IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100720

Docket: S75162

Registry:
Kelowna

Between:

Shaun Daniel
Walter

Plaintiff

And

Leslie Plummer

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
This is an action for damages arising out of an accident between a
motorcyclist and a pedestrian. Only liability is at issue at this juncture.

[2]            
The accident occurred shortly after 3 p.m. on September 12, 2002, when
the plaintiff, who was jaywalking across Rutland Road, was struck by the
defendant who was driving a motorcycle. There are two issues: the first is
whether the plaintiff has established that Ms. Plummer was negligent; the
second is whether Mr. Walter was contributorily negligent.

The Accident

[3]            
The accident happened about 100 meters north of the intersection of
Rutland Road and Leathead Road. Rutland Road is a paved arterial road that runs
north and south. Leathead Road runs east and west. The intersection of the two
streets is controlled by traffic lights. On the east side of Rutland Road,
north of its intersection with Leathead Road, there are two schools: Rutland
Senior Secondary and Rutland Middle School. Both schools are substantial. In
2002, they had a combined enrolment of in excess of 1,000 students. The area
surrounding the schools is predominantly residential.

[4]            
Both schools are dismissed for the day within a few minutes of each
other just after 3 p.m., and when they are, the surrounding area is congested.
There are parents coming and going to pick up their children and students and
staff leaving for the day. Many of the students leave on foot.

[5]            
Rutland Road, where it fronts the two schools, is straight and flat.
Abreast of the Rutland Middle School (the most northerly of the two schools), it
consists of one lane in each direction. Closer to the intersection, and abreast
of the secondary school parking lot, it widens. For southbound traffic, there
is a dedicated right turn lane, a through lane, and a dedicated left turn lane;
for northbound traffic, there is a single through lane with a wide shoulder.
Across from the Rutland Secondary School parking lot and on the west side of
Rutland Road, there is a city bus stop. In the vicinity of the two schools,
Rutland Road is a designated school zone and has a posted speed of 30
kilometres per hour. The school zone ends just south of the bus stop and the
speed limit reverts to 50 kilometres per hour.

[6]            
It was sunny on September 12, 2002, and the roads were dry. Mr. Walter
was a 16-year-old Grade 11 student at Rutland Senior Secondary. He had taken
some personal mementos to school with him that day for use in one of his
classes. He had these in a cardboard box that measured approximately two feet
by two feet. He was carrying that box as he left school just after 3 p.m.
He planned to walk home, and to do that, he planned to walk east along Leathead
Road. There is a pedestrian crosswalk at the intersection of Leathead Road and
Rutland Road. Many students, however, simply cross Rutland Road in the area of
the school parking lot, either to access the bus stop on the opposite side of
the road or simply to avoid walking the extra distance required to use the
pedestrian crosswalk at the traffic lights. Mr. Walter chose that route
that day to cross.

[7]            
Ms. Plummer was, and is, a certified education assistant at the middle
school. She has worked at that school since 1996. In May 2002, she purchased a
Honda CRB 600 motorcycle, which she drove to work when weather permitted. She
drove that motorcycle to work on September 12th and parked it in the small
parking lot behind the school. When classes were dismissed, she left the
school. She approached Rutland Road from the east, intending to turn left or
south en route to Leathead Road where she planned to turn right and carry on to
her home.

[8]            
When Ms. Plummer arrived at Rutland Road using the school parking
lot access road, she stopped. She looked to her left and saw that the traffic
light at the intersection of Leathead Road was red for traffic on Rutland Road.
As a result, the northbound lane of Rutland Road was empty, and the southbound
lane was filling up with vehicles slowing down for the red light. A driver in
the southbound lane stopped to allow Ms. Plummer to turn left and into
that lane. Once in the southbound lane, she proceeded to a point just beyond
where the road expands to include a right turn lane. She then moved into that
lane. It was empty; there were no cars in it between her and the Leathead
intersection. Both the through lane and the left turn lane were full of
vehicles, and those vehicles were stopped.

