B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

MOTOR VEHICLE 2001

• 2001 BCCA 670    Lim v. ICBC
  The trial judge determined, on circumstantial evidence, that the plaintiff established that her husband’s death by drowning was caused by an accident arising out of the use or operation of a vehicle, as required by s. 79(1) of the Revised Regulations (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg 447/83, as amended, and was therefore entitled to no fault benefits under Part 7 of the Regulations. The appellant argued that the trial judge had erred in concluding that the evidence was sufficient to meet the burden of proof to satisfy the two-part test set out in Amos v. Insurance Corporation of British Columbia, and in dealing with its submissions on the burden of proof based on Fontaine v. Insurance Corporation of British Columbia. Held: Appeal dismissed. While certain of the inferences drawn by the trial judge could be said to be speculation, the evidence as a whole satisfied the Amos tests. The trial judge did no err in distinguishing Fontaine, as that case dealt with proof of negligence, which was not in issue in this case.
• 2001 BCCA 664    Tsoukas v. Segura
  The plaintiff's claim for damages for personal injuries alleged to result from a motor vehicle accident was tried by judge and jury. The jury made modest damage awards under some heads, and awarded nothing under other heads.   On appeal, the plaintiff sought a new trial. She asserted that the trial judge erred in improperly admitting evidence from a medical doctor called on the defendant's behalf, and in allowing the defendant to adduce evidence of the plaintiff's bad character by cross-examination of her, and through questions of other witnesses.  The appeal was dismissed. The medical evidence was admitted within the proper exercise of the trial judge's discretion under Rule 40A. Although some evidence concerning the plaintiff was inadmissible as offending the collateral evidence rule, the trial was not unfair and there was no miscarriage of justice. The verdict would have been the same even if the inadmissible evidence had been excluded.
• 2001 BCCA 652    Deglow v. Uffelman
  The appellant, the defendant in an action for damages for injuries caused in a motor vehicle accident, appeals the award by a jury of non-pecuniary damages of $100,000. The respondent, the plaintiff in the action, cross-appeals, claiming an award for loss of homemaking capacity on the grounds that the trial judge erred in his instructions to the jury on that issue. Held: appeal and cross-appeal allowed. Non-pecuniary damages are reduced to $75,000. Awards for past and future loss of homemaking capacity are $2,610 and $13,000 respectively.
• 2001 BCCA 605    Desjarlais v. Ateah et al.
• 2001 BCCA 551  Horvath v. Thring et al
  Order in motor vehicle accident case as to "liability" had been unlawfully made due to statutory bars precluding proceedings against the Crown by a plaintiff who is or may be entitled to a pension or benefits from the Crown. Accordingly, the trial judge's order was amended to refer to "fault" rather than "liability", and the action against Her Majesty the Queen was dismissed, leaving the litigants to make submissions below concerning the effect of this appeal on their respective positions.
• 2001 BCCA 516    Jamieson v. Duteil
  M.V.A. – Soft tissue injury – persisting back problems – previous history of back problems – appellant/D accepting present complaints but asserting no causation as to M.V.A. – appeal dismissed. Costs – Rule 37 – offer made less than 7 days before trial – judgment more than offer – double costs awarded to P commencing 7 days after offer made – appeal allowed and order for double costs struck.
• 2001 BCCA 515    Gurniak v. Nordquist
  Automobile Insurance – Court sustaining conclusion of trial judge that benefits paid to plaintiffs under Quebec auto insurance scheme not deductible by British Columbia insurer pursuant to British Columbia legislative provisions because Quebec benefits did not constitute indemnity payments.
• 2001 BCCA 501    Hughes v. Sharanowski
  Appeal of a damage award in a personal injury action allowed on the ground that the judge’s finding that the plaintiff’s right arm impairment was caused by the motor vehicle accident was unsupported by the evidence.
• 2001 BCCA 454    Rudd v. Hayward
  Motor Vehicle Accident - two parties found unconscious in front seat of truck after accident - issue as to who was driver since neither had memory of accident. Judge allowed two engineering experts to testify respectively for plaintiff and defendant, (plaintiff by counterclaim), but ruled against allowing further evidence in reply from another expert. Court of Appeal finding no error in ruling because proposed reply evidence added little to expert evidence already adduced and thus ruling of trial judge had no capacity to work an injustice. Because physical evidence strongly supportive of conclusion of trial judge as to who was driver at time of accident the appeal was dismissed.
