What is the test for determining liability in negligence in a motor vehicle accident?

British Columbia, Canada


The following excerpt is from Shinzay v. McKee, 2014 BCSC 2317 (CanLII):

The parties agree on the applicable legal principles. Those principles are conveniently summarized by Voith J. in Brewster v. Li, 2013 BCSC 774 at paras. 77-84. I have summarized the points most relevant to this case: a. The plaintiff must establish that the defendant was both the “cause in fact” and the proximate cause of any damage suffered; b. The test for causation in negligence is the “but for” test. The court must determine if, without the tortious act, the plaintiff’s injury would have resulted. If the answer is “yes”, the defendant is not liable for the injury or the losses. If the answer is “no”, however, the defendant is liable to the plaintiff for the whole of the losses flowing from the injury; c. The plaintiff must prove causation for both injury and loss, but the loss must be caused by the injury. In this context “injury” refers to the initial physical or mental impairment of the plaintiff's person as a result of the [defendant’s act], while “loss” refers to the pecuniary or non-pecuniary consequences of that impairment” . . . In other words, “injury” is concerned with establishing the existence of liability . . .; d. The burden is on the plaintiff to prove, on a balance of probabilities, both the injury and the loss; e. Generally, the defendant must put the plaintiff back in the same (but not better) position he or she would have been in had the tortious act not occurred f. The defendant must take the plaintiff as she finds him, even if his injuries are unexpectedly severe, or more dramatic than ordinarily suffered because of a pre-existing condition (the “thin skull” principle); g. But the defendant is not liable for the debilitating effects of a pre-existing condition that the plaintiff would have experienced regardless of the accident (the “crumbling skull” principle). In other words, compensation is not for the loss from the pre-existing condition, only for the increased loss caused by the negligent conduct.

The parties also agree that Stapley v. Hejslet, 2006 BCCA 34 at para. 46 sets out a list of non-exhaustive factors that influence an award of pecuniary damages at which I summarize: the plaintiff’s age; the nature of the injuries, including the severity and duration of any pain; the degree of the impairment of physical and mental ability and/or disability; emotional suffering; loss or impairment of life or lifestyle; impairment of family, marital and social relationships; and the plaintiff’s stoicism (in the sense that it should not be held against the plaintiff).

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