[9]            
As Ms. Plummer proceeded along the right turn lane, she noticed a
large tractor-trailer truck to her left. It was stopped in the line of through
traffic. As a result, her view of the left turn lane and the through lane in
front of the truck was entirely obscured. As Ms. Plummer was proceeding
along Rutland Road, Mr. Walter was walking across the street. When he
started across, he noticed the empty northbound lane and saw the vehicles
stopped in the left and through southbound lanes. He crossed on a diagonal,
passing in front of the large tractor-trailer truck. As he emerged from in
front of it, he did not stop or look to his right to determine whether he could
proceed safely. Ms. Plummer first saw Mr. Walter when he emerged from
in front of the truck. She braked and attempted to steer to avoid striking him.
She was unsuccessful. After striking Mr. Walter, she and her motorcycle
went down to the pavement and slid and tumbled to a stop some distance down the
road. The motorcycle came to rest on top of Ms. Plummer. Mr. Walter
was thrown to the northeast and landed against the curb. Both Mr. Walter
and Ms. Plummer were seriously hurt, and neither of them can recall the
actual collision.

[10]        
There were three eye witnesses to the accident. They all saw the
collision or its immediate aftermath from different perspectives. Ms. Lemieux
was the first car in line in the left turn lane northbound on Rutland Road at
the Leathead intersection. The accident happened more or less in front of her.
She saw Mr. Walter crossing the road, travelling from her right to left.
She described him as “just strolling”. She said that she momentarily lost sight
of him as he entered the line of traffic in the through southbound lane. She
thought that he might have gotten into one of the cars. She said that he then
appeared or “popped up” just as he walked into the right turn lane. At that
point Ms. Lemieux was in the process of turning left herself. She saw the
impact as she glanced to her right. Ms. Salisbury, who was turning left
onto Rutland Road much as Ms. Plummer had done, except from a point closer
to the intersection with Leathead Road, did not see the actual collision. What she
did see, as she was making her turn, was Ms. Plummer’s motorcycle
“tumbling through the air”. The third eye witness was Ms. White and she had
the best view of the accident. She was there to pick up her daughter from
school. She had parked across Rutland Road from the middle school to wait.
After picking up her daughter and some of her friends, she approached Rutland
Road from the west, intending to turn right or south towards Leathead Road. At
that point, Rutland Road has a single southbound lane. Ms. White saw Ms. Plummer’s
motorcycle approaching, and she waited for it to pass in front of her. Once it
did, she pulled in behind it. She followed it into the right turn lane. She saw
Mr. Walter only when he emerged from in front of the truck. She thought Ms. Plummer
was going the speed limit as she passed in front of her. She did not think that
there was anything Ms. Plummer could have done to avoid the collision.

[11]        
Although the police investigated the accident, they purged their file
some years ago before they realized it may be necessary for purposes of this
litigation. All that remains are photographs they took of the scene.

[12]        
None of the foregoing is in dispute. What is in dispute is how fast Ms. Plummer
was driving and whether, whatever her speed, her driving was negligent. Mr. Walter
effectively concedes that he was contributorily negligent; the only issue is
the degree of his contributory negligence.

Analysis

[13]        
In addition to the eye-witness evidence, both the plaintiff and the
defendant called mechanical engineers. Dr. Toor prepared a report and gave
evidence on behalf of the plaintiff. He provided an opinion as to the likely
speed that Ms. Plummer was travelling, both at the point her motorcycle began
to slide on the pavement and when she first perceived Mr. Walter in her
path of travel. Mr. Goudie prepared a report and testified on behalf of
the defendant. He critiqued Dr. Toor’s analysis and offered his own
opinion about the defendant’s speed and her likely ability to avoid the
collision.

