IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111026

Docket: M084885

Registry:
Vancouver

Between:

Sarup Singh Deol

Plaintiff

And

Brian Hugh Veach

Defendant

Before:
The Honourable Madam Justice Dardi

Reasons for Judgment

INTRODUCTION

[1]            
In this action the plaintiff, Mr. Sarup Deol, seeks damages arising
from injuries he sustained when the bicycle he was riding collided with a
vehicle driven by the defendant, Mr. Brian Veach.

[2]            
The sole issue before the Court at trial was the determination of
liability for the collision.

[3]            
The collision occurred at approximately 11:00 a.m. on January 3, 2007,
at an exitway from a Safeway parking lot in the 7400 block of Scott Road (120^th
Street) in Surrey, between 72^nd and 75^th Avenue (the
“Exitway”). The Exitway is two lanes wide. An unmarked crosswalk connects the
two sidewalks on either side of the Exitway. There is no stop sign or traffic
light at the Exitway. In this area Scott Road has three northbound lanes and
two southbound lanes, plus a designated left-turn lane to turn into Safeway.
On the north side of the Exitway, between the sidewalk and the Safeway parking
lot, there is a five foot nine inch wide strip of low-lying shrubs and several
small trees. The sidewalk is five feet wide (the “Sidewalk”). There is a six
foot wide strip of grass with some small trees between the Sidewalk and the east
curb of Scott Road.

SUMMARY OF THE EVIDENCE

[4]            
I summarize below the evidence of each of the plaintiff, the defendant,
and the two independent witnesses.

(i) The Plaintiff

[5]            
The plaintiff, who testified through an interpreter at trial, stated
that he was a very experienced cyclist and it was his daily routine to ride his
bicycle in a southerly direction to a temple on 72^nd Avenue in Surrey. When he was travelling southbound on Scott Road he regularly rode his bicycle on
the east sidewalk, against the flow of traffic; this route was more convenient
for him than riding his bicycle on the west side of Scott Road. When he was
travelling this route Scott Road was to the right of the Sidewalk.

[6]            
On the day of the accident he was not in a rush as he had not planned to
arrive at the temple at any specified time. When he reached the Exitway he
stopped at the edge of the Sidewalk, although he stayed mounted on his bicycle.
He observed the defendant’s vehicle approach the Exitway and then come to a
stop. The plaintiff claims that he saw the defendant’s vehicle stop at a white
line before the Exitway. Presuming it was safe to cross, the plaintiff
proceeded into the Exitway on his bicycle. By his own admission the plaintiff
never made eye contact with the defendant, nor did the defendant ever give him
any indication that he had seen him. According to the plaintiff, he and the
defendant attempted to cross the Exitway at the same time and the vehicle “came
on top on” him.

(ii) The Defendant

[7]            
The defendant, who was driving a Chevrolet Malibu, testified that upon
leaving the Safeway parking lot he had intended to cross through the Exitway to
turn right and proceed northbound on Scott Road. He was running an errand that
was not subject to any specific time constraints. There were no vehicles in
front of or behind him. He was not aware of any white lines or markings on the
pavement in the Exitway. As he approached the Exitway there was nothing
obstructing his view to the right. When he looked to his right as he was
approaching the Exitway he did not notice any pedestrians or cyclists on the
north Sidewalk. The defendant approached the Exitway at a slow pace; he
estimated his speed as 10-15 kilometres per hour. He looked to his right,
checking the north Sidewalk on Scott Road. The defendant then brought his
vehicle to a complete stop, east of the Sidewalk and the unmarked crosswalk, for
about two or three seconds.

[8]            
The defendant looked to the left for vehicles travelling in a northbound
direction on Scott Road. He then began to “creep forward” in the Exitway to
initiate his right turn. He estimates that at this time he was travelling at a
speed of approximately five kilometres per hour. He had barely started
accelerating when, to his surprise, he suddenly heard a “thump”. He had not
seen the plaintiff prior to the collision. The defendant initially exited his
vehicle; however, upon realizing that the plaintiff was trapped underneath the
front bumper, he immediately reversed his vehicle approximately a foot from its
stopped position. He also retrieved a blanket from the vehicle and placed it
over the plaintiff.

[9]            
In cross-examination the defendant conceded that after stopping at the
Exitway he maintained his focus on the traffic approaching from the left and
never looked right again before he moved through the Exitway to initiate his
right turn. Although he had an unobstructed view of the Sidewalk to his
right—to the end of the Safeway parking lot which was approximately 200 feet—he
never observed the plaintiff at any time prior to impact. He also acknowledged
that Scott Road is very busy and many cyclists ride on the sidewalk in the
area.

