IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100915

Docket: M39025

Registry:
Vernon

Between:

Inquala Dan Vedan,
by his guardian ad litem, Ned Edward Alexis

Plaintiff

And

Alfred Peter
Stevens

Defendant

And

Joan Zabotel and Derrick
Zabotel

Third
Parties

Before:
The Honourable Madam Justice Beames

Oral Reasons for Judgment Re: Liability

[1]          
THE COURT: On
July 16, 2004, the infant plaintiff, Inquala Vedan, was injured in a motor
vehicle accident. By consent order, the parties agreed that the issues of
liability and quantum would be tried separately, with liability being tried
first. These are my reasons with regard to liability.

[2]          
Inquala Vedan is 18 years old. The accident
occurred three days after his 12th birthday.

[3]          
The defendant is now 72 years old. He was 66 at
the time in question. He is a counsellor from Fairbanks, Alaska.

[4]          
The third parties are the mother and stepfather
of the infant plaintiff.

[5]          
All of the parties were in the Chase area of
British Columbia on July 16, 2004, for a Sun Dance ceremony which the defendant
and the third parties described as a religious and cultural ceremony which
lasts for several days.

[6]          
The plaintiff and his immediate family, namely,
the third parties and his three brothers, arrived at the ceremonial grounds on
the evening of July 15, 2004, and camped overnight.

[7]          
The defendant had arrived several days earlier. The
defendant estimates that approximately 150 people were in attendance at the
ceremony and on the grounds.

[8]          
The plaintiff’s mother said that she and her
immediate family knew a lot of the people there. Some were members of her
extended family. Others were members of the plaintiff’s stepfather’s extended
family. Some people were known to the Vedan/Zabotel family from other Sun Dance
ceremonies they had attended. The plaintiff and his parents had not previously
met the defendant, who had attended other Sun Dance ceremonies in the past but
not any of the previous ceremonies in Chase.

[9]          
On July 16, 2004, the weather was exceptionally
hot. The plaintiff’s mother appears to have spent a significant part of the
morning and early afternoon caring for her two youngest children who were 3 and
1 at the time. She visited and spent time in a home on the property which was
owned by friends of hers. The plaintiff’s stepfather was drumming at the
ceremony. Most of his time was spent at the arbour, which is a circular
structure covered with fir boughs or cedar boughs where the dancers dance
during the ceremony.

[10]       
The plaintiff got up with his stepfather before
sunrise on July 16th and then spent time on the grounds doing different things.
He helped the ladies in the kitchen, he played with other children, and he
worked as a smudge boy cleansing the air around the arbour for the dancers.

[11]       
Although the plaintiff’s mother testified that
either she or her then husband could see the plaintiff at all times, I find
that he was often out of sight of both of them. However, I do accept that the
plaintiff had many extended family members and family friends at the ceremony
and that, in fact, the very nature of the ceremony was that, in general, the
adults were looking out for all of the kids and the kids were helping out the
adults, as the defendant himself described.

[12]       
I also accept that the plaintiff’s parents had
instructed the plaintiff to check in from time to time and if he was going to
go anywhere.

[13]       
The plaintiff’s mother says that earlier in the
day, the plaintiff did check in with her to see if he, together with some other
children, could go and gather cedar or cedar boughs for the ceremony. She says
that he was with the defendant, who had driven his truck up to the house where
she was then with her two youngest children. She asked the defendant where they
were going and for how long, and he told her “not far” and “not long”. She
believed that they would just be gathering cedar around the site, and she
agreed. As there were four children and room in the cab of the truck for all of
them, she assumed that the children would be riding inside the truck, and it
did not occur to her to inquire about that.

[14]       
The defendant says that he has no recollection
of this exchange at all.

[15]       
Sometime later, the defendant, who was generally
helping around the ceremonial site, was asked by the ladies in the kitchen to
drive into Chase to get water. He agreed to do so. One of the women working in
the kitchen, Gwen Therrien, asked if she could come along as it was very hot
and the defendant’s truck had air conditioning. The defendant agreed. Some
children, including the plaintiff, asked to ride along as well, and again the
defendant agreed.

[16]       
I find that there were four children in total. Although
the defendant’s truck had six seats and six seat belts inside the cab, the
defendant either instructed or at least allowed the children to get into the
bed or box of his truck. He says that he instructed them to stay seated and not
to horseplay or monkey around. He says that he looked at them, and they
understood what he told them. He then got into the truck and drove to the
municipal campground in Chase. Most of the trip took place on a gravel road. It
was a 10- to 15-mile trip one way, according to the defendant’s estimate, which
took 20 to 25 minutes.