[14]        
Ms. Plummer testified that when she pulled onto Rutland Road, she
was within the school zone. She said that she typically shifts from first to
second gear at about 25 kilometres per hour and that she shifted into second
gear while she was still in the through lane. She said that she was travelling
about 35 kilometres per hour when she pulled into the right turn lane. She said
that she did not shift again or accelerate (or decelerate) before she saw Mr. Walter.
She was categorical in her evidence that the fastest she was travelling was 35
kilometres per hour. Oddly, and almost in the same breath, she said that she
was a good “10, 15 km/per hour” below the posted speed which, by the time she
had entered the right turn lane, had reverted to 50 kilometres per hour. When
she gave a statement to an insurance adjuster six days after the accident, she
estimated her speed at between 35 to 40 kilometres per hour. On examination for
discovery, she acknowledged that she was being accurate and truthful when she
gave that statement. None of the other eye witnesses were able to estimate her
speed with any precision. Only Ms. White was in a position to provide any
estimate at all, and all she could say was that she thought Ms. Plummer
was doing the speed limit while she was in the school zone.

[15]        
Dr. Toor’s opinion is that Ms. Plummer was travelling between 40
and 50 kilometres per hour when she hit the plaintiff. Ms. Plummer
testified that she applied her brakes fully once she saw Mr. Walter in her
path of travel. According to Dr. Toor, if account is taken of the speed
lost due to Ms. Plummer’s braking and the impact with Mr. Walter, her
pre-braking speed was between 45 and 55 kilometres per hour. Mr. Goudie
concluded that Ms. Plummer was travelling at between 31.5 and 35.3
kilometres per hour at onset of her motorcycle’s slide. He agrees that some
speed would have been lost due to her momentary braking and her impact with Mr. Walter
but is of the view that, in this case, it is impossible to quantify that loss.

[16]        
I am unable to place much weight on the expert evidence of speed for a
number of reasons. Both Dr. Toor and Mr. Goudie agree that the speed
of a sliding motor vehicle can be calculated based on the distance of its slide.
The calculation is a function of the sliding distance and the coefficient of
friction between the vehicle and the road surface. Both of these variables are
significantly uncertain in this case.

[17]        
Dr. Toor went to the scene in 2010 some eight years after the
accident. He had the RCMP photographs, which he used to attempt to determine
the distance Ms. Plummer’s motorcycle slid. The photographs showed a
number of orange cones placed at various locations in the vicinity of the
accident. The investigating officer who placed or directed the placement of
those cones did not testify because he could not recall the event and, without
the police file, could not explain the significance of the placement of the
cones. What the pictures do show is a quantity of discarded bandage packaging
beside one of the cones more or less in the middle of the right turn lane. Dr. Toor
assumed that was the point at which Ms. Plummer received medical attention
and the point at which the motorcycle came to rest. Compounding the difficulty
in determining the terminal point of the motorcycle slide is the fact that by
the time the police photographs were taken, the motorcycle itself had been
moved off to the side of the road. In any event, there are what appear to be
scrape marks on the pavement, and they appear to start near the bandages and end
adjacent to both another orange cone and another scrape mark in the pavement. Dr. Toor
inferred that this latter point was the onset of the slide. There is no record
of the distance between these two points in what remains of the police file. Dr. Toor
estimated the distance by reference to the apparent location of the assumed end
points and certain fixed objects in the photographs, objects which remain in
place today. Thus, the slide-to-stop distance is uncertain, in part because
both of the end points are uncertain and because the distance between the two points
Dr. Toor assumed, or inferred to be the end points, is uncertain.

