1IN THE
SUPREME COURT OF BRITISH COLUMBIA
Citation: | Anderson v. Kozniuk, |
| 2011 BCSC 1678 |
Date: 20111208
Docket: M092616
Registry:
Vancouver
Between:
Wayne Wilfred
Anderson
Plaintiff
And
Jacklyn Kozniuk
Defendant
Before:
The Honourable Madam Justice Russell
Reasons for Judgment
Counsel for the Plaintiff: | D.C. Creighton H. Faramarzi, Articled |
Counsel for the Defendant: | H. Grewal |
Place and Date of Trial: | Vancouver, B.C. October 24-25 & |
Place and Date of Judgment: | Vancouver, B.C. December 8, 2011 |
Introduction
[1]
Mr. Andersons claim arises out of a pedestrian-motor vehicle
accident which occurred on January 9, 2008. The trial before me dealt with a
determination of liability only. If necessary, the damages phase will continue
in February.
[2]
Rather than setting out all the individual accounts given before me, I
have set out my factual findings below after considering the entire body of
evidence. I have chosen not to more than mention the evidence of Dr. Douglas
and Nurse Braacx, as I did not find their evidence particularly probative or
helpful.
Facts
[3]
On Wednesday, January 9, 2008, the plaintiff, Wayne Anderson, was on his
way to work. He left his apartment at 420-11th Avenue, New
Westminster at about 7:00 a.m. to catch his bus on 12th Street to
travel to work at Oakridge Centre in Vancouver. He was employed at The Book
Company, a division of Indigo/Chapters.
[4]
Mr. Anderson worked Tuesday to Saturday and started work at 9:00
a.m. every day except Wednesday when he began at 8:00 a.m. Hence his early
start to catch his bus on the day of the accident.
[5]
His evidence was that it usually takes about 50 minutes to get to his
place of work. Mr. Anderson does not drive and has never had more than a
Learners License, which he had when he was 16 years old. He is currently 46
years old.
[6]
Mr. Anderson walked down the lane behind his apartment building to
Llewellyn Street, turned left onto 5th Avenue and crossed 5th
from north to south. He waited on the southeast corner of 12th
Street to cross it from east to west.
[7]
Twelfth Street runs approximately north-south. Fifth Avenue runs
approximately east-west.
[8]
By the time Mr. Anderson arrived at the corner, it was
approximately 7:05 a.m. It was still dark at that time in the morning. The
streets were wet, but it was not raining at the time. The cars he noticed had
their headlights on.
[9]
Mr. Anderson was wearing a brown leather jacket, beige pants, brown
shoes and had no hat on. He was carrying a dark nylon briefcase with a strap over
his right shoulder and an umbrella in his left hand.
[10]
At the intersection of 5th Avenue and 12th Street,
there is a marked crosswalk and an unmarked crosswalk. The marked crosswalk is
illuminated by a lit sign above the crossing and a street lamp. To the south of
that marked crosswalk, there is an unmarked crosswalk. The unmarked crosswalk
is not as well-illuminated as the marked crosswalk, but it is lit by a street
lamp on the southeast corner. Some illumination may also be provided by the lit
restaurant sign on the southeast corner of the intersection, in front of which
is the street lamp.
[11]
Twelfth Street is a reasonably busy route in the morning, busier going
north, but still busy going south. Mr. Anderson believes that one
north-bound car stopped for him on 12th Street. He looked to his
right and proceeded to cross.
[12]
Mr. Anderson saw his bus a block away at 12th Street and
6th Avenue. It was loading passengers. It is important that he catch
this bus to be on time. He is a punctual person, according to his supervisor, Mr. Higgins.
He usually arrives at work on time or a bit early, unless he runs into a
transit problem. Certainly, he has never been cautioned about being late for
work. However, seeing the passengers loading gave him some assurance he did not
have to run across the street to reach his bus stop, which was located to his
left and down 12th Street.
[13]
By Mr. Andersons description, the bus stop is about 100 to 120
feet from the southeast corner of 12th Street, on the south side of
12th Street.
[14]
Mr. Anderson states that as he moved across the street, when he
looked up to his right and saw the bus, he also noticed a car some way up the
hill, which would also be to his right.
[15]
Mr. Anderson described the way he crossed the street: he crossed in
front of the stopped northbound car and then cut the corner and made an arc
to his left to walk to the bus stop. If he had made it to the curb, the greater
part of his walk to the curb would have occurred outside what could be
considered the unmarked crosswalk.
