IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120120

Docket: 15089

Registry:
Nelson

Between:

Brian William
Cairney

Plaintiff

And

Kimberly M. Miller

Defendant

Before:
The Honourable Mr. Justice T. M. McEwan

Reasons for Judgment

[1]            
The plaintiff seeks a determination of liability in this personal injury
case. The trial of quantum has been adjourned pending this ruling.

I

[2]            
On February 23, 2009 the plaintiff was in a pedestrian crossing at the
intersection of Vernon and Hall Streets in downtown Nelson, British Columbia.
Hall Street north of Vernon climbs a long hill, such that where it enters
Vernon Street it levels out and the intersection itself is relatively flat.
After crossing Vernon Street, Hall becomes a one-way street. It does not physically
narrow at that point but the space that accommodated two lanes north of Vernon becomes
one lane with angle parking on both sides. A motorist driving up the hill on
Hall Street who crosses Vernon Street on the south side must move over somewhat
to the left to accommodate the change in the configuration of the street.

[3]            
There is no crosswalk across Hall Street on the north side of the
intersection because the corners of the sidewalks are right where the hill
crests and it would be dangerous to cross. Guardrails are in fact, installed at
the corners to prevent pedestrians from crossing.

[4]            
There is a crosswalk on the south side, which is where the plaintiff was
when the defendant’s car crested the hill and proceeded through the
intersection.

[5]            
Vernon Street is broader than Hall with room for angle parking on both
sides and one lane of traffic in each direction, west and east. It is divided
by a raised median to which street lights are affixed.

[6]            
On the evening of the accident, the weather was dull with perhaps some
light rain. It was dark. The plaintiff was wearing dark clothes. He said he saw
the defendant’s vehicle crest the hill. He said it was coming quite fast but
slowed as it approached. He could not see the driver to make eye contact
because of the dark and the headlights, but continued walking because he
inferred from the fact that the car had slowed down that the driver had seen
him. The vehicle did not stop, however, and stuck him on his right knee with
the driver’s side front bumper. He said that after the impact the vehicle
proceeded through the crosswalk. He picked himself up and hopped to the west
side of the intersection, completing his intended crossing of Hall Street.

[7]            
The plaintiff said that the driver came over to him after she had
stopped her car and said she was “… so sorry I hit you. I was looking for my
friends.” The plaintiff’s impression was that he was struck when he was most of
the way through the crosswalk, perhaps two-thirds.

[8]            
One independent witness testified, Brian Thompson. Mr. Thompson was
operating a cargo van, sitting higher than a person would in an ordinary
passenger car. He was proceeding west on Vernon and had stopped at the stop
sign where Vernon Street crosses Hall Street at the crest of the hill. He
looked around and noticed a number of pedestrians about, including the
plaintiff, whom he saw enter the Hall Street crosswalk to his left beyond the
median and the eastbound lane. The plaintiff was walking west in the same
direction Mr. Thompson was travelling. At almost the same time he was aware of
the plaintiff, Mr. Thompson noticed a vehicle crest the hill. He felt it was
moving quite quickly, estimating its speed to be about 45 kilometres per
hour. He said he gasped and immediately thought there was going to be an
accident. Mr. Thompson believed that the car did not slow down, and that the plaintiff
did not appear to look at the car. He said at impact the plaintiff appeared to
back up, while the vehicle stopped so suddenly its front end dipped.

[9]            
Mr. Thompson said the plaintiff fell over then got up right away. He went
over to the scene as soon as he was able to park his van to see if the plaintiff
was all right. The plaintiff said he thought he was “o.k.”.

[10]        
Mr. Thompson said that before the impact the plaintiff was walking
briskly. He thought the intersection was reasonably well lit. He could not
remember if it was dark outside but said he had no trouble seeing.

[11]        
The defendant said that she was coming up Hall Street intending to meet
a friend for coffee at the New Grand Hotel, an establishment on the south east
corner of Hall and Vernon Streets. She said she drove through the intersection
every day, although she said she had trouble with it over the years. She said
it is poorly lit. She said that in her view the pedestrians in Nelson are more
trouble than anywhere else she has been. She said that she had a spotless 35
year driving record. As she crested the hill she says she looked both ways for
other traffic. She says no one was in the crosswalk at that time. She said she
slowed down to look for a parking spot when she suddenly felt a bump on the
left side of her car. She saw the pedestrian put his hand on her hood.