[17]       
While the defendant was driving to Chase, he had
his windows closed and the air conditioning turned on. He chatted with his
passenger and, to use his words, checked his rear-view mirror “very often” to
ensure the children were following his instructions. Because of the height of
the box walls of the box of the truck, the defendant could only see from the
shoulders and up of the children and obviously had a limited view given the
crew-cab style of his truck, the placement of the mirror, and where the
children were.

[18]       
The defendant, the four children, and Ms. Therrien
arrived in Chase without incident. Everyone washed up, and the five-gallon
water bottles or water jugs that had been provided by the ladies in the kitchen
were filled with water. The defendant says that he complimented the children on
their behaviour on the ride down, repeated to the children that they were to
remain seated and not to play around, and then everyone got back into the truck
into effectively the same places they were or had been in for the ride down.

[19]       
The defendant took the same route back towards
the ceremonial grounds. He says that he checked the children many times on the
return trip. He says that he was again driving with the windows up and the air conditioning
on, and that while he drove, he chatted with his passenger.

[20]       
It is the defendant’s evidence that he drove up
the hill towards the ceremonial grounds very slowly and that when he got to the
top of the hill, he was going 20 to 25 miles per hour.

[21]       
He first became aware of a problem when he heard
pounding on the cab of his truck. He looked in his mirror and saw a child
standing. He stopped the truck and determined that one of the children, the
plaintiff, was no longer in the truck box. He looked back, and he could see the
plaintiff lying in the middle of the road. The defendant drove back to where
the plaintiff was on the road. The plaintiff was moaning and moving his limbs. The
defendant decided not to wait for an ambulance. He loaded the plaintiff into
the back seat of his truck, sent the other children back to the ceremonial
grounds in another vehicle that had stopped at the scene, and drove the
plaintiff to the emergency clinic in Chase.

[22]       
The plaintiff was eventually loaded into an
ambulance and transported to the Vernon General Hospital, where he was in a
coma for a period of time and where he remained for some number of weeks.

[23]       
The defendant was interviewed by the police,
spoke briefly to the plaintiff’s parents, and then returned to the ceremonial
grounds where he stayed until the ceremony ended several days later.

[24]       
It is common ground that the plaintiff has no
recollection of the events of July 16, 2004, and he did not testify at the
trial. The other children who were in the box of the truck have not been
identified and/or located, and none of them testified at trial. The passenger
was not called as a witness. The defendant did not see what happened
before he heard the thumping or the pounding on the cab of his truck.

[25]       
The plaintiff and the third parties say that the
defendant should be found to have been negligent and to bear 100 percent of the
liability for the plaintiff’s accident.

[26]       
The defendant denies that he was negligent at
all, and he says that the plaintiff should be found 100 percent liable for his
own injuries on the basis that the plaintiff jumped from the box of the truck. Alternatively,
the defendant says that if he was negligent, the plaintiff was contributorily
negligent either for jumping or otherwise putting himself in a position whereby
he came out of the box of the truck.

[27]       
The defendant also says that the third parties
were contributorily negligent for failing to properly supervise the plaintiff
and/or for allowing the plaintiff to ride in the box of the truck.

[28]       
With regard to the latter, the defendant conceded
that he did not seek out the parents of any of the children to seek permission
before driving them to Chase in the box of his truck.

[29]       
Even if the plaintiff’s mother gave the
plaintiff permission to gather cedar or cedar boughs around the site with the defendant,
as she says she did but which the defendant does not recall, that permission
was clearly for an entirely different type of activity and there was no
suggestion, I find, and no reason for her to even consider that the plaintiff
might be permitted by the defendant to ride in the box of his truck.

[30]       
I will deal first with the plaintiff and third
parties’ allegation that the defendant was negligent.

[31]       
There is no question that the defendant was
responsible for allowing the plaintiff and the other children to ride in the
box of his truck. He did not have to allow the plaintiff to get into the box of
the truck, and he had enough seats and seat belts, I find, inside the
truck to accommodate all of his passengers, including the plaintiff.

