Passenger also negligent because she knew driver was drunk
In a recent decision from the British Columbia Supreme Court in Park v. VW Credit Canada Inc. 2017 BCSC 1733, the Court was tasked with determining whether a passenger should be held partially responsible for her injuries as a result of riding in a motor vehicle operated by an intoxicated driver.
In the early morning of January 26, 2013, the life of the plaintiffs’ beloved daughter, Song-Yi Park, ended at the age of 26. She died in a horrific single car accident, when she was a passenger in a car driven by her live-in boyfriend, the defendant Jae-Ho Ouh. The plaintiffs brought action, seeking damages under the Family Compensation Act and were awarded a future loss of dependency with a present value of $50,300. The likelihood of this possibility was assessed at 75%, yielding a loss of $37,725. The Court also assessed the plaintiffs’ “reasonable expenses of the funeral and the disposal of the remains of the deceased person” within the meaning of section 3(9)(b) of the Family Compensation Act at $6,838.14.
These awards were subject to any contributory negligence on behalf of Song-Yi Park. The defendant asserted that negligence on the part of Song-Yi contributed to the damage or loss claimed. The negligence alleged is that Song-Yi knew or ought to have known that Mr. Ouh had been drinking heavily before they left to drive home that night, and that it would be unsafe for her to ride with him. The onus of establishing this is on the defendant. The plaintiffs argued that no claim for contributory negligence arose because the evidence does not establish that there were signs of impairment that Song-Yi ought to have recognized.
On the basis of the expert evidence, the Court found that Mr. Ouh had been drinking heavily and was significantly impaired. According to the plaintiffs’ expert, Brian Image, Mr. Ouh’s blood alcohol concentration (“BAC”) at the time of the accident was in the range of 202-236 mg of alcohol in 100 mL of blood, (or 202-236 mg), suggesting a minimum consumption of 12.5-16.2 eight ounce glasses of beer that evening if Mr. Ouh commenced his drinking at around 6:00 p.m. But whenever Mr. Ouh started drinking, the Court found that the only reasonable inference, based upon the toxicological evidence, is that he must have consumed a substantial amount of alcohol in the period between 6:00 p.m. and 12:30 a.m. when Song-Yi was with him.
Constable Patricia Peck attended at the scene of the accident shortly after it happened. She spoke with Mr. Ouh there, stood with him, helped him walk across the intersection, and rode with him in the ambulance. Surprisingly, it was her evidence that she noted no signs of impairment on Mr. Ouh’s part and smelled no alcohol until much later when she was with him in the hospital near the end of her shift. He did not appear to her to be intoxicated. On the other hand, the emergency physician who attended Mr. Ouh, Dr. Nicholas Rose, had no difficulty smelling alcohol on Mr. Ouh’s breath when Dr. Rose first assessed him on the stretcher. The defendant contended that regardless of what signs of impairment may have existed, Song-Yi must have known that Mr. Ouh had been drinking heavily, because she was with him throughout the evening. The Court accepted that Song-Yi had been out at a party for a friend of hers who was returning to Japan. She called Mr. Ouh to pick her up, which he did at about 6:00 p.m. or a little later. He then drove Song-Yi and her friend to a bar where they ordered beer and remained until about 9:30 p.m. After leaving the bar, Mr. Ouh drove Song-Yi and her friend over to North Vancouver, where they dropped off the friend. Mr. Ouh and Song-Yi then returned downtown where they stopped at a restaurant to have sushi. They arrived there at about 10:30 p.m. and remained until about midnight.
In arriving at its decision on the issue of contributory negligence and apportionment of fault of the passenger, the Court opined:
89 Although I accept that Cst. Peck’s evidence was accurate as to her observations in the aftermath of the accident, I do not accept that, before this horrific accident (which split Mr. Ouh’s Audi in half), no signs of impairment would have been discernible. This again arises by necessary inference from the toxicological evidence, supported by the evidence of Dr. Rose. I also take into account the following factors, which may have masked signs of impairment Cst. Peck might otherwise have observed: the effect of the shock of the accident on Mr. Ouh; the facial injury he had suffered; the fact that English is his second language; and the fact that their interaction was outdoors. The toxicological experts were very clear that the blood alcohol level they found would give rise to signs of significant impairment in all but the most seasoned of hard drinkers who had developed very high tolerance levels. There was no evidence that Mr. Ouh was such a person.
90 But even if, as suggested by the plaintiffs, Mr. Ouh must be taken to have been a seasoned heavy drinker with a high tolerance to alcohol who would show few signs of impairment, I am satisfied on a balance of probabilities that he consumed a sufficient amount of alcohol in the presence of Song-Yi to make it unreasonable for her to drive with him.
101 As we have seen, Tyrwhitt-Drake J attributed 30% of the fault to the plaintiff passenger in Ridsdale. A like amount was attributed on a similar basis to the plaintiff passenger in Holton v. MacKinnon, 2005 BCSC 41 (B.C. S.C.). In Grewal, the plaintiff was found to have been 35% at fault. A assessment of contributory negligence to the degree of 50% was upheld in Pharness (Guardian ad litem of) v. Wallace, 1989 CarswellBC 1365 (B.C. C.A.), but there, the injured plaintiff’s negligence consisted of failing to wear a seatbelt as well as travelling with the defendant when he was impaired and his vehicle was defective.
102 In this case, taking into account the egregious fault of Mr. Ouh (smoking marijuana, consuming a great deal of alcohol and driving with extreme recklessness), I consider Song-Yi’s relative degree of fault to be considerably less, and I apportion fault 20% to her and 80% to Mr. Ouh.
Accordingly, the plaintiffs’ award was reduced by 20 per cent to take into account the contributory negligence on part of plaintiffs’ daughter, as result of her driving with defendant boyfriend after spending evening with him while he was drinking heavily.