Canadian Underwriter

Why a tribunal changed the insurer’s finding of fault in this parking lot claim

July 24, 2020   by David Gambrill

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B.C.’s small claims court recently overturned the public insurer’s assessment of liability in a case in which a driver pulling out of his parking lot space clipped the open door of a car that had just pulled into the space right next to him.

Jacob Clark, the driver who brought the case to small claims court, parked beside a vehicle owned and driven by Bruce Baker. After parking, Clark exited his vehicle and opened the rear driver’s side door to retrieve his child from the backseat. Baker drove forward to leave his parking spot and the rear passenger side of his vehicle collided with Clark’s open door.

The Insurance Corporation of B.C. (ICBC) insured both vehicles and internally assessed Clark 100% responsible for the accident.

Clark, however, insisted that Baker failed to ensure it was safe to start moving his parked vehicle and therefore ICBC incorrectly held him at fault. Clark claimed $1,500 for vehicle repairs.

“The dispute between the parties is about when Mr. Clark opened the door,” Tribunal Member Kristin Gardner wrote in the Civil Resolution Tribunal (CRT) decision. “Mr. Clark says Mr. Baker’s car engine was still off when he got out of his car and opened the rear door. In contrast, Mr. Baker says he had already started pulling forward when Mr. Clark opened his rear door and struck Mr. Baker’s vehicle.”

ICBC assessed Mr. Clark 100% at fault, relying on section 203 of the Motor Vehicle Act (MVA).

Section 203(1) says a person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so. Section 203(2) of the MVA says a person must not leave a door open on the side of a vehicle available to moving traffic for longer than is necessary to load or unload passengers.

The tribunal agreed that Clark bore some liability for the incident, but not all of it.

“Clark had a continuing obligation to ensure his open rear door was not interfering with the vehicle beside him,” Gardner wrote. “Even though it was reasonably safe for Mr. Clark to open his rear door when he did, once he heard Mr. Baker’s car engine start, Mr. Clark ought to have ensured that his door was not open so far that it would hit Mr. Baker’s vehicle.

“The fact that Mr. Clark’s door collided with Mr. Baker’s vehicle shows that his door was either already contacting Mr. Baker’s car or that the door was somehow pushed further open as Mr. Baker pulled away. Therefore, I find that Mr. Clark was negligent for failing to ensure his car door would not hit Mr. Baker’s vehicle and his negligence caused the accident.”

That said, the tribunal added, Section 169 of the MVA says a driver must not move a stopped or parked vehicle unless the movement can be made with relative safety.

“Mr. Baker admitted that he did not see what Mr. Clark was doing after he parked, and he did not know who opened the door,” Gardner wrote. “Therefore, on Mr. Baker’s own evidence, I find that he did not look to see whether Mr. Clark’s rear door was open or closed before he started moving. If he had, he would have seen either Mr. Clark between their vehicles or the open rear door.”

Since Baker was unaware of his surroundings, and had not checked his blind spot or in his mirrors, he was also found to be liable for damage, the CRT found. Gardner ruled that Baker and Clark each shared the liability 50-50.

However, Gardner ultimately dismissed Clark’s $1,500 claim for the cost of fixing the rear door, noting that he “provided no evidence or documentation, such as an estimate or repair bill, to prove this expense.”

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