[18]        
The second variable is the coefficient of friction. In the case of cars
skidding to a stop on pavement, the coefficient of friction can often be
determined with some precision. In the case of a motorcycle sliding on its
side, the number of variables to be accounted for in determining the
coefficient of friction is greater and the range of possible values is broader.
In the result, the coefficient of friction for sliding motorcycles can rarely be
known with much precision. Engineers have done tests of motorcycles sliding to
a stop on their side from a known speed. They have calculated the coefficient
of friction based on these tests. There are three problems with the application
of those test results in the circumstances of this case. First, the tests were
done on motorcycles that had full fairings, partial fairings, and no fairings
at all. The presence of a fairing will usually result in a longer sliding
distance because of the lower friction between the motorcycle and the road. Ms. Plummer’s
motorcycle had a fairing. The experts disagree as to whether it is a
fully-faired motorcycle or only a partially-faired motorcycle. They therefore
disagree on the applicable coefficient of friction. Second, unlike a skidding
car, a sliding motorcycle will rarely slide in precisely the same way twice.
Foot pegs, handlebars, rear-view mirrors, and brake and gear pedals may catch
the pavement one or more times during the course of a slide. All of these
possibilities may affect the actual coefficient of friction during any
particular slide. Finally, the eye-witness evidence in this case supports the
conclusion that Ms. Plummer’s motorcycle did not slide continuously to a
stop. Ms. Salisbury saw it “tumbling through the air”. Moreover, the motorcycle
came to rest on Ms. Plummer’s head. Ms. Plummer’s Kevlar reinforced
jacket was damaged beyond repair from sliding on the pavement. Thus, for at
least some distance after its impact with Mr. Walter, the motorcycle was
airborne. In addition, it may have travelled some distance on top of Ms. Plummer.
All of these specific variables simply render more uncertain that which was
significantly uncertain to begin with.

[19]        
When all of these variables and unknowns are considered together, the
result is necessarily of limited value. In addition, slide-to-stop only
provides a theoretical speed at the outset of a slide. To determine the
pre-accident speed, account must be taken of the velocity lost due to, in this
case, contact with Mr. Walter and the effect of the limited braking that Ms. Plummer
did. The precise effect of each of these adds to the uncertainty of the result.

[20]        
In an effort to check the reliability of his estimate of speed based on
slide-to-stop, Dr. Toor estimated Ms. Plummer’s speed based on the
distance that Mr. Walter was thrown by the impact. He concluded that this
analysis supported his conclusions based on slide-to-stop. I find it of little
value because there are at least as many significant uncertainties associated
with it as there are with respect to the slide-to-stop analysis. To calculate
speed based on pedestrian projection, it is necessary to know the distance the
pedestrian was thrown. In this case, while Mr. Walter’s final resting
point is known with certainty (he landed by a sewer grate, which remains in
place), the point of impact is uncertain. The best that Dr. Toor could do was
estimate it within about 4 metres. He concluded that Mr. Walter was thrown
between 7 and 11 metres. Next, it is necessary to know the “projection
efficiency”, that is, how much energy from the motorcycle and rider were
imparted to the pedestrian. As with the coefficient of friction, Dr. Toor
and Mr. Goudie disagree on the issue of the projection efficiency. In
fact, their disagreement is more fundamental: Mr. Goudie considers it
inappropriate to use projection efficiency analysis at all because, unlike
pedestrian and car or truck impacts, which involve large flat objects striking
a person, a collision between a pedestrian and a motorcycle may have quite
different dynamics.

[21]        
Mr. Goudie, using a lower coefficient of friction than Dr. Toor,
estimated the speed of Ms. Plummer’s motorcycle at the beginning of its
slide as “likely 31.5 to 35.3 km/hr”. Although Mr. Goudie takes issue with
Dr. Toor’s methodology, he agrees that if Ms. Plummer braked for 0.2
seconds, her motorcycle would have slowed by 3.9 kilometres per hour. I am
satisfied, based on Ms. Plummer’s own evidence, that she fully applied
both her front and her rear brakes prior to impact and did so for at least 0.2
seconds. Further, I am satisfied that some speed would have been lost due to
the impact between the motorcycle and Mr. Walter. Finally, I note Ms. Plummer’s
own estimate of her speed as between 35 and 40 kilometres per hour. Based on
all of this evidence, I am satisfied that she was travelling at or near
40 kilometres per hour when she saw Mr. Walter emerge from in front
of the tractor‑trailer truck.

[22]        
Both Dr. Toor and Mr. Goudie gave evidence about what they
describe as “avoidance scenarios”. These scenarios involve an analysis of the
time that Mr. Walter was visible to Ms. Plummer and the normal
perception-response time of drivers. Mr. Goudie testified that the normal
perception-response time of “unalerted” drivers is 1.9 seconds. He concluded
that, depending upon the distance that Mr. Walter travelled and the speed
at which he travelled it, the time that he was visible to Ms. Plummer was
“likely around 1.2 to 1.7 seconds”. Based on this, he concluded that:

…regardless
of the motorcycle speed, the time it took for Mr. Walter to enter Ms. Plummer’s
field of view and walk to the point of impact was within the normal range of unalerted
perception-reaction times. This means there was probably little or no
opportunity for Ms. Plummer to avoid the collision.

