls and strikes the looter on the head, leaving him with a head injury. The looter’s claim for damages against me would probably fail – because while the head injury wouldn’t have happened had I not had such a heavy paperweight, there’s also no way in heck I could have foreseen that having a heavy paperweight would lead to a would-be looter’s head injury.
In this case, the would-be rider of the riderless snowmobile argued that the plaintiff’s injuries were the result of a freak accident, and were not reasonably foreseeable. Justice Dley dismissed that argument:
[39] It would be apparent to a reasonable person standing in the shoes of Mr. Webb that if the tether cord was not fastened to his clothing and he fell from the machine, that the engine would continue running. If the tether cord had been properly affixed and the engine turned off when the cap became dislodged from its post, the throttle being stuck would have been immaterial. Proper use of the tether cord would have likely prevented damage to Mr. Passerin. It would not be far-fetched for a reasonable person to foresee that an unmanned and moving snowmobile was a real risk in an area frequented by other snowmobilers.
[40] I adopt the words of the Court in Assiniboine at para. 13:
…The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable. In the case at bar I would hold that the damage was of the type or kind which any reasonable person might foresee. …
[Emphasis added].
[41] I, therefore, conclude that Mr. Passerin’s damage was caused by the defendant’s breach of the standard of care as the damage was foreseeable and not too remote.
0 Comments