[12]        
When the defendant stopped and spoke to the plaintiff she said “I am so
sorry, I did not see you.” She said the plaintiff said “I am sorry I thought
you were going to stop.”

II

[13]        
The provisions of the Motor Vehicle Act (the “MVA”) that
apply to this case are 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.

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,

[14]        
The plaintiff’s evidence was to the effect that he was well onto the
side of the road on which the plaintiff’s vehicle was travelling. It is
difficult to reconcile this with the evidence that he was struck on the
driver’s side bumper, and I think it more likely that he occupied the portion
of the crosswalk to the left of the defendant’s vehicle and had come to
somewhere near the centre when he was struck. I do not think this discrepancy
matters very much because, in my view, for the purposes of assessing the duty
under s. 179(1), the whole crosswalk was engaged, given that at that point Hall
Street was a one way, one lane street. The defendant failed to yield the right
of way in circumstances where she had a duty to do so.

[15]        
The defendant simply says that she did not see the plaintiff before
striking him. She submits that he must have been in the “blind spot created by her
roof pillar”, and suggests that poor lighting may have contributed.

[16]        
All of the witnesses to some degree acknowledged that the intersection’s
characteristics are awkward. Vehicles or pedestrians crossing Hall Street
either way on Vernon must be alert to traffic coming up over the crest of the
hill on the north of the intersection. Vehicles coming up the hill must be
alert for traffic or pedestrians attempting to cross on Vernon.

[17]        
The evidence of Mr. Thompson is of assistance as far as the lighting and
visibility are concerned. Although he did not remember if it was dark at the
time of the accident, he clearly recalled seeing both the plaintiff and the
defendant and anticipating an accident.

[18]        
I think it probable that the defendant was somewhat distracted. As she
testified, she was meeting people and the plaintiff responded that she said she
was “looking for [her] friends.”

[19]        
The simple fact is that, whatever explanation the defendant may have for
what happened, the plaintiff was there to be seen in the crosswalk and she was
negligent in failing to yield the right of way in the circumstances.

III

[20]        
The next issue is whether, in the circumstances the plaintiff was contributorily
negligent. Notwithstanding the duty imposed on drivers by s. 179(1) of the MVA
pedestrians have a duty under s. 179(2) and at common law to tend to their own
safety.

[21]        
In this regard the relevant evidence is that the plaintiff acknowledges
seeing the vehicle approaching and drawing an inference from the fact that it
had slowed down that the driver must have seen him. He did so without the basic
information one would obtain in better lighting conditions, eye contact,
although he said he looked toward the vehicle for that purpose. The question is
whether it was negligent of him to proceed on the basis that he expected the
defendant to stop without pausing to ensure that she did so.

[22]        
There are two lines of authority that must be considered. The first, tendered
by the plaintiff is found in Miksch v. Hambleton (unreported) Vancouver
Registry No. B874205, August 3, 1990. In that case Donald J. (as he then
was) addressed the law as follows:

[Counsel] for the defendant argues that the parties were
equally at fault; neither kept a proper look out and the plaintiff was not
entitled to ignore an oncoming vehicle simply because she was in a crosswalk.
He contends for a result similar to that reached by McEachern C.J.S.C. (as he
then was) in Ramsay v. Holt [unreported October 29, 1987
Vancouver Registry No. B852588] who apportioned negligence 50/ 50 as between a
pedestrian and a motorist in circumstances where they saw one another before
the collision yet proceeded to an accident; or, in the alternative, for a 25%
apportionment against the plaintiff, following the approach taken by McKenzie
J. in Fong et al. v. Gin Bros. Enterprises Ltd. et al [unreported
May 18, 1990 Vancouver Registry No. B890132] where a pedestrian was assessed
25% fault for walking quickly into the path of the defendant’s truck from
behind another motor vehicle that had had to stop suddenly for her.

