Personal Injury News: August 2022
By: Andrew Spurgeon
It is summer and the last thing you may wish to be reading about is the latest in personal injury cases; but here is something for you in any event. British Columbia is a place where new and interesting things happen in tort litigation, especially with respect to the area of PI. So I will first spend a brief moment discussing a motor vehicle case where the law results in an absurdity and another where it addresses a tragedy.
Just because I refer to BC as a place where “new and interesting things” occur regularly, I do not mean to imply they are necessarily good things. One such example flows out of the BC legislation that was enacted last year which removed almost all tort rights from victims of motor vehicle accidents.
I use the phrase “almost all” because, despite the fact that effectively all persons hurt in motor vehicle collisions are barred from suing at-fault motor vehicle owners and drivers for the injuries they have suffered in crashes, the Insurance Corporation of British Columbia (ICBC), which is the sole motor vehicle insurer in BC, now retains the right of subrogation against uninsured persons who it asserts may have caused it to pay benefits out to the victims of motor vehicle crashes. An absurd example of how this plays out is in the case of Ben Bolliger.
Mr. Bolliger, who was riding his bike at the time, was struck and injured by a teenager driving his parents’ Mercedes. Under the new auto insurance regime in BC described above, Mr. Bolliger had no tort rights against the teenage driver, or his parents. His compensation was also restricted to prescribed insurance benefits from ICBC.
With respect to the insurer of the car (ICBC), its position was that as Mr. Bolliger was operating an “uninsured vehicle” – a bicycle – when the car hit him. The tort rights against Mr. Bolliger (to the extent he shared in fault) enjoyed by the owner of the car, the ICBC asserted, remained unchanged by the new “no-fault” legislation. Further, ICBC, who was subrogated to the rights of both the driver and owner of the Mercedes, sued Mr. Bolliger to recover the $3,700 in repair costs it incurred in fixing the damage to the Mercedes; the same damage that occurred when Mr. Bolliger’s body came in contact with the unfortunate car.
This story is an affirmation that in BC, like Ontario, our attitudes towards cars and traffic can be absurd, showing us that the car is king and everything else is just roadkill.
Another interesting case from BC is McCormick v. Plambeck, which is a tragic social host liability case involving two teenagers named Calder and Ryan. Calder and Ryan were guests at a party which was hosted by a friend. The friend’s parents, who were aware that there would be drinking at said party, undertook to manage the party hosted at their household. Their management of the party included the following features:
- Alcohol was permitted on the premises, but none was supplied by the host parents.
- Kids who attended with cars had to surrender their keys.
- The hosting parents arranged to drive kids home at the end of the party.
- Kids who arrived on foot could leave on foot, but only if they were not overly intoxicated.
Calder and Ryan both arrived and left from the party on foot. On their journey home from the party, Ryan and Calder got into a car that did not belong to them. Ryan, who was in the driver’s seat, found the key inside the car and drove off with Calder as a passenger. The owner of the car saw the vehicle leave his property and called the police reporting it stolen immediately. Ryan, who had been driving aggressively, failed to negotiate a curve in the road and crashed the car. Both Ryan and Calder were ejected. Ryan died, and Calder was paralyzed.
Calder subsequently sued the owner of the vehicle Ryan stole, Ryan’s estate, and the adult hosts of the party. At the time of the accident, Ryan was an uninsured and unlicensed driver. The lawsuit ultimately proceeded to trial exclusively against the defendants who hosted the party as a “social-host liability” case. The claims against Ryan’s estate and the owner of the stolen car were resolved at the time of trial, and the damages paid, if any, were not disclosed.
At trial, the Court dismissed Calder’s claim against the hosts of the party. There were exceedingly divergent stories told by both Calder, the Defendants and other witnesses. Calder’s evidence was that by the time he vacated the party he was heavily intoxicated, and the hosts of the party should not have let him leave.
When the trial concluded, the trial judge found that:
- The party was organized, monitored and controlled;
- There was both a clear plan to prevent the attendees of the party from leaving the premises in their vehicles while under the influence of alcohol, and a clear plan to deliver them home safely;
- The driver (Ryan) was not intoxicated at the time he left the party.
