ICBC will not have to pick up the tab for a Surrey motorist who was under the influence of alcohol when she crashed into another car, a B.C. Supreme Court judge has confirmed.
The court heard Kendall Lee Derkson, now 25, had been at a local pub with some friends when she was 20 years old and was driving one of them home when on April 25, 2015 she rear-ended a car on Highway 10.
Both cars were written off.
Patrick Chan, 58, of Vancouver was the driver of the other car. He has settled his injury claim with ICBC.
ICBC found Derkson 100 per cent at fault for the crash and told her that she’d have to repay the insurance corporation for all claims made against her – resulting in this court case – after finding she’d breached the terms of her insurance by being “incapable of proper control of the vehicle” at the time of the crash, due to being under the influence of alcohol, pursuant to provisions of the Insurance (Vehicle) Regulation, B.C.
Derkson unsuccessfully challenged ICBC’s refusal to indemnify her and lost in B.C. Supreme Court in New Westminster, leaving her on the hook for costs related to the crash.
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Justice Karen Horsman heard that Derkson and her friends went to The Henry pub in Cloverdale, where, she told the court, she drank a bottle of Budweiser, ate some fish tacos, had a six-ounce glass of wine and also about three ounces from a glass of wine which one of her friends couldn’t finish.
Under cross examination, she denied drinking Jager Bomb shots at the pub. She said she saw one of her friends puking in the bathroom and she and another friend put the woman in the passenger seat of her car.
“The plaintiff says that as she was leaving The Henry, none of her friends expressed concern to her about her ability to drive,” Horsman noted in her Nov. 22 reasons for judgment. “They did not call her a cab, offer her a place to stay for the night, or try to take her keys away.”
The court heard Derkson drove down Highway 10, intending to turn right onto King George Boulevard. She told the court she suddenly came upon a car that had no lights on and appeared to be stopped on the highway, didn’t see it until she was a foot or two away, and tried to avoid it but was unable. After her car hit Chan’s car, it struck a median and veered right to the grass shoulder.
Chan told the court he’d been heading home from his job as a watchman at the Clydesdale Inn in Cloverdale and denied his car was stopped and his lights were off. He told the court he was doing 80 or 90 km/h when his car was rear-ended.
Derkson told the court a police officer held out his hand to help her out of the car when she opened her door and an ambulance took her friend to hospital. Police searched her car and found a bottle of white wine and a bottle of vodka. Derkson said the wine was hers, but the vodka wasn’t, and she hadn’t drank from either prior to the crash.
The court heard she did two breath sample tests, failed both and was issued an Immediate Roadside Prohibition. The cops called a taxi to take her home.
But on Aug. 19, 2015 the Superintendent of Motor Vehicles revoked the IRP and associated penalties. Derkson’s dispute of the IRP was based on her being out of her vehicle at the time indicated on the IRP.
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Derkson’s lawyer argued that her consumption of alcohol did not on its own establish she was incapable of properly driving her car, that there is insufficient evidentiary basis for that inference, and that ICBC hadn’t proven she breached her insurance coverage terms.
Indeed, Horsman noted there was “no evidence in this case to establish the plaintiff’s blood alcohol level at the time of the accident and no accident reconstruction evidence.” Nevertheless, ICBC argued that a “reasonable inference” could be drawn from the evidence as a whole that the crash wouldn’t have happened but for Derkson being intoxicated, and the judge agreed.
“I conclude that the inescapable inference to be drawn from the evidence as a whole is that the plaintiff was intoxicated due to the consumption of alcohol to the point that she was incapable of proper control of her vehicle,” Horsman decided. “The plaintiff breached a condition of her contract of insurance with the defendant and the defendant is not liable to indemnify the plaintiff under that contract.”
“The question of whether a person is intoxicated to the extent that she is incapable of proper control over her vehicle is one of fact. It can be established through circumstantial evidence such as lay opinion evidence of intoxication, evidence that the driver consumed alcohol before the accident, and observations of the driver’s condition after the accident, combined with the occurrence of the accident itself. Evidence of the driver’s blood alcohol content is not strictly required.”
tom.zytaruk@surreynowleader.com
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