IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120214

Docket: M032644

Registry:
Vancouver

Between:

Connor
Allen McIlvenna

Plaintiff

And

Gerd Julius Viebig

Defendant

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment – Trial

INTRODUCTION

[1]            
In September 1995, the plaintiff, a small boy riding his bicycle, was injured
in a collision with a motor vehicle driven by the defendant.  The collision
occurred at or near an uncontrolled T-intersection where a road that runs along
the west side of the Tsawwassen Town Centre Mall (which I will refer to as the north-south
road) intersects with a road now called Library Road.  The plaintiff was making
a left turn.  The trial was only concerned with the question of liability, as
the issue of damages was severed by order of the Court.

[2]            
The plaintiff’s counsel alleges that defendant driver was negligent in three
ways:

1.              
failing to yield the right-of-way to the plaintiff, causing the
accident, contrary to s. 175 of the Motor Vehicle Act, R.S.B.C.
1979, c. 288 [Motor Vehicle Act];

2.              
failing to exercise special care or greater vigilance knowing, or
because he ought to have known, children were present contrary to s. 183(c)
of the Motor Vehicle Act;

3.              
failing to keep a proper lookout required both under statutory and
common law, given all the circumstances.

[3]            
The defendant says that the plaintiff has failed to prove that the
defendant was negligent, or that any negligence caused injury to the
plaintiff.

[4]            
This is the second trial of this matter, a new trial having been ordered
by the Court of Appeal in McIlvenna (Litigation guardian of) v. Viebig,
2008 BCCA 105.

[5]            
Evidence about the precise location of the accident was not extensive
and by way of introduction to the facts and some areas of dispute, I will identify
some of the witnesses who testified at the trial I heard.

Witnesses

[6]            
The plaintiff is Connor McIlvenna.  At the time of the accident, he was only
6 years 9 months old and was small for his age.  He was riding his bicycle,
following his brother, Patrick McIlvenna, who was 9 years old, and another boy,
who had both negotiated a left turn at the T-intersection a few moments earlier. 
Patrick McIlvenna testified but the plaintiff did not, and the defendant seeks
an adverse inference that the plaintiff’s evidence would not assist him in
establishing negligence on the part of the defendant.

[7]            
The plaintiff, who lived with his family within a few blocks of the
accident, called his mother Shawne McIlvenna to testify.  Although she was not
an eyewitness to the accident, she was able to testify about, among other
things, the general layout around the intersection.  After the accident,
Patrick McIlvenna ran home and brought his father to the scene, but his father did
not testify at trial.  The defendant asks me to draw an adverse inference
against the plaintiff that his father’s evidence about the location of the
defendant’s vehicle after the accident would not assist the plaintiff’s case.

[8]            
The defendant, Gerd Julius Viebig, was 71 years old at the time of the
accident and was 86 years old at the time of this second trial.  Although examined
for discovery, he did not testify at trial.  The plaintiff seeks an adverse
inference from his failure testify at the trial. The defendant’s counsel
tendered an explanation that he was in poor health and living in Germany.  Counsel
for the defendant submitted that the defendant could not be expected to travel
by air due to arterial hypertension, and because he suffers from multi-cardiac
infarction with cerebral insufficiency.

[9]            
As I will discuss later, the plaintiff applied to reopen the trial some
months following closing argument, which application I allowed, and the parties
introduced further medical evidence concerning the defendant’s eyesight.  The
plaintiff seeks to have an adverse inference drawn against the defendant for earlier
non-production of medical records.

[10]        
The plaintiff called May Nichols, now 67, who had worked at many jobs
and for a short period was a paramedic.  Immediately before the accident she was
driving her car in the same direction as the defendant, two cars behind.  She did
not actually see the collision itself but testified, among other things, to the
speed of the defendant’s vehicle, to assisting the plaintiff at the scene, and
to the location of the defendant’s car in the intersection where it came to
rest.