(emphasis
added)

[23]        
Dr. Toor approached the matter differently. He used various
motorcycle impact speeds, various distances during which the pedestrian was
visible, and the corresponding time that the pedestrian would have been
visible, and calculated the motorcycle pre-braking speed. Finally, he
determined how much slower the motorcycle would have had to have been going in
order to avoid the collision (on this analysis, the collision would have been
avoided not because the motorcycle stopped but because Mr. Walter would
have passed out of its path of travel). This exercise yielded a range of
“avoidance speeds” of between 35 and 54 kilometres per hour.

[24]        
These opinions both rest, in part, on the speed at which Mr. Walter
was walking. How fast he was walking is also relevant to the negligence
analysis generally. He testified that he crossed on a diagonal. On examination
for discovery, he said he was crossing relatively quickly “for the most part”.
He said, however, and I accept, that he was not in a particular hurry. He was
carrying a box of his personal valuables and was being careful about them. Ms. Lemieux
said that he appeared to be “just strolling”. Finally, there was no particular
need to hurry due to traffic. The northbound lane was empty and the two
southbound lanes were full of stationary vehicles. He saw the light at the
Leathead intersection was red for Rutland Road traffic, and reasoned that until
it changed, there was no risk of northbound traffic and no risk that the
southbound traffic would begin to move. He said that he kept an eye on the
light as he crossed. His last memory is that it was still red.

[25]        
I am satisfied that Mr. Walter was crossing the street at a casual
walking pace, neither particularly fast nor particularly slow. Ms. Plummer
was travelling approximately one to two feet to the left of the mid-point of
the southbound right turn lane. She saw Mr. Walter for the first time when
he emerged from in front of the tractor-trailer truck and walked into her path
of travel.

[26]        
Based on Dr. Toor’s and Ms. Plummer’s evidence, I am satisfied
that the point of impact between Mr. Walter and Ms. Plummer’s
motorcycle was two or three feet into the right turn lane and that Mr. Walter
was visible to Ms. Plummer for perhaps two more feet as he passed from in
front of the tractor-trailer truck to the boundary of the right turn lane.

[27]        
I find this evidence of only limited assistance. As with the evidence of
speed, it is based on a number of variables. Of interest, however, and relevant
to the assessment of negligence more generally, are the categories of drivers’
states of alertness when measuring perception-response time. Researchers
divided the drivers they tested into a number of categories, two of which are “alerted”
and “unalerted”. Alerted drivers are those expecting or ready for a hazard,
although they may not know the precise form it will take. Unalerted drivers are
paying attention but not on notice of any untoward hazard. The
perception-response time for unalerted drivers, based on a widely regarded
study by P.L. Olson (Olson, P.L.; Cleveland, P.S.; Fancher, L.P.; Kostyniuuk,
L.P.; and Schneider, L.W; “Parameters Affecting Stopping Sight Distance”,
National Cooperative Highway Research Program Report 270, Transportation
Research Board, National Research Council, Washington, D.C., June, 1984) is
that they generally take 1.1 seconds to respond to a hazard. Dr. Toor used
this study and that perception-response time in his analysis. Mr. Goudie
used a study by N. Lerner (Lerner, N.; Huey, R.; McGee, H.; Sullivan, A.;
“Older Driver Perception-Reaction Time for Intersection Sight Distance and
Object Detection”, U.S. Department of Transportation, Federal Highway
Administration, Publication No. FHWA-RD-93-168, January, 1995) because he
felt that the nature of the hazard which drivers in that study were presented
with more closely approximated the situation that Ms. Plummer faced. It
was from that study that Mr. Goudie drew the 1.9 second normal response
time which he relied on to conclude that Ms. Plummer had little or no
opportunity to respond in the situation that developed in front of her.