[10]        
At the scene the defendant spoke to the two witnesses, Mr. Narinder
Hara and Mr. Kanwaldip Jawanda. He expressed some shock and dismay to Mr.
Hara that he had failed to see the plaintiff.

[11]        
The police attended the scene and issued a ticket to the defendant under
s. 179 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA],
for failure to yield to a pedestrian. The defendant testified that he later
paid the fee.

(iii) Independent Witnesses

[12]        
At trial the plaintiff called two independent witnesses to the
collision.

[13]        
Mr. Narinder Hara was travelling north on Scott Road in the inside
lane. He observed the defendant’s vehicle stopped at the Exitway, and the
defendant driver checking the northbound traffic. He also observed the
plaintiff on his bicycle stopped at the Exitway. He related to the court his
recollection of the collision: as the defendant slowly pulled out of the
Exitway the plaintiff also proceeded on his bicycle. According to
Mr. Hara, the plaintiff veered to the right in an effort to avoid the
defendant’s vehicle. After witnessing the collision, Mr. Hara noticed that the
plaintiff’s leg was caught under his bicycle and the bicycle was pinned underneath
the defendant’s vehicle. Mr. Hara immediately pulled his vehicle over and
asked the defendant to reverse his vehicle off the plaintiff’s leg.

[14]        
From the time Mr. Hara observed the defendant driver in his initial
stopped position until the time of impact Mr. Hara never noticed the defendant
look to his right. Mr. Hara did not notice any white lines on the pavement
in the Exitway.

[15]        
Mr. Jawanda, who is a Class 1 professional driving instructor, also
witnessed the collision. He was riding in the passenger side of a semi-truck
and trailer, because he was with a student driver. They were travelling north
on Scott Road in the middle lane at approximately 15-20 kilometres per hour. He
testified that he had excellent visibility of the incident because the cab of
the truck in which he was riding was four to five feet above the ground. He
observed the defendant exiting the Safeway lot and stop before what he
described as the white line at the Exitway. The driver looked left in a
southerly direction before slowly proceeding with his right turn.
Mr. Jawanda also saw the plaintiff on his bicycle stopped on the Sidewalk.
Both plaintiff and defendant started moving slowly into the Exitway at the same
time and the collision occurred. After pulling over to attend the scene of the
accident Mr. Jawanda spoke to the plaintiff, the defendant, and the
attending police officer.

FINDINGS OF FACT

[16]        
I found the defendant to be a straightforward and credible
witness. He clearly endeavoured to give accurate evidence of the material
sequence of events; he was forthright about what he did and did not do in
relation to this collision. I also found that each of the independent witnesses
did their best to accurately relate their recollections of the accident. I
found them both to be credible witnesses.

[17]        
Although the plaintiff presented as having difficulties with his memory
and verbal expression, he attempted to relate his recollection of events to the
best of his ability. The collision was clearly a very traumatic event for him. Moreover,
it appeared that the plaintiff found the experience of testifying at trial
somewhat overwhelming. However, contrary to the defendant’s characterization of
the plaintiff’s evidence, I do not find that he was evasive or that he
deliberately exaggerated his evidence.

[18]        
In any case the majority of the relevant facts are not in contention,
and are established on the evidence of the defendant and the two disinterested
witnesses. I find that the totality of the evidence establishes the following
facts:

·      
Scott Road is a major arterial road with heavy traffic;

·      
The defendant was aware that the Sidewalk on Scott Road on which
the accident occurred was routinely used by pedestrians and cyclists;

·      
The accident occurred on a clear day with excellent visibility,
and the road in issue was substantially dry at the time of the accident. The
police photographs do show that the road had a few remaining small spots of
water on the surface;

·      
The plaintiff was travelling south on his bicycle on the Sidewalk
on the east side of Scott Road;

·      
The defendant intended to execute a right turn into the curb lane
to travel northbound on Scott Road. As he was approaching the Exitway he looked
to the right. Although he had an unobstructed view to the north for some 200
feet he did not observe the plaintiff on the Sidewalk;

·      
After stopping at the Exitway the defendant did not look to his
right before he commenced his turn onto Scott Road to travel northbound. He
maintained his focus to the left on the northbound traffic. He therefore never
saw the plaintiff prior to the impact;

·      
The plaintiff stopped on his bicycle at the edge of the north
curb of the Exitway; he then observed the defendant’s vehicle a short distance
away approaching the Exitway. He saw the defendant stop his vehicle just east
of the Sidewalk and the unmarked crosswalk;

·      
Although the plaintiff knew that the defendant would be exiting
onto Scott Road the plaintiff assumed that since the defendant had stopped it
was safe to proceed riding his bicycle through the Exitway;

·      
On balance the evidence supports a finding that the plaintiff and
the defendant both slowly proceeded into the Exitway at approximately the same
time;

·      
The damage to the defendant’s vehicle is to the front quarter
passenger’s side panel and there are some scratches to the front bumper,

·      
It is common ground from the photographs of the scene tendered at
trial that in 2011 the Exitway has no painted stop lines. The evidence is
conflicting as to whether at the time of the accident there were painted white
lines on the pavement of the Exitway. However, the police photographs taken at
the time show that there were no white lines on the pavement in the Exitway. In
my view nothing turns on this because the uncontroverted fact is that the
defendant, as he was required to do, stopped at the Exitway prior to executing
his right hand turn onto Scott Road.

