What is the difference between a plaintiff and defendant in a collision where neither party saw each other before the collision?
British Columbia, Canada
The following excerpt is from Lensu v Victorio, 2019 BCSC 59 (CanLII):
In IIet v. Buckley, 2017 BCCA 257, a cyclist was held 50% liable for the collision. The cause of the accident was "primarily" that neither party saw each other before the collision: at para. 33. In this case, I have found that the defendant saw the plaintiff when emerging from the parkade, was alive to the risk she presented in light of her proximity to the vehicle, and chose to proceed in any event. In my view, this is a significant distinction.
To recover damages, the plaintiff must show causation between the accident and her injuries. The test applied is the "but for" test. The plaintiff must prove that but for the defendant's negligent acts, her injuries would not have occurred: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at 466–468.
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