[16]
He states he was walking at a normal pace.
[17]
The independent witness, Mr. Lemay, whose evidence I discuss in
more detail below, said he was walking briskly with his head down.
[18]
It appears that after Mr. Anderson cut the corner, his back would
have been to the uphill slope and to the defendants car proceeding downhill
towards the intersection.
[19]
From the position of his body as he angled toward the bus stop, I find
it is unlikely he looked back behind himself to check again whether the street
remained clear of approaching cars and, in particular, where the one car was
that he had noticed coming down the hill.
[20]
Jacklyn Kozniuk was driving south on 12th Street after
leaving her home at about 7:00 a.m. She had her headlights on and was driving
about the speed limit of 50 km/h in her 2002 Chevrolet Cavalier.
[21]
She stopped at the light at 12th Street and 6th
Avenue. She does not remember if there was a bus in the southbound curb lane
beside her.
[22]
She proceeded down 12th Street. She came to the intersection
at 5th Avenue, went through the intersection and hit Mr. Anderson.
[23]
Mr. Anderson hit the hood of her car on the passenger side and
rolled onto the ground on the right front of the passenger side. His injuries
were to the left side of his body: his pelvis and shoulder.
[24]
A passerby called an ambulance and Mr. Anderson was taken to Royal
Columbian Hospital.
[25]
In the course of examining him, a nurse, Ms. Braacx, noted that his
breath smelled of alcohol.
[26]
Mr. Anderson does not dispute that at the time of the accident, he was
a regular imbiber. There is a dispute about the amount of alcohol he told the
orthopaedic consultant, Dr. Douglas, he consumed on a daily basis. This
could go to his credibility. However, in terms of actual consumption, I find it
does not make much difference whether he regularly drank 6-8 bottles of beer
every evening or 10-12 bottles of beer. I find it probable he would drink about
8 bottles of beer every evening and he likely did so on the evening of January
8, 2008.
[27]
He says he retired about 10:00 p.m. the night before the accident and
got up at 6:00 a.m. I find it likely he would still have smelled of alcohol the
next morning, although his supervisor at work had never noticed an odour of
alcohol on his breath. The supervisor, Mr. Higgins, testified that his
employer would take disciplinary steps were an employee to show up hung over or
smelling of alcohol. Mr. Higgins never took any such step with the
plaintiff.
[28]
Notwithstanding the inference the defendant asked me to draw that the
plaintiff was still impaired the next morning as a result of his substantial
consumption of beer the evening before, the only evidence concerning his
consumption is the odour on his breath. I have no expert evidence to inform me
of whether the effect of consumption of 8 bottles of beer ending at about 9:30
the previous evening would cause impairment to continue to 7:15 the next
morning.
[29]
Furthermore, there is no evidence of actual impairment. At the hospital,
Mr. Anderson was fully oriented as to time and place. There is no note he
was slurring his speech or exhibiting other signs of impairment.
[30]
I do not find Mr. Anderson to have been impaired the morning of
January 9, 2008.
[31]
Mr. Anderson was discharged from the hospital the same day as the
accident.
[32]
Ms. Kozniuk described her journey down 12th Street as
uneventful until the plaintiff suddenly appeared in front of the right front of
her car and she hit him. Until the moment of impact, she did not see him.
[33]
Ms. Kozniuk states that her car was in good repair. She was awake
and alert and had not consumed any alcohol or drugs the night before or the
morning of the accident. She does not have any restriction on her drivers
license which requires that she use corrective lenses. She has been driving
since she was 16.
[34]
She lives nearby with her parents and knows the area well having grown
up in New Westminster. The intersection of 12th Street and 5th
Avenue is 5 minutes from her home. She is 29 years old.
[35]
Ms. Kozniuk was on her way to pick up a paycheque at work. She was
not working that day and was not in a hurry. Her evidence was that she was
travelling at the speed limit. Mr. Anderson agreed that when he first
noticed a car descending the 12th street hill, it did not appear to
be speeding.
[36]
Ms. Kozniuk was aware there was a bus stop in the area and she was
also aware of the lighted crosswalk at the intersection of 5th
Avenue and 12th Street.
[37]
As she drove down the hill on 12th, there were some cars
behind her but none in front. She often uses this route and acknowledged that
it was reasonably busy in the morning.
