Bobsleds and bystanders: What’s going on with that lawsuit?

Sara Golling
By Sara Golling
January 14th, 2019

With Rossland’s Winter Carnival coming up soon, including our famous (or infamous)  bobsled race, people have been wondering out loud about the lawsuit filed by a bystander injured in an earlier race. Rumours abound, as usual.

The case has been filed at the Vancouver court registry, not at the Rossland court registry.  Armed with a credit card and a willingness to spend about $12, anyone can determine a few facts by examining on-line the documents that have been filed in the lawsuit.  

But only a few.  Court documents filed so far consist mainly of every possible claim by the plaintiff arising out of such an incident, against every possible person even remotely connected with it.  In response, there are blanket denials filed by defendants – they deny everything, including that there were any injuries, and then state that if anything bad happened it was the fault of all the other defendants.

That’s not as unreasonable as it sounds. What it really means is “prove it in court!”

Checking the file on January 11 showed that further documents had been filed on January 10.  No court date had been set.  The only order that had been made by a court, by January 11, is an order for substituted service by publication in a local newspaper on a defendant whose address was unknown to the plaintiff.  

One allegation of note among the many in the plaintiff’s filed materials is a claim that the bobsledders at fault were “driving too fast” in the race.

Who is being sued?

 The plaintiff claims that the defendants – all eleven individual defendants, plus the City of Rossland, the Rossland Winter Carnival Society, and Selkirk Security Services Ltd. – are “jointly and severally liable.”

“Joint and several” liability means that if more than one defendant is found to be liable for (to have caused or contributed to) a plaintiff’s injuries, and if one or more defendants cannot pay up, the plaintiff can claim and collect the full award of damages from the other defendant(s).  That can result in a defendant who was found only 10% at blame having to pay 100% of the damages awarded.

But wait!  First off, it’s not the plaintiff or the plaintiff’s lawyer who decides whether liability is “joint and several” or only “several.”  The court makes that decision. If it’s “several,” then each defendant must pay only that portion of the damages that the court found them to be responsible for.

And here’s a statement from RMC/AGR – “Canada’s Insurance Defence Network.”

“In British Columbia, co-defendants will be jointly and severally liable unless the plaintiff also contributed to the loss or damages. If any portion of the blame rests with a plaintiff, then joint liability is severed and it becomes several liability as between all parties. This means the plaintiff can only pursue a defendant to the extent of its liability irrespective of whether one or more of the liable defendants cannot pay their proportionate share.” [Emphasis added.]

 According to that statement, if the court finds that the plaintiff in our bobsled case was even partially responsible for her own injuries, then the defendants will NOT be “jointly and severally liable.”

Evidence is crucial

What the court decides depends entirely on the evidence put before the court.  The court cannot make any decision that isn’t based on sound evidence to back up allegations.

If a defendant claims that the plaintiff was partly or entirely to blame for her own injuries, the defendant will have to have witnesses willing to testify under oath about what happened, and any other available evidence to back up that statement.  Were there videos?  Would they be admitted into evidence?  Would expert testimony prove that the videos have not been edited or otherwise altered?

Courts often develop a good ability to detect falsehoods, evasions and exaggerations, and are often called upon to do so when the testimony of some eye-witnesses contradicts that of others.  That’s where untampered video or photographic evidence, if there is any available, can help establish the truth.

Don’t hold your breath, dear readers. We  may have to wait a long time for the resolution of this case.  In the meantime, spectators — please stay off that race-course.

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