IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Larsen v. Doe, |
| 2010 BCSC 333 |
Date: 20100316
Docket:
M110346
Registry: New Westminster
Between:
Shirley
Larsen
Plaintiff
And
John
Doe, Richard Roe and
Insurance
Corporation of British Columbia
Defendants
Before: The Honourable Mr. Justice Josephson
Reasons for Judgment
Counsel for Plaintiff: | G. |
Counsel for Defendants: | D. |
Place and Date of Trial: | New January |
Place and Date of Judgment: | New March |
[1]
The plaintiff was a pedestrian walking in a
portion of a T intersection normally used by vehicles when an unknown driver
left a stop sign at the entrance to the intersection, turned left and struck
the plaintiff. The collision knocked her to the ground, causing injuries to her
ankle, wrist and chest.
[2]
Liability is in issue. As well, the defendant
submits that the plaintiff failed to comply with s. 24(5) of the Insurance
(Motor Vehicle) Act, R.S.B.C. 1996, c. 231[Insurance Act] requiring
her to undertake all reasonable efforts to ascertain the identity of the
unknown driver or owner.
Negligence
[3]
The defendant approached the intersection from
the bottom of the T while the plaintiff was walking from right to left across
the top of that T. In the block prior to the intersection where the accident occurred,
there were diagonal parking stalls on the right as the plaintiff walked towards
the intersection. While there was a sidewalk in front of the vehicles parked in
those stalls, the plaintiff was unaware of its existence and chose to walk
along that roadway to the rear of the parked vehicles. The last few parking
stalls closest to the intersection were vacant. The plaintiff intended to cross
the intersection on a straight line from her path along the rear of the parked
vehicles.
[4]
Approaching that intersection, the plaintiff
observed the defendants vehicle stopped at a stop sign. She hesitated briefly
until she believed that the defendant driver was waiting for her to pass by.
After taking a few steps forward, the defendants vehicle made a left turn into
her path and struck her.
[5]
The sun had set and it was dark, with only a
single street light illuminating the intersection. The plaintiff wore darker
clothing.
[6]
The plaintiff observed that the head of the
driver was turned to the right, away from the plaintiff, as the vehicle
executed a left hand turn.
[7]
There was no marked pedestrian walkway, but if
the plaintiff had taken the sidewalk, her path would cross the street within
the unmarked crosswalk much closer to the stop sign from which the vehicle
departed.
Negligence of Driver
[8]
Though the plaintiff was not dressed in bright
clothing, with the intersection having been illuminated by a street light and
the headlights of the vehicle, I find that she was there to be seen. That she
was not seen by the driver is best explained by the plaintiffs evidence, which
I accept, that the driver was looking to the right while turning left. That
failure to keep a proper lookout constituted negligence causally connected to
the injuries suffered by the plaintiff.
Contributory Negligence by the Plaintiff
(i) Was the plaintiff in
breach of her statutory duties?
[9]
According to the definition of a crosswalk per
s. 119(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the MVA]
the path between sidewalks approaching an intersection from opposite sides
constitutes a crosswalk, even though unmarked. As the plaintiff was crossing
the highway outside of a crosswalk, by virtue of s. 180 of the MVA, she
was required to yield the right of way to the defendants vehicle.
[10]
The plaintiff argues, however, that despite s.
180 of the MVA, s. 181 imposes a duty on drivers to exercise care to
avoid colliding with pedestrians, a duty I have found was breached.
[11]
The plaintiff also advances an alternative argument that she in
fact had the right of way as per s. 175(1)(a) of the MVA because the
term traffic under s. 119(1) includes pedestrians:
175 (1) If a vehicle that is about to enter
a through highway has stopped in compliance with section 186,
(a) the driver of
the vehicle must yield the right of way to traffic that has entered the
intersection on the through highway or is approaching so closely on it that it
constitutes an immediate hazard, and
(b) having
yielded, the driver may proceed with caution.
(2) If a vehicle is entering a through
highway in compliance with subsection (1), traffic approaching the intersection
on the highway must yield the right of way to the entering vehicle while it is
proceeding into or across the highway.
Definitions
s. 119 (1) In this Part:
traffic
includes pedestrians, ridden or herded animals, vehicles, cycles and other
conveyances, either singly or together, while using a highway to travel;
[12]
The plaintiff argues that, as she was walking along the highway, she had
either entered the intersection or was approaching so closely that she
constituted an immediate hazard to the defendant driver. Consequently, the
defendant was obligated to yield the right of way to the plaintiff and, had she
done so, could have proceeded after the plaintiff cleared the intersection.
[13]
While ss. 175 and 119, taken together, give through traffic the right of
way, s. 175 does not grant to pedestrians travelling along a highway the
right to proceed on the roadway itself where a sidewalk or a crosswalk is
available. No authorities have found otherwise.
[14]
Furthermore, the plaintiffs submission that s. 175 grants pedestrians
the right of way in travelling along a roadway runs contrary to s. 182(1) of
the MVA which provides that, where there is a sidewalk, a pedestrian
should avail herself of it.