Calder, as mentioned, asserted in his evidence that he was intoxicated. However, evidence from various other witnesses was at odds with Calder’s version of events. The Court, in assessing the evidence, concluded that Calder’s evidence was a confabulation, and it was subsequently rejected.
Despite assessing Calder’s damages in excess of $5,000,000, the trial judge dismissed Calder’s claim of negligence against the hosts of the party on the basis that the hosts owed no duty of care to Calder, as the harm which Calder actually suffered was not reasonably foreseeable given the circumstances.
Calder appealed to the BC Court of Appeal. His main argument challenged the trial judge’s determination that given the circumstances, the injuries suffered by Calder were not a foreseeable consequence of the social hosts’ behaviour.
In response, in rejecting Calder’s argument, The Court of Appeal said:
In the case at bar, the question is whether the [hosts] ought reasonably to have foreseen that [Calder], who had arrived at their home on foot and left the party on foot, would suffer personal injury from riding in a car being operated dangerously. If the [Hosts] had reason to know that [Calder] and Ryan were impaired and had access to a car, personal injury as a result of dangerous operation of a motor vehicle might have been foreseeable. It would not have been necessary for the respondents to foresee the precise mechanism of injury, whether due to the car leaving the road as it did, colliding with another car, or failing to avoid an object on the road. Nor would it have been necessary for the severity of the injuries to be foreseeable. But on the facts of this case, the foreseeability analysis must be rooted in the circumstances of a 17- and 18-year-old walking home from a party. I see no error in the judge’s finding that it was not foreseeable that Ryan and [Calder] could sustain personal injury from riding in a car being operated in a dangerous manner.
The BC Court of Appeal’s formulation of foreseeability as set out in the above paragraph is instructive and helpful. It essentially stands for the proposition that the ambit of a duty of care owed by a Defendant to a Plaintiff is circumscribed by foreseeability; and for harm to be reasonably foreseeable – thereby establishing a duty of care -- it is not necessary that the precise mechanism of potential damages be foreseeable, but the general mechanism must be.
In this case it was not reasonable to say that the hosts of the party who (1) received a 17 year old at their home, (2) who arrived to the party on foot, and (3) who did not consume excessive amounts of alcohol while at the party, has a duty to prevent that teen from leaving on foot because it was not reasonably foreseeable to the hosts that the teen would get into a stolen car, with another un-intoxicated young man, which resulted in a motor vehicle accident.
A further line of argument of note before the Court of Appeal was that in BC, as in other provinces, the Liquor Control and Licensing Act prohibits any consumption of alcohol by minors and as a result, the prohibition:
“…reflects the legislature’s awareness that any level of impairment makes minors vulnerable to an increased degree of recklessness and physical harm.”
The Court’s Response was:
I would not accede to this submission. Although a minor has neither the right to drink nor the same autonomy interest as an adult, their degree of intoxication is nonetheless a factor that should inform whether harm is reasonably foreseeable. A minor who leaves a party “falling down drunk” is patently more likely to suffer harm than a minor who has consumed very little and is in control of his faculties and reasoning processes. That is not to say that a lesser degree of impairment could not give rise to a duty of care where minors are involved. There is some force to the submission that minors are made more vulnerable by alcohol consumption than are mature adults. The bar for imposing a duty of care on an adult who hosts a party where minors are drinking may thus be lower than it is for those hosting adult guests, but the degree of impairment is not an irrelevant factor. In short, it informs both the nature and the likelihood of harm that can reasonably be anticipated.
Andrew J. Spurgeon is a partner at Ross and McBride LLP. He is also an Elected Bencher of the Law Society of Ontario, and the Chairman of the Board of Directors LawPRO, which is the sole insurance company providing primary liability coverage to all 28,000 lawyers in private practice in Ontario.
He can be reached at:
Ross & McBride LLP
1 King St W, Hamilton, ON
Email: [email protected]
2 Trial Judgment: 2020 BCSC 881; Court of Appeal: 2022 BCCA 219
3 2020 BCSC 881, para. 110
4 2020 BCSC 881, para. 112
5 2020 BCSC 881 para. 159
6 2022 BCCA 219 at para. 20