[28]        
In Olsen’s study, alerted drivers responded to the presence of a hazard
in about 0.7 seconds. There is no evidence of the “alerted” drivers’ response
in the Lerner study. If Ms. Plummer had been expecting a hazard or was, in
the nomenclature of the research, in an “alerted” state, then assuming her
response time was within the normal range, she would have had an opportunity to
avoid the accident. I note all of this in part because Mr. Goudie’s
conclusion that Ms. Plummer “probably” had little or no opportunity to
avoid the accident rests on the response times of “unalerted” drivers. In
addition, it underlines the significance of being alert to possible hazards,
something of significance to the negligence analysis more generally.

[29]        
The law imposes both statutory and common law duties on pedestrians and
drivers. The statutory duties are found primarily in the Motor Vehicle Act,
R.S.B.C. 1996, c. 318. The relevant sections in the circumstances of this
case are s. 179, s. 180 and s. 181. They provide in part as
follows:

179 (1)
Subject to section 180, the driver of a vehicle must yield the right of way to
a pedestrian where traffic control signals are not in place or not in operation
when the pedestrian is crossing the highway in a crosswalk and the pedestrian
is on the half of the highway on which the vehicle is travelling, or is
approaching so closely from the other half of the highway that he or she is in
danger.

(2) A pedestrian must not leave a
curb or other place of safety and walk or run into the path of a vehicle that
is so close it is impracticable for the driver to yield the right of way.

180 When
a pedestrian is crossing a highway at a point not in a crosswalk, the
pedestrian must yield the right of way to a vehicle.

181  Despite
sections 178, 179 and 180, a driver of a vehicle must

(a) exercise due care to avoid
colliding with a pedestrian who is on the highway,

(b) give warning by sounding the
horn of the vehicle when necessary, and

(c) observe proper precaution on observing a child or
apparently confused or incapacitated person on the highway.

Superimposed on these statutory duties are the duties
imposed by the common law of negligence (see generally Karran v. Anderson,
2008 BCCA 429 at para. 10; Cook v. Teh (1990), 45 B.C.L.R.
(2d) 194, 68 D.L.R. (4th) 602 (C.A.); and Mendoza v. Johnson, [1992]
B.C.J. No. 1160 (S.C.) at p. 4).

[30]        
The intersection and occasional tension between these duties is
illustrated in the authorities to which counsel point in support of their
respective positions. The plaintiff argues that the presence of pedestrians who
might seek to cross Rutland Road contrary of the provisions of the Motor
Vehicle Act was a reasonably foreseeable hazard. He argues that to proceed
at 40 kilometres per hour in those circumstances is to fail to exercise the
degree of care required. In support, he points to Nelson (Guardian Ad Litem
of) v. Shinske (1991), 62 B.C.L.R. (2d) 302, [1992] 2 W.W.R. 547
(S.C.); Lemesurier v. McConnachie, 2009 BCSC 89; Bell v. Thorner,
2009 BCSC 44; and Simpson v. Baechler (2009), 88 B.C.L.R. (4th) 30, 2009
BCCA 13, among others.

[31]        
Counsel for the defendant argues that Ms. Plummer was driving below
the posted speed limit and paying attention to the circumstances around her. He
suggests that to impose liability in these circumstances is to demand a
standard approaching perfection, something the law does not require. He likens
the defendant’s situation to that of the defendants in, among other cases, Clifford
v. Slater (2007), 43 M.V.R. (5th) 252, 2007 BCSC 177; Mendoza; and Beauchamp
v. Shand, [2004] B.C.J. No. 385, 2004 BCSC 272. The claim against the
defendants in each of these cases was dismissed.

[32]        
In Nelson, the pedestrian plaintiff was crossing a street just
before 1 a.m. when she was struck by the defendant. Although the plaintiff was
in a crosswalk, she was crossing against the traffic lights. Fraser J. put the
issue as follows (at p. 2):

Courts have repeatedly grappled
with the problem presented when a vehicle driven by someone who is observing
all the traffic regulations runs down a pedestrian who is not; or collides with
a vehicle being driven by a motorist who is not. What is at issue in these
cases is the extent to which the law-abiding motorist is entitled to proceed on
the assumption that pedestrians and other drivers will also observe the traffic
rules.