[15]
Therefore, I find that the plaintiff was in breach of
her statutory duties under s. 180 and/or s. 182(1) of the MVA and cannot
invoke s. 175 in such a way as to override those duties.
[16]
However, the plaintiff also relies on authorities that
distinguish between yielding and surrendering the right of way. This
originates in Kuharski v. Inder, [1986] B.C.J. No. 2762 (S.C.) [Kuharski], where the court indicated that where a plaintiff has established substantial
prior entry to an intersection, s/he is not required to surrender the right
of way, even when crossing outside of a crosswalk:
Whether Mr. Inder’s vehicle stopped beyond
the stop sign or having passed through it, it is my view that Mrs. Kuharski
gained so substantial a prior entry on to the highway that she had achieved the
right-of-way. Section 182 [now s. 180], which requires the pedestrian to yield
the right-of-way, does not require a pedestrian to surrender the right-of-way
when that pedestrian has clearly established it, otherwise pedestrians would
stop for vehicles three, four, five hundred feet away from them travelling at
slow speeds. That is not required.
The defendant’s
evidence was to the effect that he saw the plaintiff, and that she seemed to be
unaware of his presence, but in spite of that, he testified that he kept going.
[17]
Therefore, according to Kuharski,
a driver who normally would have the right of way according to s. 180 of the MVA
would lose that right of way by virtue of the pedestrian achieving the
right of way by establishing substantial prior entry to the road. The finding that a pedestrian may achieve the right of way by
establishing prior substantial entry in an intersection has been followed in Funk v. Carter, 2004 BCSC 866, 32 B.C.L.R.
(4th) 158.
[18]
In my view, the finding that a pedestrian can
achieve the right of way by entering the intersection first runs contrary to
ss. 180 and 182, and more generally to the provisions of the MVA
addressing right of way. I am also of the view that what the court was endeavouring
to achieve in both Kuharski and Funk was to reinforce the
principle that, even where a pedestrian is in an intersection or a roadway
outside of a crosswalk and therefore does not have the right of way, a driver
cannot not use their right of way to excuse a failure to exercise care with
respect to the pedestrian as mandated by s. 181 of the MVA.
[19]
In any event, the plaintiff in the instant case had not
established the required substantial prior entry in the intersection so as to
grant her the right of way.
(ii) Did Larsen cause or contribute to her injuries?
[20]
While a breach of the plaintiffs statutory duty under the MVA
has been established, the defendant must still demonstrate causation: see Christie
v. Insurance Corp. of British Columbia (1993), 28 B.C.A.C. 262, 79 B.C.L.R.
(2d) 370.
[21]
Therefore, while McKenzie J. did not find the pedestrian contributory
negligent in Braathen, His Lordship found that the plaintiffs position
outside of the crosswalk made him more visible to the driver, not less.
That is not the case here.
[22]
The circumstances of this case are more consistent with those in Claydon
v. Insurance Corp. of British Columbia, 2009 BCSC 1077, [2009] B.C.J. No.
1594 [Claydon], where the court found the plaintiff pedestrian 25%
contributorily negligent. In Claydon, it was also dark and the plaintiff
wore dark clothing, although there was good lighting in all directions. The
court found the defendant driver negligent for driving at an excessive speed,
failing to signal her intention to turn right, failing to anticipate
pedestrians crossing the street (despite that they were crossing outside of the
unmarked crosswalk), and failing to yield to pedestrians on the street when
they were there to be seen. (at para. 25). The plaintiff, however, was found
25% contributorily negligent for crossing outside of the crosswalk where the
effect was to make herself less visible to right-turning vehicles and
for not keeping a better lookout for traffic.
[23]
The findings of Braathen and Claydon are also consistent
with that in Bhupal v. Connolly (1994), 49 A.C.W.S. (3d) 283, [1994]
B.C.J. No. 1679 (S.C.) [Bhupal], where the plaintiff was walking along
the roadway contrary to s. 184(1) and (2), now s. 182(1) and (2), of the MVA. In Bhupal, the plaintiff pedestrian was
killed when she was struck by the defendant driver who was backing out of her
driveway. The plaintiff was walking on the road at the time she was struck
despite that there was a passable sidewalk available to her on the other side
of the road. Although she was in violation of the MVA in walking
on the roadway, the plaintiff was not found contributorily negligent as the
court found that the plaintiffs position on the roadway was not an effective
cause of her death as the defendant driver had lost control of her vehicle, and
the plaintiff could not have reasonably perceived the danger that the
defendants car presented.
[24]
In Otsuji v. Waslen, [1991] B.C.J. No. 3909 (S.C.), the plaintiff
pedestrian was struck by the defendant driver while walking along the roadway
towards his car which was parked in the parking lane along the roadway. The
accident occurred on a dark and rainy night in an area that was moderately
well lit and the plaintiff was wearing dark clothing. The court found that,
even had the plaintiff walked on the available sidewalk to his car, he would
have had to stand on the street and share the street at some point with any
vehicular traffic, at least momentarily, while he got into his car. Despite
finding that the plaintiffs position on the roadway was inevitable, at least
for a short period of time, the court found the plaintiff 25% liable for his
own injuries because he did not keep a proper lookout for approaching vehicles.