I find it difficult to reconcile these cases with the
authorities upon which [Counsel] for the plaintiff, relies to support his
contention that the defendant must be found wholly to blame for the accident.
The Supreme Court of Canada has held in two decisions, Petijevich v. Law
(1968) 1 D.L.R. (3d) 690, and Coso v. Poulos (1969) 69 W.W.R. 38,
on facts close to those in the case at bar and upon a construction of the same
relevant provisions of the Motor Vehicle Act, s-ss. 181 (1) and (2),
that once a pedestrian has safely entered a crosswalk, absent any overt
negligence such as running or gesturing that could mislead motorists into
thinking they may proceed safely, the pedestrian may assume that the motorists
will yield the right-of-way and will share no responsibility if struck in the
crosswalk. Neither in Ramsay, (supra) nor in Fong, (supra) was
there any reference to the Supreme Court of Canada authority cited above.
Fulton J. in Cerra and Cerra v. Bragg [unreported April 22, 1980
Vancouver Registry No. B790322 assessed 100% liability against a motorist,
somewhat reluctantly because of the plaintiff’s inadequate look out, but he
felt bound by Petijevich v. Law (supra) and Coso v. Poulos,
(supra) which he interpreted in this way at p. 14:

"As I appreciate the result of those cases, it is
that where, as here, a pedestrian has lawfully entered a cross-walk, giving him
or her the right-of-way, then while that pedestrian is not entitled to make a
sudden stop, or accelerate and run, so as to create an unexpected and
unavoidable hazard, nevertheless if the pedestrian proceeds at a normal and
proper pace, in circumstances where the driver has or should have ample
opportunity to see him or her and avoid collision, then the pedestrian
proceeding in that manner, even although he or she may see or ought to have
seen approaching traffic, is entitled to assume that such traffic will observe
its duty to yield the right of-way, and the pedestrian is not negligent in
proceeding accordingly."

I am satisfied that the facts at bar fit within the four
corners of the rule laid down by the Supreme Court of Canada. The plaintiff
started to cross the street when it was safe to do so. I accept Ms.
Gudbranson’s evidence that the plaintiff hesitated at the centre line, but I do
not think anything turns on that for the simple reason that her movements could
not have influenced the defendant who never saw her. The hesitation may be
explained by her reaction to the sight of the defendant’s car, if she saw it,
but I find she must have thought that any oncoming traffic would stop for her.
In the result I hold the defendant wholly responsible for the accident.

[23]        
A qualifying line of authority was set out in Dionne v. Romanick,
2007 BCSC 436, per Gray J. as follows at paras. 88-93:

[88]      The Supreme Court of Canada set out three pertinent
legal principles in British Columbia Electric Railway Co. v. Farrer,
[1955] S.C.R. 757, 5 D.L.R. 161, as follows:

(a)        When any contributory
negligence is set up as a defence, its existence does not depend on any duty
owed by the injured party to the party sued; what is required is to establish
that the injured party did not, in his or her own interest, take reasonable
care for himself or herself and contributed, by want of care, to his or her own
injury;

(b)        Having the right-of-way does
not eliminate the common law duty to use care for one’s own safety; and

(c)        Stepping from the curb into a
crosswalk with the right-of-way without looking in the direction of a known
danger will generally amount to an act of contributory negligence if an injury
results.

[89]      Mr. Farrer was struck by a bus in a crosswalk in
Vancouver at the intersection of Pender and Beatty Streets. Mr. Farrer stood
waiting at the curb, glanced to his left, saw a bus and looked away from the
bus. After the sign indicating that he could walk became illuminated, he did
not look back at the bus, but instead left the curb and started walking in the
crosswalk. The bus driver drove through the intersection essentially on a red
light and struck Mr. Farrer when he was a few steps into the crosswalk. Mr.
Farrer was held to be 20% contributorily negligent by failing to look and
observe the bus before leaving the curb.

[90]      The law applicable to pedestrians in crosswalks was
considered by Donald J., when he was a judge of this Court, in Miksch v.
Hambleton, [1990] B.C.J. No. 1810 (S.C.). He explained that the Supreme
Court of Canada, in both Petijevich v. Law, [1969] S.C.R. 257 and
Coso v. Poulos, [1969] S.C.R. 757, had decided as follows:

…once a pedestrian has safely entered a crosswalk, absent
any overt negligence such as running or gesturing that could mislead motorists
into thinking they may proceed safely, the pedestrian may assume that the
motorists will yield the right-of-way and will share no responsibility if
struck in the crosswalk.