[32]       
As the majority in the Supreme Court of Canada
case of Galaske v. O’Donnell, [1994] S.C.J. No. 28 said:

[16]      Is there then a sufficiently close relationship
between the driver of a motor vehicle and his passengers to establish a prima
facie duty of care? I think that there undoubtedly is such a relationship. A
driver owes a duty of care to his passengers to take reasonable steps to
prevent foreseeable injuries…

 …..

[25]      There is therefore a duty of care owed by an
occupant of a car to wear a seat belt. This duty is based upon the sensible
recognition of the safety provided by seat belts and the foreseeability of harm
resulting from the failure to wear them. What then of children in a car?
Children under 16, although they may contest it, do require guidance and
direction from parents and older persons. This has always been recognized by
society. That guidance and protection must extend to ensuring that those under
16 properly wear their seat belts. To the question of who should assume that
duty, the answer must be that there may be two or more people who bear that
responsibility. However one of those responsible must always be the driver of
the car.

[26]      A driver taking children as passengers must accept
some responsibility for the safety of those children. The driving of a motor
vehicle is neither a God-given nor a constitutional right. It is a licensed
activity that is subject to a number of conditions, including the demonstration
of a minimum standard of skill and knowledge pertaining to driving. Obligations
and responsibilities flow from the right to drive. Those responsibilities must
include some regard for the safety of young passengers. Children, as a result
of their immaturity, may be unable to properly consider and provide for their
own safety. The driver must take reasonable steps to see that young passengers
wear their seat belts. This is so since it is foreseeable that harm can result
from the failure to wear a seat belt, and since frequently, a child will, for
any number of reasons, fail to secure the seat belt.

[27]      The driver of a car is
in a position of control. The control may not be quite as great as that of the
master of a vessel or the pilot of an aircraft. Nevertheless it exists. Coexistent
with the right to drive and control a car is the responsibility of the driver
to take reasonable steps to provide for the safety of passengers. Those
reasonable steps must include not only the duty to drive carefully but also to
see that seat belts are worn by young passengers who may not be responsible for
ensuring their own safety.

[33]       
Indeed, the defendant admitted that he was
responsible for the safety of the children in the box of his truck and for the
supervision of them. He clearly could not adequately supervise four children
riding in the box of his truck while he was driving, watching the road, and chatting
with his passenger. He had the windows closed and the fan on. The children were
only somewhat visible to him when he looked in his rear-view mirror. He knew
they had been playing and being boisterous before accompanying him on the trip
to Chase. He knew from his experiences with children, including as a
counsellor, that children can be impulsive and unpredictable.

[34]       
I find that the defendant owed a duty of care to
the plaintiff and that he breached that duty and failed to exercise a standard
of care of a reasonable person in the same circumstances. That negligence was
clearly causally connected to what happened to the plaintiff. The plaintiff
would not have been injured had the defendant not allowed him to ride
unrestrained in the box of his truck. It was foreseeable, in my view, that what
occurred would or could occur.

[35]       
I turn now to the issue of contributory
negligence on the part of the plaintiff.

[36]       
This issue is complicated by the fact that none
of the witnesses who may have seen what happened testified at trial. The
defendant says that I should admit into evidence statements he says were made
by one or more of the other children in the truck. He says that when he stopped
to see what happened after he heard the pounding, one or more of the children
said that the plaintiff had jumped. I have concluded that even if the alleged
statement could be admitted into evidence on the hearsay exception with regard
to spontaneous utterances, I would not and could not put any weight on the
defendant’s evidence about what the children said nor the hearsay statements. I
am not even satisfied that, in fact, the defendant heard what he says he heard.

[37]       
The defendant, I find, misled the police in
Chase when he was interviewed at the clinic. He led the police to believe that
he was a Good Samaritan who had come upon the plaintiff lying in the middle of
the road. He did not tell them that he had been driving the truck from which
the plaintiff had jumped, fallen or been pushed. He did not tell the police
that the other children said the plaintiff had jumped. That story did not come
out until over a month later when he was interviewed by his insurance adjuster.
He cannot recall how many children made the statement. He cannot recall how
many children made the statement. He cannot recall what words were actually
said. He deprived the police of an opportunity to investigate and locate
witnesses. Despite returning to the Sun Dance ceremony and staying for several
days, he made no effort to identify which children had been in the box of the
truck with the plaintiff.

[38]       
I am unable to conclude that the plaintiff
deliberately jumped from the moving truck. However, based on the dimensions of
the truck box, I find that the plaintiff must at least have moved from a seated
position on the floor of the box of the truck while the truck was moving. He
could not otherwise have come out of the box of the truck. The question is
whether that constituted contributory negligence on the plaintiff’s part.