[25]
In the case at bar, I find that the plaintiffs breach of her statutory
duties under the MVA did contribute to the accident and, consequently,
the injuries she sustained. Because she chose to walk along the roadway behind
the diagonal parking stalls, the plaintiff made herself less visible to the
defendant than had she chosen to cross the intersection within the unmarked
crosswalk according to her duties under the MVA. While the plaintiff
believed the defendant driver saw her and was waiting for her to cross the
intersection, she should have reasonably perceived the danger the defendants
car presented given the minimal lighting in the intersection and given that a
driver would not expect pedestrians to emerge into the intersection from the other
side of the parking stalls when there was a sidewalk and crosswalk available to
her.
[26]
I conclude that liability should be apportioned 75% to the driver and
25% to the plaintiff.
Failure to Ascertain the Identity of the Driver
[27]
The defendant driver and her passenger husband
acted responsibly after the collision. They went to the plaintiffs aid,
assisted her to her feet and offered a ride to the hospital. The plaintiff
declined, asking instead to be driven home. The driver complied and then waited
at the residence until the plaintiff indicated that they could leave.
[28]
The plaintiff did not seek any information as to
the identity of the driver or the licence plate of the vehicle. The plaintiff
testified that, following the collision, she was out of it, running on
adrenalin and simply wanting to go home to be with her husband. I accept the
evidence of those who observed her at home after the collision who variously
described the plaintiff as out of it, dazed, shaking, white in the face with
blotchy red marks, unusually quiet and withdrawn. I also accept the evidence of
her husband that she talked nonsense and gave answers not responsive to his
questions. All of this is consistent with a laymans understanding of shock.
[29]
The plaintiffs awareness of pain and other
symptoms increased rapidly with time and an ambulance was called to take her to
hospital. She was treated over several hours for a wrist fractured in two
places and a severely strained ankle.
[30]
It appears that police were called that evening
and began their investigation the following day. The defendant was also
promptly notified.
[31]
Thereafter the plaintiff acted in a determined
manner in endeavouring to identify the vehicle and driver. She and her husband
posted a notice on a pole adjacent to the scene of the accident. While doing
so, she observed what she believed to the same vehicle taking the same path as
on the evening of the accident. She and her husband gave chase, to no avail.
[32]
On other occasions, the plaintiff took up
surveillance in that area in the not unreasonable hope that the vehicle might
drive by again.
[33]
She also accosted the driver of a vehicle
observed in a mall parking lot as she believed that the drivers vehicle may
have been the vehicle that struck her.
The Law
[34]
Section 24(5) of the Insurance Act states
that a party cannot receive judgment against the Insurance Corporation of British
Columbia as nominal defendant in a hit and run accident unless the court is
satisfied that:
(b) the identity
of those persons or that person, as the case may be, is not ascertainable.
[35]
Under subsection (a), the claimant is required
to make all reasonable efforts, not best efforts, to determine the identity of
the unknown driver or owner: see Godara v. Insurance Corp. of British
Columbia, 2008 BCSC 183, 58 C.C.L.I. (4th) 183 at para. 43.
[36]
In determining whether a claimant has made all
reasonable efforts, the court must have regard to the subjective condition of
the claimant at the time of the accident: see Leggett v. Insurance
Corporation of British Columbia (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R.
(2d) 201 (C.A.) [Leggett cited to B.C.L.R.] at para. 12. Therefore,
where a claimant fails to obtain the identity of the driver or owner at the
time of the accident because she was in a state of shock, the claimant will not
be held to have acted unreasonably. In order to find that a claimant was in a
state of shock, medical evidence is not required; a finding that the claimant
was taken by surprise and confused is sufficient: see Hocaluk v. Insurance
Corp. of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360 at para.
56.
[37]
Under subsection (b), the phrase not
ascertainable should not be strictly interpreted to mean could not possibly
have been ascertained but, rather, whether the identity of the person could
not have been ascertained had the claimant made all reasonable efforts, having
regard to the claimants position: see Leggett at para. 11.
Conclusion Regarding Ascertaining Identity of Driver
[38]
I am satisfied that the plaintiff was in a
significantly altered emotional state following the collision that rendered her
incapable of rationally assessing her duties and obligations. With the meaning
of Leggett, she was not in a condition that it would have been
reasonable for her to discover and record the appropriate information.
[39]
Once recovered, she employed all reasonable
efforts to ascertain the identity of the owner and driver. While not all
possible efforts were employed, those that were fall well within the
classification of reasonable.
Summary
[40]
The plaintiff is entitled to judgment for 75% of
her damages in an amount yet to be determined, together with costs, with leave
to apply.
Josephson J.