POSITION OF THE PARTIES

[19]        
The plaintiff asserts that the defendant is fully responsible for the
subject accident, and in the alternative, if the Court determines that the
defendant’s negligence was not the sole cause of the accident, that liability
should be apportioned to the plaintiff in an amount no greater than 20%.

[20]        
The defendant acknowledges some degree of responsibility for the
accident, but contends that the plaintiff was contributorily negligent. The
defendant argues the plaintiff should be held 75% at fault for the accident,
and the defendant 25% at fault.

LEGAL FRAMEWORK AND ANALYSIS

[21]        
There is no dispute as to the legal principles which inform the analysis
of liability in this case.

[22]        
It is common ground that both the plaintiff and defendant had duties to
take reasonable care. The authorities also clearly establish that an individual
who is violating a traffic law assumes a heightened duty of care: Hadden v.
Lynch, 2008 BCSC 295 at para. 59.

[23]        
It is also well-settled that a breach of the provisions of the MVA in
itself does not establish negligence: Dickie Estate v. Dickie (1991),
5 B. C. A. C. 37 (C.A.). In order to find negligence the court must find
that an individual did not exhibit the standard of care which was required in
the circumstances and that the negligence contributed to the accident.

[24]        
In Hadden, a case involving a collision between a truck and a
cyclist, the court summarized the duty on a driver as follows:

[69]      It is important to remember in cases like the one
at bar that the standard of care of a driver is not one of perfection, but
whether the driver acted in a manner in which an ordinarily prudent person
would act, see Orr v. Faucher, 2005 BCSC 1343; Addison v. Nelles,
2003 BCSC 1860, aff’d 2004 BCCA 623; Russell v. Wang, 2000 BCSC 534.

[70]      It seems clear that for
the court to impose liability on the defendant, the plaintiff must prove either
that the defendant did in fact see him or that the defendant ought to have seen
him.  If the defendant did not, or should not have, seen the plaintiff,
then the defendant could not have been expected to do anything except proceed
through the intersection as he did.

[25]        
 A critical and uncontroverted fact in this case is that the defendant
did not see the plaintiff when he looked to the right as he was approaching the
Exitway. On his own admission his unobstructed view of the Sidewalk to the
north was for some 200 feet. Moreover, after the defendant stopped just east of
the unmarked crosswalk at the Exitway, and prior to executing his right turn,
he did not look to the right again. The defendant was in clear violation of s.
144 of the MVA, which prohibits driving without due care and attention
and without reasonable consideration for others. Although the plaintiff was
riding in the direction facing traffic, the Exitway, which was bordered by a
sidewalk on both sides, was precisely where a motorist should reasonably have
expected to encounter another user of the road. Unlike the plaintiff in Ivanoff
v. Bensmiller, 2002 BCCA 173, the plaintiff was not in an unexpected
location. The defendant was well aware that both pedestrians and cyclists used
the sidewalks on Scott Road.

[26]        
I find on the totality of the evidence that had the defendant acted in a
reasonably prudent manner he would have seen the plaintiff. The plaintiff was
there to be seen by the defendant. Had the defendant maintained a proper
look-out there is an irresistible inference that the collision would have been
avoided. I therefore conclude that the defendant failed to meet the standard of
care of an ordinarily prudent driver required in the circumstances, and that
his failure to do so was a cause of the accident. In the result I find the
defendant negligent.

[27]        
I turn next to consider whether the plaintiff failed to take reasonable
care for his own safety, and whether his failure to do so was one of the causes
of the accident.

[28]        
The defendant grounds his submissions in s. 183 of the MVA,
which provides as follows:

Rights and duties of operator of cycle

183 (1) In
addition to the duties imposed by this section, a person operating a cycle on a
highway has the same rights and duties as a driver of a vehicle.