[91]      The defence argued that Petijevich
can be distinguished because in that case there was no evidence showing that
the plaintiff crossed the highway without looking to see whether it was safe to
do so, or did anything to jeopardize her own safety once she made substantial
entry into the intersection.

[92]      The burden on the defendant where the plaintiff
pedestrian had the right of way was described by Wallace J.A. as follows in Feng
v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), at p. 120:

In my view the plaintiff in the circumstances of this case was
entitled to assume that the defendant was going to obey the law and yield the
right-of-way to her. Her right to rely on that assumption continued until such
time as she knew, or ought to have known, that the defendant was not going to
grant her the right of way, whereupon the plaintiff’s obligation to avoid
injury to herself superseded her right to exercise her right of way. The onus
is on the defendants to establish that the plaintiff knew, or ought to have
known, that the defendant driver was not going to grant her the right of way,
and that, at that point of time, the plaintiff could reasonably have avoided
the accident.

[93]      Taylor J. discussed the defendant’s difficult
burden of proof as follows in Olesik v. Mackin, [1987] B.C.J. No.
229:

The defendants contend that Mr. Olesik had his head down as
he was crossing the road, that he failed for this reason to see their vehicle,
and that he should accordingly be held at least partly to blame for the
accident.

It was a dark, rainy January evening and the evidence
suggests that Mr. Olesik was probably looking down, protecting himself from the
elements. But I find no adequate basis in the evidence for the contention that
his failure continually to watch approaching vehicles caused or contributed to
his injuries.

To meet the onus which rests on the defendants to prove such
an allegation of contributory negligence, they must, in my view, establish much
more than inadequate attention on Mr. Olesik’s part. They must also establish:
(i) at what distance a person in Mr. Olesik’s position should have realized,
from the speed of the approaching headlights, that the defendants’ car was not
going to yield him the right of way; (ii) that it would then have been possible
for such a pedestrian, by stopping, going back or rushing forward, to avoid
their car; and (iii) that a reasonable person in Mr. Olesik’s circumstances – a
senior citizen pushing a cart – would have taken and succeeded in such evasive
action.

The evidence being quite inadequate to establish such a case,
I find the defendant alone responsible for his injuries.

[24]        
In Bell v. Thorner, 2009 BCSC 44, Humphries J. addressed the law
as follows at paras. 31-39:

[31]      Sections 179 and 181 of the Motor Vehicle Act
R.S.B.C 1996 c. 318 provide:

s. 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.

s. 181 Despite [s. 179], a driver of a vehicle must

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

[32]      In Funk v. Carter, 2004 BCSC 866, 32
B.C.L.R. (4^th) 158, Williamson J. reviewed a number of cases which
had considered these sections, including Kuharshi v. Inder [1986]
B.C.J. No. 2762, where the concept of “substantial entry” arose. In that case,
the court held that where a pedestrian has clearly established prior entry to
the intersection, he or she need not surrender it even when not crossing at a
crossway. A substantial prior entry onto a highway will achieve the
right-of-way. At the conclusion of his review of the cases, Williamson J. said
at para. 21:

These cases show that both parties, regardless of the
precise wording of the statute, retain a common law duty of care to act in a
manner promoting their own safety and the safety of others.

[33]      From the plaintiff’s point of view as advanced
during argument, it matters only that he was 24 feet out into the intersection
before he was hit, and thus had established the right of way. From the
defendant’s point of view, it matters only that he was travelling the speed
limit, and given the conditions, could not reasonably have stopped in time to
avoid the collision.

[34]      It seems to me that there are other factors that
enter into the responsibilities of each party in these circumstances.

[35]      The defendant was a novice driver, travelling in a
residential area in bad weather conditions and on slippery roads. It was very
dark. Thrift Avenue is a bus route, which increases the possibility that
pedestrians might be in the vicinity. He was approaching an intersection. Mr. Thorner
was travelling at the maximum allowable speed, but in those particular weather,
visibility, and road conditions, he should have adjusted his speed generally,
and in particular as he neared a residential intersection so that he would be
able to fulfil his responsibility to take reasonable care for other users of
the highway, including a pedestrian crossing in the unmarked crosswalk. Although
he was travelling at the prescribed speed, that speed, in those conditions,
made it almost impossible to avoid an accident, should a pedestrian cross his
path. I find that Mr. Thorner was negligent.

