The District of Squamish and Province of British Columbia are listed as the first two defendants in a lawsuit filed by Coun. Bryan Raiser in connection with injuries he suffered when he fell down an embankment next to Highway 99 while riding his bicycle from a council meeting in 2009.
But they’re not the key defendants in the case, which is set for a 10-day trial in B.C. Supreme Court beginning February 18, 2013, a lawyer representing Raiser in the case said on Friday (Nov. 2).
Peter Kiewit Sons Co. and the other contractors who were working on the Sea to Sky Highway Improvement Project when the mishap occurred are really the ones Raiser and his legal team believe should be held liable for the fractured kneecap and injured shoulder Raiser suffered when he and his bicycle careened off the road on Jan. 20, 2009, Robyn Wishart of the Vancouver law firm Slater Vecchio told The Chief.
“The primary defendant is not the government in this case. The primary defendant is the road maintenance company that essentially created a trap that Mr. Raiser fell into,” Wishart said. “We have to sue the government, because they hired Kiewit to do the road project.”
The suit, filed in August 2009 against the DOS, the Ministry of Transportation, Kiewit, Mainroad Howe Sound Contracting, Miller Capilano, Miller Paving Ltd. and others, alleges negligence on the part of the defendants for failing to properly maintain the highway, failing to take steps to ensure its safety and/or failing to warn those travelling on it through signage, lighting or the placement of barriers in the affected area.
The accident, which took place in the dark, occurred after Raiser had crossed the Mamquam Blind Channel Bridge and was bicycling “on a barricaded path along Highway 99… following traffic signage and diversions. The end of the path led the plaintiff off of the roadway, causing the plaintiff to fall into a ravine” and injure himself, the suit alleges.
Wishart said that while it’s not considered proof of any sort of fault on the part of the defendants, the fact that barriers were erected in the area shortly after the mishap will likely weigh in Raiser’s favour when the judge considers whether to find the defendants liable.
“It definitely strengthens Mr. Raiser’s claim that he was injured because of the mis-marking of the sidewalk and road works where he fell down the cliff,” she said. “It didn’t have to happen. Six dollars’ worth of caution tape would have prevented the accident from happening.”
Lawyers for the defendants declined to be interviewed for this article. Wishart, though, said one of the factors that has been presented to her as a possible defence is that, being a a town councillor at the time of the incident, Raiser should have known there was construction in the area.
“I find [that] a weak argument against him — that even though he is obviously aware of the construction, he wouldn’t be aware of the pitfalls created by the road construction in this case,” she said.
Four years for a case of this nature to come to trial is not considered unusual, Wishart said. That’s because you can’t book a trial date until a response to the claim is made and the injured person has a chance to recover from his/her injuries. Raiser, for example, had to undergo surgery to repair his injured knee.
While Raiser has recovered from his injuries as much as he’s going to, his injuries have limited his abilities somewhat, Wishart said.
“He’s the type of guy who’s not going to sit back,” she said. “This type of injury really speaks for itself in terms of long-term consequences that he’s suffered, but I’m sure he’s going to remain as physically active and out in the community as he can.”
The amount of monetary damages that Raiser is seeking is not specified in the statement of claim, which is typical for this type of case. If the court finds the defendants liable, the lawyers would then present case law from similar cases to determine the amount of damages.
If there is such a finding, provincial legislation requires that the cost of treating Raiser through B.C.’s Medical Services Plan would be paid directly to the Health Ministry. Raiser would collect only the amount deemed necessary by the court to compensate Raiser for his out-of-pocket expenses and pain and suffering, Wishart said.
Statements of claim contain allegations that have not yet been proven in court.