He then reviewed the authorities
and distilled four principles from them:

(1)        Users
of the streets are entitled to proceed upon the assumption that other users of
the streets will observe traffic regulations;

(2)        The
right to drive or walk on that assumption is not an absolute one;

(3)        There
is no obligation, as one proceeds, to maintain special preparation for an unforeseen
emergency or a mere possibility;

(4)        If, on
the other hand, the possibility of the danger which in fact materialized is
reasonably apparent, the failure to take precautions is negligence. (at
p. 5)

(emphasis
added)

[33]        
In Lemesurier, the plaintiff was leaving a concert in downtown
Trail sometime after 11 o’clock in the evening. She was struck as she walked
across a four-lane arterial street. The defendant was driving below the speed
limit and was aware that there were people in the vicinity. She did not see the
plaintiff until moments before the impact. McEwan J. described the
circumstances this way:

[12]      The evidence is, then,
that the plaintiff was attempting to cross the road outside the crosswalk, and
contrary to the traffic signal, when she was struck by the defendant, who had
the right of way, and was not speeding or otherwise in obvious breach of the
rules of the road.

After reviewing the authorities
and concluded that:

…absent known circumstances which
materially affect the reasonableness of assuming that others will obey the
rules of the road, the court ought not to adjust the applicable duty premised
on what a putative "reasonable person" in the position of the
defendant ought to have seen.

Where, however, there are
circumstances known to a motor vehicle operator, that render questionable the
presumption that the rules of the road will be respected by pedestrians, the
exercise of due care is not met by behaving in accordance with the presumption.
One cannot be deemed to presume facts at odds with known circumstances… (paras. 20-21)

Applying those principles to the circumstances before him,
McEwan J. concluded that the plaintiff pedestrian was 60 percent responsible
for the accident and the defendant driver 40 percent responsible.

[34]        
In Bell v. Thorner, the pedestrian plaintiff was crossing the
road in an unmarked, uncontrolled crosswalk. It was dark and the weather was
poor. The plaintiff was wearing dark clothing. The defendant was driving at the
speed limit. An engineer testified that there was little possibility of the
defendant avoiding the collision if travelling at the posted speed limit. He also
testified, however, that a driver who was “alerted” to the presence of
pedestrians and driving at less than the posted speed would have had a very
good chance of avoiding the collision. Humphries J. held that although the
defendant was driving at the prescribed speed, the prevailing conditions were
such that driving at that speed made it almost impossible to avoid an accident
(para. 35). As a result, she found the defendant negligent. She found the
plaintiff negligent also for failing to take due care for his own safety. She
apportioned liability equal between the parties.

[35]        
Finally, in Simpson v. Baechler, the plaintiff, who was wearing
dark clothing, stepped off the curb from behind a wooden utility pole into a
marked crosswalk at night in the rain. He was struck by the defendant who was
driving at or perhaps just under the posted speed limit. The trial judge found
the defendant driver was not negligent. On appeal, the court concluded that he
was. In doing so, Finch J.A. commented on the fact that a utility pole obscured
the driver’s view of the pedestrian and the pedestrian’s view of the driver. He
wrote:

There is no doubt that the
utility pole created a dangerous situation for both motorists and pedestrians…there
was every reason for all motorists…to approach that intersection with greater
than usual care. (paras. 38 and 40)

The defendant’s negligence lay
in the fact that he did not use greater than usual care. Specifically:

…He did not slow down, and he did
not cover the brake with his foot. He proceeded as though he did not have to
concern himself with the possibility of a pedestrian crossing…on a dark rainy
night at a poorly lit intersection where there was a marked crosswalk. (para. 41)

The Court of Appeal held the
defendant 20 percent at fault.

