Siskinds LLP personal injury lawyer, Victoria Edwards, was recently published in The Lawyer’s Daily. In this article, Victoria examines how the British Columbia Court of Appeal partially allowed an appeal of a motor vehicle collision between a bicycle and van in the case of Orr v. Graemond Holdings Ltd.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – The Lawyer’s Daily – Posted: October 31, 2022
In Orr v. Graemond Holdings Ltd.  B.C.J. No. 733, the British Columbia Court of Appeal partially allowed an appeal of a motor vehicle collision between a bicycle and van.
In November 2016, Jason Orr (the plaintiff/respondent) was riding his bicycle with traffic on the north sidewalk of Bowen Road in Nanaimo, B.C. Carol Christofferson (the defendant/appellant) was exiting a car dealership in a van with the intent to turn onto Bowen Road. Christofferson saw Orr approaching, but when another motorist paused and gave him a signal to pull into the turning lane, Christofferson pulled onto the sidewalk in Orr’s path. Orr collided with the van and sustained serious personal injuries.
The trial judge found that Christofferson was 100 per cent liable for the collision and that there was no contributory negligence on the part of Orr.
Among the damages awarded, the trial judge also awarded past income losses of $20,000 net despite a lack of evidence of Orr’s cash earnings, which he had not reported on his income taxes. With respect to future income loss or future earning capacity, the trial judge concluded that Orr’s capacity to earn income was affected by his residual injuries. Though Orr had consistently chosen to work under capacity, the trial judge made a substantial award for loss of future earning capacity.
Issues on appeal
The defendant appealed the trial judge’s decisions. The British Colombia Court of Appeal considered the following issues
- Did the trial judge err by finding that by operating a bicycle on a sidewalk in breach of s. 183(1), (2)(a) and (2)(c) of the Motor Vehicle Act, R.S.B.C. 996, c. 318, without proper care and attention, the respondent caused or contributed to the collision?
- Did the trial judge err in assessing damages for past and future loss of earning capacity on a fundamentally erroneous and inadequate factual basis, and in performing a mathematical calculation to assess future capacity loss, rather than performing an overall assessment taking into account all of the evidence and applicable contingencies?
The appeal was allowed in part. The award for loss of future earning capacity was adjusted by applying the statutory discount rate and the respondent’s award was reduced by 25 per cent to account for his contributory negligence.
Issue 1: Contributory negligence – bicycle on a sidewalk
The trial judge identified the correct test while addressing the conduct of the respondent – a cyclist on the sidewalk against traffic must exercise a heightened degree of caution. However, the trial judge failed to apply that standard.
The parties were obligated to observe the rules set out in the Motor Vehicle Act. While failure to do so is not determinative of evidence, it is some evidence of failure to take appropriate care.
The appellant driver was obligated to stop the vehicle immediately before driving onto the sidewalk or the sidewalk area extending across the driveway and yield the right of way to a pedestrian on the sidewalk or sidewalk area. Having yielded, the driver must not cross the sidewalk unless that can be done safely. This obligation is set out in s. 176(1) of the Motor Vehicle Act.
The respondent cyclist was prohibited from operating a cycle on the sidewalk unless authorized by a bylaw or otherwise directed by a sign.
There was no reason to interfere with the trial judge’s conclusion that the appellant was negligent. It was open to the trial judge on the evidence to find the appellant at fault for advancing without looking to his right once again to ensure that it was safe to do so.
With respect to the appellant’s contribution to liability, the trial judge was correct for holding that a breach of the statutory obligations alone did not amount to negligence, but the respondent was required to take particular care. The respondent’s failure to wear a helmet or ring a bell did not cause the appellant to be unaware of the respondent’s presence. Based on the appellant’s testimony, he was aware of the respondent approaching on his bicycle. Similarly, while the failure to wear a helmet is a failure to take reasonable care for one’s own safety, the failure was not causally related to the accident or to the respondent’s injury in this particular case.
The crucial question was whether the trial judge erred in law in concluding that the one measure taken by the respondent, “eyeballing” the appellant to ensure that he had been seen, was sufficient to discharge the duty to take care for his own safety. The trial judge did not expressly consider the respondent’s conduct after he had satisfied himself that he had been seen by the appellant, when he was still half a block away. In the interval between when the driver last looked at the cyclist and the collision, it was apparent that, while each had seen the other, neither party knew, nor could be confident of, the other’s intentions.
Having been seen did not make the cyclist the dominant driver. He was not entitled to require the appellant to give him the right of way while riding on the sidewalk against traffic. The duty to make way for those using the sidewalk and driveways in compliance with their statutory duties underlies the obligation to exercise a heightened degree of caution.
In concluding that the respondent had exercised a heightened degree of care by simply ensuring he had been seen, the trial judge failed to consider the same factor in respect of the respondent that led him to find the appellant was negligent, namely, that it is negligent to misjudge whether it is safe to enter an intersection when one does not have the right of way. That is an error in principle, and has been held to amount to an error of law justifying appellate intervention.
Because the Court of Appeal characterized the relative blameworthiness of the respondent as significantly less than that of the appellant, liability was apportioned 75 per cent to the appellant and 25 per cent to the respondent.
Issue 2: Assessment of damages
Past income loss
The appellant contended that the judge erred in not requiring the respondent to discharge the relatively heavy onus of proof advancing an income loss claim that is inconsistent with his income tax returns. The appellants argued that the evidentiary foundation was inadequate, and the award should be set aside for that reason.
The Court of Appeal concluded that the trial judge did require the respondent to discharge the relatively heavy onus of proof in this circumstance. The evidence adduced at trial were estimates of the respondent’s pre-accident income. The trial judge rejected the highest estimates and carefully considered the available evidence. Though the parties were left without a mathematical calculation that may have served as the basis of the award, they acknowledged that an award is an assessment, not a calculation. There are many variables and much discretion that is involved in such an assessment. The award was within a range supported by the evidence.
Future income loss
Similarly, though the future income loss award was based on estimates, the evidence supported the trial judge’s finding that the respondent’s capacity to earn income had been damaged by the accident.
Discounting and contingencies
The Court of Appeal did agree with the appellant’s submissions that the trial judge failed to make a discount to reflect that the future income loss was a lump sum intended to compensate for a future stream of earnings, and to account for negative contingencies. The appropriate discount rate was set out in the Law and Equity Act, R.S.B.C. 1996, c. 253 at s. 56 and the Law and Equity Regulation, B.C. Reg.352/81, which set that rate at 1.5 per cent per annum.
The award should have been so adjusted. With respect to contingencies, there was nothing to suggest that the trial judge did not already account for contingencies when assessing the award.
The appeal was allowed in part. The award for loss of future earning capacity was adjusted by applying the statutory discount rate, and the award was further reduced by 25 per cent to account for the respondent’s contributory negligence.