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TORTFEASORS - Contribution between tortfeasors - Apportionment of liability

Tuesday, December 22, 2020 @ 6:49 AM  

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Appeal by the plaintiff from the apportionment of fault for the parties’ motor vehicle accident. The respondent’s vehicle was turning left at an intersection when it was struck by the appellant’s vehicle, which was proceeding straight through the intersection. The respondent and another witness testified the respondent had come to a complete stop prior to starting his turn. Expert evidence opined the appellant was significantly speeding at the time of the collision and that, based on the information from the event data recorder in the respondent’s vehicle, the respondent had not fully stopped before proceeding with the turn. The trial judge found the respondent stopped at the stop line before starting his turn. She found the appellant was the dominant driver and had the right of way. She further found the respondent could have safely made the turn if the appellant had not been speeding. She apportioned fault 60 per cent to the appellant and 40 per cent to the respondent.

HELD: Appeal dismissed. The trial judge clearly erred in finding the evidence of the respondent and other witness was consistent with the expert evidence regarding whether the respondent came to a complete stop. The expert evidence conclusively established the respondent’s vehicle did not come to a complete stop. The respondent’s failure to yield the right of way was not determinative in considering the respective degrees of fault. Notwithstanding the trial judge’s error, her apportionment of fault was not grossly disproportionate to the apportionment the appeal court would have made. The trial judge did not err in finding that as between the parties, the conduct of the appellant was more blameworthy.

Pereira v. Jory, [2020] B.C.J. No. 1856, British Columbia Court of Appeal, R. Goepel, J.J.L. Hunter and P.G. Voith JJ.A., November 20, 2020. Digest No. TLD-December212020003