[39]       
As Mr. Justice Maczko said in Iannone v.
Hoogenraad, [1990] B.C.J. No. 2311 (S.C.):

In order to establish
contributory negligence the defendant must prove two elements: first, that the
plaintiff’s conduct showed a want of reasonable care for his own safety which
caused or rendered the injuries more serious and, secondly, that had he
conducted himself in a reasonable manner his injuries would have been avoided
or lessened…

[40]       
Where the plaintiff is a child, the question
must always be whether the child exercised the care to be expected from a child
of like age, intelligence and experience: McEllistrum Estate v. Etches,
[1956] S.C.R. 787; and Ottonsen v. Kasper, [1986] B.C.J. No. 139 (C.A.)

[41]       
I heard considerable evidence about the
plaintiff’s intelligence, behavioural issues and experience. I accept that the
plaintiff’s educational achievements were below his age and grade level. He was
more comfortable with children two and three years younger. He was easily
manipulated by other children, particularly older children, and could do things
impulsively, not realizing the consequences until after the fact.

[42]       
Having said that, the evidence makes it clear
that he was able to understand simple instructions. His mother had ensured that
he understood that he must always wear a seat belt when riding in a car or a
van. He had little or no experience riding in pickup trucks at the time of the
accident.

[43]       
Even though the plaintiff may have functioned at
a level approximately a couple of years below his chronological age of 12, I am
satisfied that he was “capable of being negligent”.

[44]       
In the circumstances of this case, I would not
find that the plaintiff was contributorily negligent simply by riding in the
back, or the box, of the truck. He was allowed to be there by an elder from the
Sun Dance ceremony which featured community, trust and respect for elders. However,
I do find that the plaintiff was, by getting up from a seated position on the
floor of the box in a moving truck, negligent in fact.

[45]       
Consequently, the defendant has proved
contributory negligence.

[46]       
Finally, I turn to the third party claim.

[47]       
The defendant says that the plaintiff’s parents
failed to meet the “accepted standard of care expected by parents generally in
the community” (Arnold v. Teno (Next friend of), [1978] 2 S.C.R. 287 at
311-2) in that they did not properly supervise the plaintiff, knowing, as they
did, of his challenges and proclivities. The defendant points specifically to
the plaintiff’s mother’s evidence about her exchange with him, which he does
not recall, with regard to the plaintiff going with other children to gather
cedar. He says that she should have watched the truck depart to ensure that the
plaintiff was secured in the cab and not allowed in the box of the truck and,
further, that she should have told the defendant about the plaintiff’s issues.

[48]       
With regard to the level of supervision, this
was, as I have said, a community-minded event. Everyone was looking out for all
of the children on the ceremonial grounds. The plaintiff checked in
periodically with his parents, and they saw him in and around the grounds. While
they might have been a little more diligent in keeping an eye on him, I cannot
find that their level of supervision in this rural area and at this community
event, in all of the circumstances, was negligent.

[49]       
With regard to the conversation the defendant
had with the plaintiff’s mother, this clearly related to a different outing
than the trip to Chase. The defendant admitted that before he left the
ceremonial grounds to go to Chase, he did not seek out any of the children’s
parents nor send the children to their parents to get permission. The trip to
Chase was measurably different than a drive around the ceremonial grounds to
pick up cedar. There was, in my view, as I have said, no reason for the
plaintiff’s mother to suspect or take steps to guard against the plaintiff
riding in the box of the truck to pick up cedar and, indeed, there is no
evidence at all in this case that the plaintiff did, in fact, ever ride in the
box of the defendant’s truck except on the trip to Chase.

[50]       
Given the proposed event of gathering cedar
around the ceremonial site and the plaintiff’s traditionally respectful and
trouble-free behaviour at Sun Dance ceremonies, I find that the plaintiff’s
mother did not breach any standard of care she owed the plaintiff to act as a
reasonably prudent parent by not telling the defendant about the plaintiff’s
educational and behavioural challenges.

[51]       
Consequently, I find no negligence on the part
of the third parties.

[52]       
The only remaining matter, then, is the
appropriate split or sharing of liability between the plaintiff and the
defendant.

[53]       
In all of the circumstances of this case, I
apportion fault between them as follows: the plaintiff, 25 percent; the
defendant, 75 percent.

Beames
J.