Liability Analysis -“Common sense is the best approach”

This recent decision referenced as Godbout v. Notter, 2018 BCSC 1043 involved a horrific crash on a highway (Highway 1).  Liability was denied and therefore, this case offers a good analysis on the assessment of liability, and specifically the details of the crash, expert evidence and the Court’s analysis and conclusion on the issue of liability.

This collision involved a semi rig travelling on the highway at 105 km/h and a small vehicle, a Kia.  Unfortunately, the Kia (Defendant vehicle) had lost control of his vehicle, struck the centre barrier.  After impact, the Defendant driver removed himself from the Kia, leaving the said Kia in the fast lane blocking part of the left hand lane on the highway and of course, creating a hazard.  The Defendant driver was standing at the side of the road.  No hazard lights or lights were turned on in the Kia.  It was also dark out.

I would like to highlight some statistics before we go into the analysis of this liability issue in this case.

These interesting facts were gathered by ICBC and stats by expert evidence which were referenced in Quiat v. Armstrong, 2017 BCSC 2155:

  1. The 5 year annual average number of car accidents in BC is 270,000
  2. There are approximately 740 accidents per day, on average
  3. It takes 1.5 to 3 seconds to process what we see and be able to react to a traffic incident; and
  4. With a 3 second warning sign, a potential crash can be avoided.

It is interesting, if it takes 1.5 to 3 seconds to process what we see, would it still be possible to prevent a collision in this instance when operating a semi rig travelling at 105 km/h on a highway?

Mechanical engineers were retained by both plaintiff and defence to analyze the scene of the crash and prepare accident reconstruction reports.  Of course, the evidence differed and were in conflict with the opinions provided.

The Court accepted the factors provided by the Plaintiffs expert and it is interesting to note this data:

Drivers cannot respond instantly to hazards, but rather require a perception-response time (PRT) before responding. PRT can be considered to include four stages:

1) The hazard must be detected,

2) the situation will be identified as a hazardous one,

3) a decision on a response will be made, and

4) the vehicle response is initiated (eg., brake).

In the present incident, the Notter Kia was protruding into the left westbound lane up to the windshield. For an approaching driver, this would constitute a nearly central hazard.

The defence expert report was a report of rebuttal to the facts outlined in the Plaintiff’s mechanical engineer opinion primarily dealing with the estimates of distance, misinterpretation and misapplication by the said Plaintiff expert.

The Court reviewed both reports, and states that all details in both reports are “fraught with assumptions and uncertainties.”  The opinions and analysis of both reports are inconclusive.

Reconstruction of an accident which occurred years before the reports, the circumstances of which would have lasted a mere matter of seconds is bound to be speculative and based upon assumptions that could very well be questioned. In the circumstances, estimates of distance and speed by witnesses are bound to be just that—estimates—which do not lend to a mathematical formula in which one can determine how much time was needed to respond and just how much time Mr. Godbout would have needed to avoid the collision. There are too many assumptions regarding visibility, reaction time and maneuverability to be able to provide an opinion with any degree of certainty.

The Court states “common sense is the best approach.”

The Court reviewed the following cases:

Dalby v. Reece, 84 B.C.L.R. (2d) 146 (S.C) [Dalby] at para. 14.

Ziemer v. Wheeler, 2014 BCSC 2049 [Ziemer]. Counsel emphasized para. 107


[60]         Mr. Notter created a hazard when he lost control of the Kia which resulted in the Kia blocking part of the fast lane while it was dark. He failed to leave lights on or take other steps which may have warned oncoming traffic. These facts were all admitted in the Agreed Statement of Facts.

[61]         At the same time, it is reasonable that Mr. Godbout’s attention was attracted to the vehicle and persons located on the right shoulder of the freeway and that he would take steps, such as changing lanes, to provide clearance from the vehicle and persons in the vicinity of the right shoulder.

[62]         I conclude that Mr. Notter was totally responsible for the accident and that Mr. Godbout was not contributorily negligent. In the circumstances facing him, it was unlikely that there was enough time to be able to take action to avoid the accident by braking and/or swerving around the Kia.

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