[36]        
In each of the foregoing cases, there was something in the circumstances
that gave rise to a duty on the part of the motorist to exercise more care than
simply obeying the prevailing speed limit. It is the absence of such special
circumstances in Clifford, Mendoza and Beauchamp that
caused the court in those cases to conclude that the defendant motorist was not
liable.

[37]        
In Clifford, the plaintiff was crossing the Dewdney Trunk Road in
the middle of a clear and sunny afternoon. The Dewdney Trunk Road is a busy
arterial road in Maple Ridge. The plaintiff was crossing otherwise than at a
crosswalk. She emerged from behind a large telephone pole that obscured the
view that oncoming drivers, including the defendant, had of her. Vickers J.
held that the defendant was driving at between 20 and 40 kilometres per hour,
not an “unsafe speed” in the circumstances. There was nothing to suggest that
there was any reason for the defendant to anticipate the presence of
pedestrians.

[38]        
In Mendoza, the plaintiff was jaywalking across Hastings Street
in the dark. Hastings Street, at the location of this accident, is six lanes
wide. The defendant was driving at or near the speed limit. The plaintiff was
wearing dark clothing. Saunders J. (as she then was) concluded that, in the
circumstances, the defendant could reasonably conclude that she would have a clear
path of travel in front of her; that is, there was no reason to conclude that
pedestrians would be in the area. On that basis, the action was dismissed.

[39]        
Beauchamp also involved an accident on Hastings Street. The
plaintiff crossed otherwise than in a crosswalk on a section of Hastings Street
that had six lanes of travel. The plaintiff was walking quickly and had cleared
five of the six lanes of travel when she was struck by the defendant. The
defendant was driving “well within the speed limit”. All of the witnesses to
the accident testified that they had never seen a pedestrian attempting to
cross Hastings where the plaintiff did. Wedge J. concluded that the defendant
was not liable because he was driving within the posted speed limit and paying
attention. Further, there was nothing to suggest that there would or might be
pedestrians on that section of the road.

[40]        
These cases illustrate the importance of the prevailing circumstances,
either known to the defendant or foreseeable by a reasonable person in the
defendant’s situation.

[41]        
There are several significant features of the circumstances facing Ms. Plummer
that serve to elevate the degree of care required.

[42]        
The first is the reasonably foreseeable risk of jaywalking pedestrians.
The defendant was aware that students frequently jaywalked across Rutland Road.
Ms. White said that, in her experience, there were many jaywalking
students in that area shortly after the schools are dismissed. Further, the
risk was not just of any jaywalking pedestrians but of students. The fact that
the foreseeable pedestrians would be students is significant because young
people may take less care for their own safety than adults.

[43]        
A second and related circumstance is that Ms. Plummer knew that the
northbound lane was empty and that the vehicles in the left turn and through southbound
lanes were stopped. The prospect of students jaywalking in that situation is
higher than it would be if there was traffic moving in both directions.

[44]        
Finally, and significantly, Ms. Plummer was passing a
tractor-trailer unit stopped in the through lane. That truck entirely
obstructed her view of the through lane in front of it. If there were
pedestrians attempting to cross, it would have been apparent to her that she
would not be able to see them.

[45]        
All of these features serve elevate the degree of caution necessary to
meet the standard of care. To proceed at 40 kilometres per hour passing a
stationary truck in an area known to be frequented by jaywalking students is
negligent. It is a situation in which a driver ought to have been proceeding in
an “alerted” state, to borrow from the categories used in the
perception-response studies.

[46]        
As to Mr. Walter, he owed a duty to take reasonable care for his
own safety. He breached that duty in a number of ways. He crossed other than at
a marked crosswalk, and thus contrary to the statutory obligations he was
under. Further, just as it should have been apparent to Ms. Plummer that
she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter
that he could not see oncoming traffic. Finally, and most significantly, unlike
Ms. Plummer who was looking where she was going, Mr. Walter did not
look into the oncoming lane at all to determine if he could safely cross. His
negligence is greater than that of Ms. Plummer. I apportion liability 60
percent to Mr. Walter and 40 percent to Ms. Plummer.

“G.M.
Barrow, J.”

The
Honourable Mr. Justice Barrow