• 2001 BCCA 449    Durant v. Lennard   
  Negligence -Single vehicle accident - Ice -Judgment for defendant set aside.    On appeal from a judgment dismissing an action for damages arising out of a single vehicle accident on black ice: Held, by a majority, that the summary trial judge erred in failing to apply an objective test of foreseeability of ice to the conduct of the defendant driver. The judgment should be set aside and the matter referred to the trial list.
• 2001 BCCA 419    Whitehorn v. Wallden
• 2001 BCCA 384    McKelvie v. Ng et al.
• 2001 BCCA 353    Sudhir v. ICBC
  The count dismissed an appeal by ICBC against a trial judge’s determination that a driver had met the requirements of s. 24(5) of the Motor Vehicle Act. The court found the circumstances indistinguishable from those in Slamaj v. ICBC(1999 B.C.C.A. 187).
• 2001 BCCA 331     Gill v. Probert
• 2001 BCCA 326    Zylstra v. Hughes
  Appeal dismissed from an assessment of damages for injuries sustained in motor vehicle accidents, McEachern C.J.B.C. dissenting.
• 2001 BCCA 282    Zubek v. Clarkson
  The appeal from a damage award for personal injury arising from a motor vehicle accident was dismissed. The trial judge was entitled to disregard certain medical opinions, having concluded they were based on an inaccurate premise, and to rely upon earlier opinions that did not incorporate that flaw.
• 2001 BCCA 281    McKee v. McCoy
  The appellant appeals the determination by the trial judge that the area on a roadway where the respondent was struck by a vehicle was an unmarked crosswalk as defined by the Motor Vehicle Act.  Braidwood, J.A. (for the court): The appeal is allowed. The crosswalk includes that portion of the highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite side of the highway. The learned trial judge erred in finding that the grass boulevard adjacent to the roadway was improved for the use of pedestrians. Although the boulevard was improved, it was not improved for the specific use by the Motor Vehicle Act.  The judgment was set aside and the issue was remitted to the trial judge for determination of liability.
• 2001 BCCA 258    Hiscox v. Armstrong et al.
  Appeal from dismissal of a motor vehicle accident claim on a no evidence motion. The trial judge correctly held that the plaintiff presented no evidence that the defendant drove negligently. Fresh evidence of witnesses that the defendant was speeding was rejected because the plaintiff knew of them before trial and did not secure their attendance . The fresh evidence failed the due diligence test.
• 2001 BCCA 232    Banks v. Shrigley
• 2001 BCCA 210    Cawson v. Quandt
  Appeal from judgment arising out of motor vehicle accident finding the defendant 14% liable for, in effect, not having his hazard lights on.   Appeal allowed; action dismissed. The obligation of a motorist is to take reasonable care for the safety of other users upon the highway. The standard which the trial judge imposed in this case is an unreasonable standard imposing almost a warranty upon the defendant.
• 2001 BCCA 140    Mattu v. Mattu
  The defendants appealed the award of damages for personal injuries suffered in a motor vehicle accident, on summary trial under Rule 18A. The respondents said the judge erred in deciding the case on conflicting affidavit evidence without cross-examination.    The appeal was dismissed. Counsel did not make a clear request for cross-examination, or move to adjourn, on the summary trial hearing. It was too late now to say that cross-examination was necessary. In any event, the alleged inconsistencies in the evidence did not go to matters of substance. There was an adequate evidentiary basis for judgment to be given.   Damage assessments under Rule 18A are not subject to the limitations suggested in Brayshaw v. Sommerfield, [1996] B.C.J. 432.
• 2001 BCCA 64    Bartucci v. Jormanainen
• 2001 BCCA 62    Balla v. ICBC
  Motor Vehicle Accident – Jury Trial – Appeal of Verdict – Supreme Court Rule (4)(2) – Damages awarded inordinately low The appellant appeals the verdict of a jury on the ground that the damages awarded were inordinately low. Held, appeal allowed and new trial ordered. A finding by a jury of no non-pecuniary damages following a finding of injury is an error of law. It is illogical to conclude that a plaintiff was injured and suffered out of pocket expenses but did not sustain any pain, suffering and loss of enjoyment, however transitory, as a result of the injury. Therefore, this is a case where the jury’s "answers are conflicting" within the meaning of Rule 41(2). While this court has the jurisdiction to substitute an award for the jury’s verdict, this case turns critically on credibility therefore there must be a new trial.
• 2001 BCCA 57    Ferguson v. All-Can Express Ltd. et al.