[11]        
The plaintiff called Donald J. Rempel, an accident reconstruction
expert, who provided a written expert report on the likelihood of the motor
vehicle moving when the impact occurred, possible paths followed by the young
cyclist, and distances covered by vehicles based on their speed.

[12]        
The plaintiff called Constable Ian Pitcairn, a Delta police officer who
attended at the scene after the accident and did a sketch in his notes.  He was
not called to testify at the first trial.

[13]        
Paul Goulet was the only witness called by the defendant at the trial. 
At the time of the accident, Mr. Goulet was a resident of a house on 55^th
Street, and was standing at the side of that property on south side of Library
Road.  He witnessed the collision between the defendant’s vehicle and the young
boy on the bicycle.  He also was not called to testify at the first trial.

THE ACCIDENT

The Basic Layout

[14]        
The accident occurred in Delta, to the west of the Tsawwassen Town
Centre Mall near the library on a road that runs north-south (the previously
described north-south road).  The road bends from north of the library, and as
it runs along the west side of the library, it forms a T-intersection with a
road now called Library Road. The site has changed considerably from how it was
when the accident occurred in 1995, with the construction of condominiums on
Library Road.

[15]        
In 1995, at the time of the accident, the T-intersection was unmarked.  Library
Road was slightly sloped from west to east towards the T-intersection.  If a
motorist or cyclist travelling east turned left (north) from Library Road onto
the north-south road, he would go onto a relatively flat surface and then take
a right turn or head east downhill along a steeper slope on the north side of
the library or mall.  The north-south road was paved and the travelled portion
was one lane in each direction. There were no sidewalks along the north-south
road.  In 1995, Library Road was about two lanes wide and although there is
some question in this respect I find that it was a paved, asphalt road, with gravel
or grass shoulders.  On the north and south side of Library Road were houses
that faced west onto 55^th Street.

[16]        
There are issues arising from the evidence concerning: the foliage at or
around the intersection; the possible lines of sight for the young cyclist and
the driver at the time of the accident; and, the number of parking spaces,
located on the northwest corner of the intersection, at the back of the
property at 55^th and Library Road.  An important issue in this case
is whether, at the time of the accident, there was an area behind the parking
spaces at the northwest corner of the intersection that allowed drivers to back
out of a parking space without entering the southbound lane of the north-south road.

The Day of the Accident

[17]        
September 14, 1995 was a clear sunny day.  The accident occurred at
around 3:45 p.m.  School was out for the day.

The Collision

[18]        
The collision occurred when the young cyclist turned left from Library
Road onto the north-south road.  Connor McIlvenna was on his bicycle and was following
his older brother and another boy who had turned from Library Road onto the north-south
road, intending then to turn right along the road to the north of the mall. 
The boys were planning on visiting a store on the other side of the mall.

[19]        
At that time, the defendant was travelling south on the north-south road,
and was looking for a parking space.  The collision occurred when Connor’s bike
collided with the front of the vehicle driven by the defendant.  The hood, the
right fog light and the licence plate were damaged in the collision and repairs
cost approximately $2200.  The forks on the plaintiff’s bike were bent.  The helmet
that the plaintiff was wearing was damaged.  The styrofoam under the helmet was
crushed or dented.

[20]        
After the collision, the car and the bicycle came to rest in the T-intersection. 
There was a scratch on the ground that was probably caused by the bike being
dragged by the car for some distance before it came to a stop.

The Foliage and Layout at the Intersection

[21]        
There were aerial photographs introduced of the scene of the accident;
both some years before (in 1990), and some years after (in 2001).  The scene,
as I said, has changed significantly since the accident, and at trial there was
some controversy about the makeup of the general area of the intersection at
the relevant time.

[22]        
The evidence shows that near the northwest corner of the T-intersection
was the back of the property of the home on 55^th Street (the street
parallel to the north-south road and to the west).  Along the back of that
property that fronted on 55^th Street near the northwest corner of
the intersection was a fence.  Although there was some uncertainty, I find that
the evidence shows that there were also trees and bushes at the back of the
property that probably grew up to and along the back property line and along
the fence.