[38]
Her headlights were on, as were those of the cars behind her, because it
was dark at that time in the morning.
[39]
Ms. Kozniuk noticed a few cars coming north up the hill on 12th
Street. She did not see a car stopped at the intersection of 12th
and 5th heading north.
[40]
As the defendant came down the hill, she did not see anyone in the
lighted crosswalk. She continued on her route and saw no one in the unmarked
crosswalk.
[41]
On the west side of the street there is a grocery store on the south
west corner. To the west of that store there are some blue bins and an office
with a sign out front which says Liberty Tax Centre. The blue bins sit
between the grocery store and the front of the office.
[42]
She stated that the plaintiff Came out of nowhere. By her description,
the plaintiff was walking quickly towards the bus stop and was well outside the
unmarked crosswalk. She hit him when she was south of the unmarked crosswalk in
the area between the shops and in front of the blue bins. (See Exhibit 1, tab 9,
10).
[43]
When she first saw the plaintiff he was about one foot in front of her
car. She says she had no opportunity to stop or to sound her horn, although she
applied her brakes.
[44]
The plaintiff made contact with the right front of her car, rolled up
onto the hood and then off onto the ground on the passenger side of her car. After
the impact, Ms. Kozniuk saw the plaintiff hit the ground, jump to his feet
and then, on instruction from people on the sidewalk, he lay down on the
sidewalk, presumably awaiting the arrival of an ambulance.
[45]
By then, she had left her car, and gone towards the plaintiff. He was
conscious and lying on the sidewalk. Once the police arrived, she described
what had happened. She was not charged as a result of the accident.
[46]
Ms. Kozniuk made an estimate of the distance from the crosswalk to
where she hit the plaintiff, but did not take steps to actually measure the
distance from the unmarked crosswalk to where impact occurred. There is a large
disparity between her estimated distance and the actual distance between the
unmarked crosswalk and the impact. She explained the disparity by saying she
had no ability to accurately determine the distance and just did her best to
guess.
[47]
At 5:30 pm on the day of the accident, she emailed the RCMP with a crude
diagram of the scene containing what she now says was an erroneous estimate of
the distance from the unmarked crosswalk to where she hit the plaintiff.
[48]
Ms. Kozniuk agreed she kept a lookout for pedestrians in the area
and if she had seen anyone walking in the crosswalk, she would have stopped. She
said the unmarked crosswalk to the south was darker than the marked and
illuminated crosswalk to the north on 12th Street. The location of
the bus stop and that area of the street are not illuminated by a lamppost.
[49]
Immediately after the accident, after she had left her car, the driver
of a car proceeding northbound on 12th Street approached her. This
was Mr. Robin Lemay, who gave evidence for the defence.
[50]
Mr. Lemay was driving his service van north on 12th
Street on January 9, 2008, on his way to a jobsite just after 7:00 a.m. He
described the morning as having low light and being cloudy. He knows the
route and said it could be busy in the morning. However, on that morning the
traffic was moderate.
[51]
Mr. Lemay had his headlights on, was alert, not using his cell
phone and not drinking coffee. His recollection was that there was no vehicle
in front of him.
[52]
As Mr. Lemay came up 12th Street, he saw a pedestrian
crossing the street south of the intersection of 12th and 5th.
He was south of the intersection crossing on an angle walking in the general
direction of the bus stop. Mr. Lemay knows the intersection from having
travelled 12th Street frequently and stated the pedestrian was not
in the intersection when he was hit.
[53]
Mr. Lemay estimated the pedestrian (the plaintiff) was walking
quickly approximately 70 to 80 feet below the marked intersection with his head
down. He said the pedestrian was Making a beeline for the bus stop. Mr. Lemay
did not see the pedestrian look behind himself to check for cars. He estimated
that this would have been about 50 to 75 feet from the closest corner (the
southwest corner).
[54]
Mr. Lemay apprehended the impact as he saw the pedestrian walking
on the diagonal as the defendants car approached. He realized that if the
plaintiff maintained the diagonal on which he was walking, he would be hit by
the southbound car approaching.
[55]
Mr. Lemay said the impact with the plaintiff occurred opposite the
edge of the grocery store and in the vicinity of the blue bins. He stated that
the place of impact was different from where the plaintiff was lying on the
sidewalk post-impact. After the accident, the plaintiff was lying on the
sidewalk further south, close to the transition from commercial buildings to
residential, within about 20 feet of the first house.