[36]      The plaintiff has not satisfactorily explained why
he did not see an approaching vehicle with its headlights illuminated that was
there to be seen. It was a dark rainy night. He was dressed in dark clothing. He
was crossing a through street at an unmarked uncontrolled intersection. A bus
had just passed in front of him, indicating the presence of traffic. Mr. Bell
left a place of safety and stepped out into the unmarked crosswalk at the
intersection, wearing dark clothing on a dark rainy night, without checking
adequately or at all to see that there was no oncoming traffic from his left. There
is no other available conclusion, given that the Thorner vehicle, headlights
on, was there to be seen, approaching on the roadway. Mr. Bell should have been
aware that it would be difficult for a driver on such a night to see a person
dressed in dark clothing. It seems obvious that he did not take reasonable care
for his own safety. I find that Mr. Bell was contributorily negligent.

[37]      It is therefore necessary to apportion liability. Degrees
of fault or blameworthiness are assessed by considering the nature and extent
of the departure from the respective standards of care of each of the parties,
that is “the amount by which each proximate and effective causative agent fell
short of the standard of care required of that person in all the
circumstances”: Cempel v. Harrison Hotsprings Hotel Ltd. (1997),
43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212).

[38]      In these circumstances, it is difficult to ascribe
precise amounts of liability based on the respective departures from the
applicable standard of care for each of Mr. Bell and Mr. Thorner. Mr. Bell,
before leaving his place of safety on the curb and stepping into the roadway in
these weather and lighting conditions, while dressed in dark clothing, should
have kept adequate watch for oncoming cars that were there to be seen, but Mr.
Thorner also had a responsibility to drive in a manner, in these unfavourable
conditions, that would allow him to take care for other reasonable users of the
road, and cope with the possibility that a pedestrian might cross in an
unmarked crosswalk on a bus route in a residential area. Neither showed a
reckless disregard for their own safety or those of others, but their
respective lapses each carried risks of foreseeable harm.

[39]      In these circumstances,
I am unable to find that either should bear a greater portion of blame, and I
divide liability equally between Mr. Bell and Mr. Thorner. Given the divided success,
unless there is a reason to speak to costs of which I am not aware, each party
should bear his own costs.

[25]        
Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible
in the crosswalk when the defendant’s vehicle crested the hill and entered the
intersection. I cannot accept that poor lighting or dark clothing had anything
to do with what happened and must infer that the defendant was not paying
sufficient attention in the circumstances. The plaintiff did nothing sudden or
unusual to cause the collision. He was simply established in the crosswalk
while the defendant’s car was approaching.

[26]        
Mr. Thompson’s evidence differs from that of both the plaintiff and the
defendant with respect to speed. Witnesses often differ on the characterization
of such matters, and both the plaintiff and the defendant agree that she was
proceeding slowly, a factor in the plaintiff’s calculation that he believed the
defendant was going to stop.

[27]        
This is difficult to reconcile with Mr. Thompson’s immediate reaction
that there was going to be a collision between the plaintiff and the
defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the
defendant’s vehicle appeared to be an immediate and obvious hazard to the
plaintiff, because it was going too fast.

[28]        
I have carefully considered whether the plaintiff’s failure to apprehend
that the defendant was not going to yield to him, engaged an obligation to
avoid injury to himself that modified his right to the right of way (See Feng
v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at
para. 23 above).

[29]        
The evidence, taken as a whole, however, suggests that the plaintiff
assumed that the defendant would stop in circumstances when it was reasonable
to expect she would see him. It is often possible to say in retrospect that had
a party paid more attention, he or she might have avoided the collision. In the
circumstances here, I think this would impose a standard of more than usual diligence
and watchfulness on the plaintiff at odds with his right to be in the crosswalk
and the presumption that the plaintiff would abide by the rules of the road.

[30]        
Accordingly, I find the defendant fully liable for the collision.

“T.M. McEwan J.”

________________________________

The Honourable Mr. Justice McEwan