Hansen v Sulyma, 2013 BCCA 349

In this unfortunate case, Ms. Hansen was a passenger in her own car, which had run out of gas along an unlit highway on Texada Island, British Columbia. She was rendered a quadriplegic by a drunk driver, Mr. Leprieur, who veered off the road and struck the car. Mr. Leprieur had been drinking that night at a local bar. Ms. Hansen sued him, the bar and the driver of her car, Mr. Sulyma. Mr. Sulyma had failed to turn on the hazard lights of the stopped car. At trial, the Trial Judge apportioned liability at 70% to Mr. Leprieur, 25% to Mr. Sulyma and 5% to the bar.

Mr. Sulyma appealed the decision on three bases: that the Trial Judge had applied the wrong test for causation, that Ms. Hansen had been negligent in not insisting that the hazard lights be turned on, and that the Trial Judge had apportioned liability improperly. The questions with respect to causation and Ms. Hansen’s liability were easily dismissed by the Court. However Mr. Sulyma was successful in having liability re-apportioned, on the basis that the 5% liability found against the bar was not proportionate to its blameworthiness.

The Court quoted with approval from Lum (Guardian ad litem of) v McLintock (1997) 45 BCLR (3d) 303 (SC) as follows:

In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage […]

On this basis, the liability of the bar was increased to 20%, while the liability of Mr. Sulyma was reduced to 10%. It is important to note that the Court considered the fact that the blameworthiness of the bar in this case was evident in the knowledge of the bar’s employee that Mr. Leprieur had consumed 12 ounces of whiskey and no food, and that another patron had asked if Mr. Laprieur wanted to rent a room at the bar overnight. This blameworthiness was further emphasized by the statutory duty of a commercial establishment in British Columbia to not serve alcohol to an intoxicated person.

The increased proportion of liability to the bar in this case is a further demonstration of the civil law’s role as an agent for social responsibility, and a warning to commercial drinking establishments that they face significant liability where they fail to properly supervise the actions of their patrons.

It is also worth noting that Mr. Sulyma was found to be negligent in the operation of the motor vehicle by failing to turn on the hazard lights. The driver of a vehicle is responsible for the safety of the passengers of the vehicle, and must use common sense to ensure that the vehicle is visible at night.

This case is a welcome reminder for everyone to be mindful of their neighbours.