[56]
He did not talk to the plaintiff following the accident, but told the
defendant that he saw the accident and it was not her fault because the
pedestrian had walked in front of her. He provided Ms. Kozniuk with his
phone number.
[57]
Mr. Lemay had not met Ms. Kozniuk before the accident.
[58]
Carl Richmond took the photographs of the scene which are part of
Exhibit 7. He agreed that the photographs taken at night tend to distort the
difference between the illumination of the grocery store and the darkness
around, making the light brighter and the darkness darker. However, he also
stated that the accuracy of the photographs compared to human visibility is
good.
Issues
i Is the defendants negligence the cause of the
accident?
ii If so, was the accident partly attributable to
the plaintiffs negligence?
iii If the
accident were partly attributable to the plaintiffs negligence, how should
fault be apportioned between the plaintiff and the defendant as required by
s. 1(1) of the Negligence Act, R.S.B.C. 1996, c. 333?
Analysis
[59]
As noted by counsel for Ms. Kozniuk, the relevant statutory
provisions are as follows: ss. 119, 179-181 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 (the Act)
[60]
The applicable provisions of these sections are:
Definitions
119 (1) In this Part:
…
crosswalk means
…
(b) the portion of a highway
at an intersection that is included within the connection of the lateral lines
of the sidewalks on the opposite sides of the highway, or within the extension
of the lateral lines of the sidewalk on one side of the highway, measured from
the curbs, or in the absence of curbs, from the edges of the roadway;
…
Rights of way between vehicle and pedestrian
179 …
(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.
…
Crossing at other
than crosswalk
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.
Duty of driver
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.
[61]
The parties are agreed that the duties stated in these sections of the Act
are supplementary to the common law duties of care imposed on users of the
road, both drivers and pedestrians. The duty of care owed was stated succinctly
in Little Plume v. Weir, 1998 ABQB 523 at para. 61:
[61] These statutory
provisions relating to duty of care are supplementary to the common law duty of
care … Both Mr Little Plume and Mr. Weir have the duty to exercise due
care with respect to each other and others using the highway, including that
degree of care which ordinarily prudent drivers and pedestrians would use in
similar circumstances. [Citations omitted.]
[62]
This duty, accompanied by other useful observations about the respective
duties of drivers and pedestrians, was recently restated by Dickson J. in Hmaied
v. Wilkinson, 2010 BCSC 1074 at paras. 22 – 24:
[22] When an accident occurs on a highway, the starting
point for analysis is a determination of who had the right of way. Generally
speaking, the party with the right of way is entitled to assume that other
highway users will obey the rules of the road …. In particular, drivers are
ordinarily entitled to expect that adult pedestrians will not jump out directly
in front of them as they are proceeding lawfully along their way ….
[23] Regardless of who has the right of way, however,
there is a duty upon drivers and pedestrians alike to keep a proper lookout and
take reasonable precautions in response to apparent potential hazards ….
Depending upon the circumstances, from a drivers perspective one such hazard
may be a jaywalking pedestrian …. If it is reasonably foreseeable or apparent
that a pedestrian will disregard the law and thus create a hazardous situation,
a driver is obliged to take all reasonable steps to avoid a collision. In such
circumstances, if the driver has a sufficient opportunity to avoid the
collision, but does not take appropriate evasive action, the driver will be
found negligent ….
[24] The standard required
of drivers in responding to pedestrian-created hazards such as jaywalking is
not one of perfection …. The applicable standard of care is one of reasonable
prudence in all the circumstances. [Citations omitted.]
[63]
In Hmaied, Dickson J. was considering the respective liability of
a driver who failed to keep a proper lookout and was speeding and a jaywalking
pedestrian who leaned over mid-crossing to pick up his dropped cell phone,
ignoring the approaching traffic.
[64]
Dickson J. found that both parties had failed to meet the requisite
standard of care and the result was the accident which ensued. She also found
that the defendant had established not only that the plaintiff pedestrian had
failed to take proper care for himself, but had also demonstrated that his want
of care was a proximate or effective cause of his own loss.
[65]
In the result, she found each party 50% liable on the basis that despite
the plaintiff having had prior entry to the intersection, he was jaywalking in
the face of oncoming traffic. Furthermore, halfway across the street he turned
back to retrieve his cell phone without even looking to see how close the
oncoming vehicle was. He exposed himself to the risk of being struck and was
struck. Thus, his negligent actions were a proximate cause of the accident: at paras. 34,
36.
