B.C. Supreme Court in New Westminster. (File photo)

ICBC not liable for intoxicated Surrey driver, judge confirms

Motorist challenged ICBC’s refusal to indemnify her and lost in B.C. Supreme Court in New Westminster

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.

READ ALSO: Delta woman on hook for rollover crash after letting impaired man drive her rented car

READ ALSO: Grieving mom shares vivid message against impaired driving with Surrey students

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.

READ ALSO: Surrey drunk driver left scene of fatal crash to chase after his dog

READ ALSO: Surrey drunk driver gets 32 months in prison for killing grandma, injuring girl

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

Like us on Facebook Follow us on Instagram and follow Tom on Twitter

Just Posted

GoFundMe started for young Surrey father with brain cancer

Campaign aims to raise $10,000 to help with treatment costs for Tyler Duquette

Eight Surrey groups to share $375K in grant money

The not-for-profit groups focus on public safety and the environment

Surrey mayor the lone vote against regional business licensing for ride hailing

Metro Vancouver mayors have voted to fast-track regional licensing in early 2020

SURREY HISTORY: The 1914 Sedro-Woolley bank robbery and its connection to Cloverdale

Columnist Sue Bryant looks back at the Pacific Northwest’s biggest bank heist of 1914 and its entanglement with the Surrey area

Surrey Liberal MPs pay tribute to Andrew Scheer

Scheer announced Thursday he will resign as leader of the Conservative Party of Canada

‘Not a decision I came to lightly:’ Scheer to resign as Conservative leader

Decision comes after weeks of Conservative infighting following the October election

B.C. SPCA seizes dogs chained up outside among scrap metal, garbage

Shepherd-breed dogs were living in ‘deplorable conditions.’

B.C. plane crash victim identified; witnesses describe ‘explosion’

He was a flight instructor, charter pilot and owned an airstrip before leaving Alberta

BC Hydro offers tips as collisions with power poles increase

Region with the largest spike in collisions was the Lower Mainland at 16 per cent

Canadian airline passengers to be eligible for $1,000 in compensation for delayed flights

Passengers can also receive compensation for overbooking, lost luggage and other inconveniences

Second snowfall warning issued for Coquihalla Highway

Another 20 cm of snow is expected to fall by early Friday

FVRD emergency plan only ‘partially meeting’ expectations, says auditor

Regional district says they are already working on shortfalls in emergency management

RCMP must bury three sex mannequins found in Manning Park

Police tasked with ensuring the mannequins were completely disposed of

Most Read

l -->