No Negligence Found in Case of Failed Emergency Brake

erik-magrakenErik Magraken: BC Injury Law and ICBC Claims Blog:

This Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.  Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients.

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.

In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.

He sued the vehicle owner alleging negligence.  The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[18]        The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.

[19]        In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.

[20]        Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.

[21]        An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.

[22]        In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:

[175]    ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.

[23]        There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.

[24]        There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.

[25]        In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.

[26]        The action must be dismissed with costs.

Police in Newfoundland arrested a man with $47,000 in outstanding fines

Police in Newfoundland say they’ve arrested a man who owes thousands of dollars in outstanding fines.

Officers in St. John’s pulled over the 29-year-old man after a pursuit on October 31, 2015.

Police allege the accused was driving without insurance or registration and owes more than of $47,000 in outstanding fines.

The man is charged with driving while disqualified, flight from police, and breach of court orders.

 

Volkswagen’s Emission Retrofit May be Costliest Recall in Automotive History

Source: Alan Katz: propertycasualty360.com

Volkswagen AG’s worldwide repair of 11 million diesel vehicles to bring their emissions systems into compliance with pollution regulations is shaping up to be one of the most complex and costly fixes in automotive history.

The German carmaker will need to install parts for vehicles already on the road that weren’t designed to accommodate the equipment. The work may may need to be done in special shops set up for the purpose. And it will have to pass muster with dozens of countries with their own regulations. VW said Thursday that it was examining whether other diesel engines also have the cheating software.

“I can’t think of any other recall that would be as comprehensive,” said Jake Fisher, director of automotive testing at Consumer Reports magazine. “It’s really an expensive rework.”

The repair costs are only part of what Volkswagen is going to have to spend to get through a corporate crisis sparked by revelations it rigged its diesel cars for years to fool emissions tests. The company is also compensating dealers for storing cars they can’t sell. It faces more than 325 consumer lawsuits in the U.S., according to data compiled by Bloomberg, and has hired U.S. law firm Jones Day to conduct an internal investigation into the company’s actions.

Adding in likely fines, settlements with the U.S. Environmental Protection Agency, state authorities, the Justice Department and dozens of countries in Europe, and the cost could exceed 30 billion euros ($34 billion), according to the Center of Automotive Management in Bergisch Gladbach, Germany.

Texas lawyer faces charges over accusations he faked BP oil spill claims

A Texas lawyer faces criminal charges after he was accused of submitting thousands of false claims for damages from the 2010 Gulf of Mexico oil spill.

Robert McDuff, a lawyer for San Antonio attorney Mikal Watts, confirmed October 21, 2015 that Watts was indicted in Mississippi and will appear in court Oct. 29 in Gulfport.

“I look forward to a speedy trial and the opportunity to prove to a jury that I am not guilty of any crimes,” Watts said in a statement.

McDuff said the indictment is sealed and he wouldn’t discuss the specific charges against Watts. He said they are related to allegations that Watts committed fraud or forgery when he claimed to represent 44,000 clients in litigation against BP PLC.

McDuff said others have been indicted, but declined to name them.

Federal prosecutors didn’t immediately respond to a phone call and an email seeking comment. The indictment was first reported by the San Antonio Express-News.

The British oil giant sued Watts in 2013, alleging that more than half the clients were “phantoms,” people whom Watts never properly signed up, people who weren’t commercial fishermen or people who were dead. BP said claims officials could verify the Social Security numbers of only 42 per cent of Watts’ claimants, and even found someone who had never hired Watts included twice.

When BP sued Watts, it said he had filed only 648 compensation claims, and only eight of those had been ruled eligible for payment, with 17 others then pending.

McDuff said Watts believed the names and information he had been given were “real people who had suffered real injuries.”

“Although it later turned out that Mr. Watts had been provided with inaccurate information, and that some of these people had never authorized him to represent them, Mr. Watts was not aware of that when he filed these lawsuits against BP in order to protect the interests of the fishermen of the Gulf,” McDuff said.

BP said the large pool of clients caused it to offer an inflated $2.3 billion to pay off commercial fishing claims. It tried to persuade U.S. District Judge Carl Barbier in New Orleans to suspend payments from that fund after $1 billion was disbursed in a first round of settlements. Barbier refused, saying the questionable claims would be owed a small percentage of the remaining money. Other lawyers have said that BP should pursue fraud claims rather than stop payments.

Watts won a seat on the committee of lawyers who negotiated the multibillion-dollar settlement with BP in 2012, a group in line to reap more than $1 billion in payments. Watts resigned from the steering committee last year amid the federal investigation.

 

Court Critical of ICBC Practices Following Hit and Run Collisions

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released October 14, 2015 by the BC Supreme Court, Kamloops Registry, with critical comments aimed at ICBC for their practices in dealing with hit and run claims.

In this case (Fitger v. John Doe) the Plaintiff was injured by the actions of an unidentified motorist.  The Plaintiff contacted ICBC shortly after the collision and “essentially took the actions suggested by his ICBC claim adjuster“.   In the lawsuit for damages ICBC then raised the standard s. 24 defence arguing the Plaintiff did not take all reasonable steps to identify the at fault motorist.  The Plaintiff argued the defense should be struck as he relied on ICBC’s guidance.  The court, while critical of ICBC’s practices, noted their actions did not go so far as to strip them of the protections of the statutory defense.  In addressing ICBC’s practices Mr. Justice Meiklem commented as follows:

[10]         Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[16]         While the doctrine of estoppel can, as a general proposition, be applied in respect of interfering with statutory rights, s. 24(5) of the Act is as much about creating an obligation on the courts to enforce an obligation on a class of claimants in the cause of preventing fraudulent claims as it is about providing a defence to ICBC.

[17]         In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).

Madoff trustee: All investors with allowable claims less than $1.1M will be fully paid soon

The trustee recovering money lost by investors with imprisoned financier Bernard Madoff reported a new milestone October 20, 2015, saying a new distribution will mean allowable claims of $1.1 million or less will have been fully reimbursed.

Trustee Irving Picard made the announcement as he asked a U.S. Bankruptcy Court judge to approve $1.18 billion to be distributed to investors. Another $320 million would be held in reserve for use in claims being litigated.

In a release, the trustee said the distribution will increase the total amount already returned to investors to about $9.1 billion of $17.5 billion in allowable claims.

The new distribution will satisfy nearly 57 per cent of allowable claims, with individual checks ranging from $1,286 to $200 million, the release said.

The trustee has recovered or reached deals to recover about $10.9 billion since the fraud was revealed in December 2008 with Madoff’s arrest.

Authorities said Madoff had sent investors statements telling them that their roughly $20 billion investment had grown to as much as $68 billion when the accounts actually had dwindled to just a few hundred million dollars.

The 77-year-old Madoff is serving a 150-year prison sentence after pleading guilty to fraud charges, admitting his Ponzi scheme lasted decades.

 

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from ILSTV

You have Successfully Subscribed!

Pin It on Pinterest