[66]
With respect to the defendant, Dickson J. found that he had the right of
way, but failed to take reasonable precautions in response to the obvious
hazard presented by a jaywalking teenager. The defendant ought to have foreseen
that the young jaywalker would not behave predictably and he ought to have
taken the simple step of slowing down and changing lanes as soon as he saw the
plaintiff. The defendant in this case was also negligent: at paras. 34 –
35.
[67]
Following the jurisprudence in this province, it appears that there is a
common law, as well as a statutory duty on a driver to maintain a proper
look-out so that he/she can anticipate risk, even where that driver has not
seen the hazard: Nelson (Public Trustee of) v. Shinske (1991), [1992] 62
B.C.L.R. (2d) 302 (B.C.S.C.), Fraser J.
[68]
There is also a corresponding duty on a pedestrian as expressed by
Fraser J. He states simply that there is a duty upon motorists and pedestrians
alike to be vigilant for a reasonably apparent potential hazard.
[69]
When a driver approaches a crosswalk where she has some degree of
knowledge and experience that pedestrians approaching the bus stop or the
grocery store may be crossing, she should take the precaution of maintaining a
careful look-out and slightly reducing her speed. The very presence of the
marked crosswalk should have been an indication to her of the possible presence
of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is
possible she would have seen the plaintiff before the last second, when it was
too late to avoid him.
[70]
Her evidence was that her attention was focused directly ahead on the
roadway. While the standard required of a driver is not that of perfection, she
ought to have been able to glance to the periphery to check that there were no
pedestrians in the roadway.
[71]
Mr. Anderson also had the obligation to take care for his own
safety in his use of the road that morning. Had he crossed in either the
lighted crosswalk or within the informal boundaries of the unmarked crosswalk,
it is possible Ms. Kozniuk would have seen him. As well, had he remained
in the boundaries of the crosswalk, his journey to the curb on the opposite
side of the street would have been shorter and he may have been able to avoid
the car entirely. By angling across towards the bus stop, as he did, the
plaintiff was on the roadway for a longer period of time than he would
otherwise have been the case.
[72]
By leaving the crosswalk, the plaintiff was also entering a darker area
of the street, thus heightening his own risk as a pedestrian that the oncoming
driver might fail to see him. He failed to even glance over his shoulder as he
left the confines of the crosswalk to locate the car he had earlier noticed
approaching from the north on 12th. His awareness of the presence of
an approaching vehicle ought to have alerted him to the necessity of checking
its proximity to him.
[73]
Mr. Lemays first reaction was likely an honest one; after the
impact, he went to Ms. Kozniuk and told her it was not her fault because
the plaintiff had walked directly in front of her.
[74]
While Mr. Lemay could not know of the duties of a driver, his
reaction to the accident was to perceive that the plaintiff had put himself at
risk by failing to look for the approaching car when he was well outside the
crosswalk.
[75]
I find that both parties bear fault in this accident. Ms. Kozniuk
had reason to look for pedestrians in the area of the crosswalk and the bus
stop and she failed to keep a proper lookout. Therefore, her negligence
resulted in hitting the plaintiff.
[76]
The plaintiff left the relative safety of the crosswalk to jaywalk
towards the bus stop at a quick pace on a dark, wet street without looking over
his shoulder to locate the oncoming vehicle which he had earlier noticed as he
began crossing. The defendant has satisfied me that the plaintiffs failure to
take care for his own safety was a proximate cause of the accident.
Conclusion
[77]
The apportionment of liability required by s. 1(1) of the Negligence
Act is fact-driven. I must determine the degree to which each person was
at fault.
[78]
In reviewing the cases put before me by counsel, including Karran v.
Anderson, 2009 BCSC 1105, Beauchamp v. Shand, 2004 BCSC 272, Wong-Lai
v. Ong, 2011 BCSC 1260, I have determined that the relative degrees of
blameworthiness should be as follows: 30% to the plaintiff and 70% to the
defendant.
[79]
I have not been asked to award damages and have not heard the medical evidence
in this matter. I trust that my determination of liability will assist the
parties in reaching a settlement.
[80]
I will await submissions on costs. Should it be necessary for counsel to
appear before me, they may make arrangements through the Registry.
L.D. Russell J.
_______________________________________
The Honourable Madam Justice Russell