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

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

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

(Black Press - file photo)
WEATHER: Enjoy the sun today, prepare for a week of rain

Clouds and rain to arrive by evening, Environment Canada forecasts

RCMP are looking for “an unknown man who wrapped his arms around” a female youth in Clayton Feb. 26. (Black Press file photo)
Youth assaulted by unknown man in Cloverdale

Mounties looking for ‘tall and thin’ Caucasian man in his 40’s with short dark brown hair

Framed photos of Travis Selje and other items fill the top of a dresser in his bedroom. (Photo: Tom Zillich)
Crown says defence case epilepsy caused fatal Surrey crash fails on balance of probabilities

‘She very clearly had some form of control over that vehicle,’ Crown argues

South Surrey’s Elizabeth and Marcel Bergmann – the Bergmann Piano Duo – will present another colorful Surrey Civic Theatres Digital Stage concert., premiering online March 11. Contributed photo
South Surrey pianists Bergmann Duo blend musical colours

Rhapsody In Blue meets The Red Violin in online concert

St. John Ambulance is looking for financial support in its bid to install 1,000 publicly accessible AED devices throughout British Columbia. The stands which hold the defibrillator also contain naloxone and first aid kits. Cost to equip and install each stand is around $8,000. (stock photo)
St. John Ambulance aims to install 1,000 publicly accessible AEDs across B.C.

First of two defibrillators planned for Crescent Beach already in place

Abbotsford’s Kris Collins turned to TikTok out of boredom when the provincial COVID-19 lockdown began in March 2020. She now has over 23 million followers on the video app. Photo: Submitted
Internet famous: Abbotsford’s Kris Collins is a TikTok comedy queen

Collins has found surprise stardom alone with a phone

BC Ferries experienced heavy traffic on Feb. 27 following cancellations the day before due to strong winds and adverse weather. (Black Press Media file photo)
BC Ferries sailings fill up quickly after Friday cancellations due to high winds

Waits expected on Swartz Bay-Tsawwassen route, Horseshoe Bay-Departure Bay route

Nanaimo children’s author and illustrator Lindsay Ford’s latest book is ‘Science Girl.’ (Photo courtesy Lindsay Ford)
B.C. children’s writer encourages girls to pursue the sciences in new book

Lindsay Ford is holding a virtual launch for latest book, ‘Science Girl’

Pig races at the 145th annual Chilliwack Fair on Aug. 12, 2017. Monday, March 1, 2021 is Pig Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of Feb. 28 to March 6

Pig Day, Canadian Bacon Day and Grammar Day are all coming up this week

Staff from the Marine Mammal Rescue Centre, passersby, RCMP and Nanaimo Fire Rescue carried a sick 300-kilogram steller sea lion up the steep bluff at Invermere Beach in north Nanaimo in an attempt to save the animal’s life Thursday. (Photo courtesy Marine Mammal Rescue Centre)
300-kilogram sea lion muscled up from B.C. beach in rescue attempt

Animal dies despite efforts of Nanaimo marine mammal rescue team, emergency personnel and bystanders

Doctors and counsellors warn of an increase in panic attacks, anxiety, depression and suicide ideas between ages 10 to 14, in Campbell River. ( Black Press file photo)
Extended pandemic feeding the anxieties of B.C.’s youth

Parents not sure what to do, urged to reach out for help

Kara Sorensen, diagnosed with lung cancer in July, says it’s important for people to view her as healthy and vibrant, rather than sick. (Photo courtesy of Karen Sorensen)
B.C. woman must seek treatment overseas for inoperable lung cancer

Fundraising page launched on Karen Sorensen’s behalf, with a goal of $250,000

Gina Adams as she works on her latest piece titled ‘Undying Love’. (Submitted photo)
‘Toothless’ the kitty inspires B.C. wood carver to break out the chainsaw

Inspired by plight of a toothless cat, Gina Adams offers proceeds from her artwork to help animals

B.C. Finance Minister Selina Robinson presents bill to delay B.C.’s budget as late as April 30, and allow further spending before that, B.C. legislature, Dec. 8, 2020. (Hansard TV)
How big is B.C.’s COVID-19 deficit? We’ll find out April 20

More borrowing expected as pandemic enters second year

Most Read