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| quote: | Originally posted by Spam
PS:
Chem, do you work in Insurance or some such? I'm getting that hint from your responses. On a totally unrelated matter, I have a question about fault. My buddy rear-ended a lady on Sunday (the big snow-storm) who was parked in the passing lane on an 80km/h road. She wasn't stuck, her car worked, she had just decided to stop while she made a phone call from her cell. I don't know if her emergency lights were flashing, but even so it would have been tough to tell right away that she was stopped since people drive slowly with their 4-ways on all the time during snow storms. Since she was in park, her brake-lights weren't on. It's my understanding that all rear-endings are the fault of the rear-ender, is that in ALL instances? |
Chemy is an insurance adjuster, as am I. Fault in Ontario is tricky... we actually have two systems of determining fault in this province; the Fault Determination Rules, and Tort.
The Fault Determination Rules is a regulation under the Insurance Act, which is used to govern how liability (fault) is apportioned for physical damage claims (or claims for damage to one's vehicle). Under the Fault Determination Rules the striking vehicle is at fault for all rear end collisions, the only exception would be if the other party were moving in reverse. Now, the argument could be made that your friend didn't actually rear end the other vehicle as it was in fact parked. Unfortunately, this won't help your friend as the striking vehicle is always at fault for collision with a parked vehicle... no exceptions. So, with regard to the physical damage to the vehicles involved your friend will be considered 100% liable. Under the "no-fault" system this means your friend will have to claim their damages under the collision coverage of his/her policy and pay the appropriate deductible. The other party will claim her damages against the Direct Compensation coverage of her own policy (this normally carries no deductible).
Tort is used to determine liability for personal injury claims. The key in tort is determining negligence... who was negligent? A party is considered negligent if they "acted in a way that a reasonable person would not, or failed to act as a reasonable person would." In this case, a reasonable person would have avoided the stopped vehicle.
Now just because someone was negligent does not mean they are liable (meaning they are responsible for the resulting damages). The test for liability under the tort system is three fold: 1) did the defendant (your friend) have a duty of care to the plaintiff (other party), 2) did the defendant breach that duty of care, 3) did the breach result in the damages (injuries and economic loss) being claimed? If the answer to all these is yes then the defendant is liable for the plaintiff's damages. Under tort it is very likely your friend will also be considered liable. Every motorist has a duty of care to ensure they are operating their vehicle with sufficient prudence and control as to avoid causing damage to the property of others, so yes to question 1. The fact that your friend was unable to avoid collision with a stationary vehicle will be considered proof that they were not operating their vehicle as perscribed above thus they will be considered to have breached their duty of care to the other party, yes to question 2. Now, if the other party has suffered injuries as a result of this collision then they have a right to claim damages... whether or not they will be considered to be a result of the accident requires further investigation but it is presumable that they will be causally linked. Given the brief details you have provided it is probable that your friend will be liable for any personal injuries that have resulted from this collision.
Now, all is not lost.... there are defences to negligence and liability in tort. The best defence in this case would be contributory negligence. Contributory negligence means the extent to which the other party was negligent and thus contributed to their own damages. Again, using the reasonable person test... a reasonable person would not stop in a live lane of a public highway. It is likely that the other party will be considered negligent as well. If this is the case then it must be determined how much the other party's negligence was responsible for the collision. You may be thinking "100%, if she had not stopped the accident wouldn't have happened"... if you're thinking this you're wrong. Her stoping is what we consider to be a remote cause... a remote cause is a condition that indirectly caused an accident (or more simply, something that laid the ground work for an accident... created the conditions necessary to result in an accident). Liability follows what we call the proximate cause... proximate cause is the action that set in motion an unbroken chain of events. In this case your friend failing to take sufficient action to avoid the stoped vehicle is the proximate cause. Getting back to how much liability the other party bears for having stopped in a live lane... this is determined through case law. Essentially, to determine this one must review past cases with similar circumstances to see how past judges have approtioned liability. Without actually doing the research I can suggest that the contributory negligence will be somewhere in the area of 25%. So, in the end your friend will be considered 75% liable for any injuries the other party suffers.
Holy shit... sorry to write so much but it's not really as simple a question as it appears on the surface.
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| quote: | Originally posted by RickyM
you're just a shit version of Moral Hazard. At least he knows what he's talking about. |
| quote: | Originally posted by pkcRAISTLIN
lol, i love it when moral feels the need to lay the smack down 
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