A plumbing company's driver could not see out fogged windows in the dark - and that alone sank its bid to beat ICBC's fault call.
British Columbia's Civil Resolution Tribunal has dismissed a plumbing and heating company's challenge to a 50 per cent fault split assigned by the Insurance Corporation of British Columbia (ICBC), finding the company's driver was negligent regardless of which side's account of a driveway collision was believed.
The dispute arose from a November 14, 2023 collision on 98 Avenue in Surrey, in the early morning while it was still dark. Milani Plumbing Heating & Air Conditioning Ltd.'s driver reversed his employer's vehicle out of his driveway, across the westbound lane, then moved forward to head east. Shortly after, the front driver's side of his vehicle struck the rear driver's side corner of another motorist's vehicle as that driver left his own driveway across the street.
The drivers disputed how the collision happened. Milani's driver said he had backed into the eastbound lane, moved forward about a foot, and only then saw the other vehicle, which might have been pulling out and was turning across both lanes; he later put it at 80 per cent in the westbound lane. The other driver said he had signalled, turned left out of his driveway, and stopped because vehicles were reversing out of the driveway opposite his.
ICBC's responsibility letter, issued September 9, 2024, gave no weight to a statement from the Milani driver's girlfriend, citing independence and timing concerns, and cited section 176 of the Motor Vehicle Act, requiring a driver leaving a driveway to yield to approaching traffic posing an immediate hazard. ICBC found the Milani driver 50 per cent responsible.
Under the Accident Claims Regulation, a company challenging an ICBC fault call must clear two hurdles - showing the insurer acted improperly or unreasonably, and separately proving its driver was actually less responsible than assessed. Tribunal member Amanda Binnie found it unnecessary to assess ICBC's investigation, because Milani could not clear the second hurdle under either version of events.
Binnie found the Milani driver's own evidence established negligence: he admitted he "could not see well" out of fogged windows and did not know where the other vehicle came from. She found the other driver's large commercial van was there to be seen, and that the Milani driver breached section 144's general duty of care by proceeding regardless, and section 169, which bars moving a stopped vehicle unless it can be done safely.
If the other driver's account were accepted, Binnie found he was not negligent at all, leaving Milani's driver fully exposed. On the Milani driver's own version, the other driver would also have breached section 176 by turning while still partly in the wrong lane, so both drivers bore some responsibility. Unable to determine which was more at fault on that version, Binnie applied section 1(2) of the Negligence Act, requiring equal apportionment when relative fault cannot be measured. Either way, the Milani driver's share could not fall below 50 per cent.
The tribunal dismissed Milani's claim. ICBC did not seek reimbursement of its tribunal fees.
For claims professionals, the decision shows a driver's own admissions about impaired visibility can sustain a fault finding on their own, independent of how a tribunal views the insurer's investigation.