(2) A person
operating a cycle

(a) must not ride on a
sidewalk unless authorized by a bylaw made under section 124 or unless
otherwise directed by a sign,

(b) must not, for the purpose of
crossing a highway, ride on a crosswalk unless authorized to do so by a bylaw
made under section 124 or unless otherwise directed by a sign,

(c) must, subject to paragraph (a), ride as near as
practicable to the right side of the highway, …

[29]        
It is uncontroversial that the plaintiff was breaching the provisions of
the MVA prior to the collision. In contravention of s. 183 he was
riding his bicycle on the Sidewalk in a direction facing traffic. It is common
ground that there was no bylaw or sign authorizing him to do so. Moreover, he
entered the unmarked crosswalk on his bicycle, which also constitutes a
contravention of s. 183(2)(b) of the MVA.

[30]        
At this juncture I note that I did not find either counsel’s submissions
on the other alleged breaches of the MVA helpful.

[31]        
In Bradley v. Bath, 2010 BCCA 10, in considering the liability of
a cyclist riding on a sidewalk that collided with a driver of a vehicle exiting
a gas station, the Court of Appeal stated as follows at para. 28:

[28]      In my opinion, the
plaintiff was at fault, and his fault was one of the causes of the
accident.  Contrary to law, he was riding his bicycle on the sidewalk
against the flow of traffic.  He saw the defendant’s vehicle moving
towards the exit he was approaching.  Rather than making eye contact
with the defendant or stopping his bicycle and letting the defendant’s vehicle
exit the gas station, the plaintiff assumed the defendant saw him and would not
accelerate his vehicle.  In these circumstances, he was at fault for
continuing to ride his bicycle across the path to be taken by the defendant’s
vehicle in exiting the gas station. [Emphasis added.]

[32]        
On the totality of the evidence, and applying the principles articulated
in Bradley, I find that the plaintiff failed to take reasonable care for
his own safety. Given his heightened duty of care, the plaintiff, after
stopping and before attempting to cross the Exitway, should have made some form
of eye contact to ensure that the defendant had seen him. By the plaintiff’s
own admission the defendant had given no indication to the plaintiff that he
had seen him. In short, the plaintiff was at fault and his failure to take
reasonable care for his own safety was one of the causes of the accident.

[33]        
In summary I conclude that the conduct of each of the plaintiff and the
defendant was negligent and contributed to the accident. In the result
liability will be apportioned pursuant to the provisions of the Negligence
Act, R.S.B.C. 1996, c. 333.

[34]        
The court in Hynna v. Peck, 2009 BCSC 1057, distilled the
pertinent principles regarding apportionment at paras. 88-89:

In assessing apportionment, the Court examines the extent of
blameworthiness, that is, the degree to which each party is at fault, and not
the degree to which each party’s fault has caused the loss.  Stated
another way, the Court does not assess degrees of causation, it assesses
degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43
B.C.L.R. (3d) 219, 100 B.C.A.C. 212; Aberdeen v. Langley (Township),
2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta, 2008
BCCA 420.

In Alberta Wheat Pool v. Northwest Pile Driving Ltd.,
2000 BCCA 505, [2000] 80 B.C.L.R. (3d) 153, Finch, J.A. (now the Chief
Justice), for the majority of the Court of Appeal, explained this important
principle at paras. 45-47:

In my view, the test to be applied
here is that expressed by Lambert, J.A. in Cempel, supra, and the
Court’s task is to assess the respective blameworthiness of the parties, rather
than the extent to which the loss may be said to have been caused by the
conduct of each.

Fault or blameworthiness evaluates the parties’ conduct in
the circumstances, and the extent or degree to which it may be said to depart
from the standard of reasonable care.  Fault may vary from extremely
careless conduct, by which the party shows a reckless indifference or disregard
for the safety of person or property, whether his own or others, down to a
momentary or minor lapse of care in conduct which, nevertheless, carries with
it the risk of foreseeable harm.

[35]        
The Court of Appeal in Bradley found the plaintiff cyclist and
defendant motorist equally at fault. Although the circumstances in Bradley
are similar to the facts in this case, there is a distinction of some
significance—the plaintiff in this case stopped his bicycle and waited at the Exitway
before proceeding. He only proceeded after he saw the defendant’s vehicle come
to a stop.

[36]        
I consider the defendant’s failure to keep a proper lookout, his failure
to observe the plaintiff who was there to be seen, and his execution of a right
turn while focussing to his left, more blameworthy than the lapse of care of
the plaintiff, who, after stopping at the Exitway and observing the defendant’s
vehicle come to a stop, failed to make eye contact with the defendant prior to
proceeding through the Exitway.

[37]        
In the end I find that the defendant was substantially but not entirely
to blame for the accident and therefore I attribute fault to both parties. I
apportion liability 75% to the defendant and 25% to the plaintiff.

COSTS

[38]        
If the parties are unable to agree on costs within 60 days of the
release of these reasons for judgment, they should reserve a date through
Supreme Court Scheduling to address the issue of costs.

“Dardi J.”