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Tuesday, May 12, 2020 @ 9:23 AM  

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Appeal by the plaintiff from dismissal of a personal injury claim arising from an automobile accident. The parties’ vehicles collided in a busy city intersection. The plaintiff had no memory of the accident and thus relied upon the testimony of the defendant as an adverse witness, accident scene photographs and an expert witness in accident reconstruction. The plaintiff’s vehicle travelled eastbound through the intersection, initially crossing three southbound lanes prior to entering the defendant’s northbound lane where the collision occurred. A witness testified that southbound traffic had to brake suddenly to avoid colliding with the plaintiff. The defendant testified that he drove at or slightly above the posted speed limit, and that he was on a hands-free telephone when the collision occurred. He testified that the plaintiff’s vehicle accelerated suddenly into his path, that he braked suddenly, and that the collision was unavoidable. The expert witness testified that a full braking application could have occurred if the defendant travelled at or near the speed limit. The trial judge found that the expert evidence was speculative due to the minimal physical evidence available. The judge concluded that the plaintiff’s negligence in entering the defendant’s path of travel unsafely was the sole cause of the collision. The action was dismissed. The plaintiff appealed.

HELD: Appeal dismissed. The trial judge did not err in the assessment of the expert evidence. The trial judge did not discount the opinion entirely regarding the defendant’s speed at the time of impact in finding that the defendant travelled above the posted limit, but in keeping with the flow of traffic. The trial judge appropriately discounted the expert evidence to the degree it relied upon facts that were not verifiable. The judge did not make improper use of the expert evidence in assessing whether the defendant breached the standard of care by speeding. Excessive speed on the part of a dominant driver, even if blameworthy, did not lead to liability unless the speed prevented taking reasonable steps to avoid the collision. The judge’s conclusion that the plaintiff was solely negligent did not involve placing undue weight upon, or misapprehending, the eyewitness or defence evidence. No error arose in the assessment of the evidence.

D'Amici v. Fahy, [2020] B.C.J. No. 392, British Columbia Court of Appeal, E.A. Bennett, P.M. Willcock and R. Goepel JJ.A., March 13, 2020. Digest No. TLD-May112020004