[23]        
Behind that property, or near the northwest corner of the
T-intersection, were a number of parking spaces.  These parking spaces were
behind the house at the northwest corner and were perpendicular to the north-south
road.  At the northwest corner there were several, probably at least three or four,
parking places and a curb that extended along the south side of the
parking space closest to the T-intersection.  The parking spaces extended to and
were parallel with Library Road.  That much is not really in dispute.  What is disputed
is whether there was space for cars to back out of those parking spaces without
entering the north-south road.

[24]        
Although the eye-witness, Paul Goulet, who lived in the house on the
south side of Library Road for about three months prior to the accident, testified
that there was no space for a car to pull out of one of the parking spaces
without entering the north-south road, upon a consideration of all the
evidence, I disagree.  I find that there was enough room for a car to back up out
of a parking spot, including the one closest to Library Road, without entering
the southbound lane of the north-south road.  In this respect, I prefer the
evidence of Shawne McIlvenna that there was room for motor vehicles to back out
of the parking spaces and prepare to enter the north-south road without those
vehicles actually entering the southbound lane of the north south road.  I find
that this evidence is consistent with the aerial photographs taken some years
before and after the accident.  At trial, I understood counsel for the
defendant acknowledged the possibility that Mr. Goulet’s recollection in
this respect may well have been incorrect.

[25]        
On the evidence, I also find that at the time of the accident there was
likely a car parked in the last space on the northwest corner; the space
closest to the intersection.  That was the evidence of Mr. Goulet.  His
evidence was, to some degree, supported by the evidence of Ms. Nichols,
the driver two cars behind Mr. Viebig, who was familiar with the area and
said that there were always cars parked there.

ADVERSE INFERENCES

[26]        
As I noted earlier, the plaintiff seeks an adverse inference to be drawn
from the defendant failing to call Mr. Viebig to testify at trial, and
from the failure of the defendant to produce all relevant medical documents
relating to Mr. Viebig’s visual difficulties.  The defendant seeks an
adverse inference to be drawn from the plaintiff failing to testify, and from the
plaintiff failing to call his father to testify.  I will discuss these issues
in the course of these reasons.

ISSUES

[27]        
There is no dispute that the accident occurred when the defendant and
the young cyclist collided as the defendant proceeded south on the north-south road,
and the cyclist was making a left turn onto the north-south road.  However, there
are key issues in this case that are disputed and must be determined: where the
collision took place, if that can be determined on the evidence; whether, if
the collision is found to have taken place within the intersection, there was
an imminent hazard of the automobile and the bicycle colliding if they remained
on the same course; and whether the defendant driver had the obligation to
yield the right-of-way.

[28]        
Below I will discuss the plaintiff’s theories of liability.  I will also
discuss the potential issue of contributory negligence on the part of the
plaintiff.

[29]        
The burden is on the plaintiff to establish, on a balance of
probabilities, that the defendant was negligent and that the negligence of the
defendant caused the plaintiff injury.

[30]        
As I noted above, the plaintiff has advanced three grounds for finding
the defendant negligent.  In the course of discussing these arguments, I will
discuss the evidence introduced when the plaintiff was given leave to reopen his
case and file further argument. I will consider all of these theories of
liability as a whole, but I find that it is useful to start with the question
of right-of-way.

1. FAILING TO YIELD
RIGHT-OF-WAY

[31]        
The plaintiff’s counsel suggests that the plaintiff reached the
intersection first, and that at the time of the collision the plaintiff was
well into his turn and the defendant motorist was near our about to enter the
intersection.  The scratch marks, he submits, indicate that the bicycle was
dragged approximately a car length.  According to a diagram drawn by the
attending police officer, the defendant’s vehicle came to rest in the middle of
the intersection.  The plaintiff says that the expert evidence shows the
defendant’s car was moving, and the driver did not see the plaintiff approach
or enter the intersection.  Simply put, Mr. Murphy argues that the
plaintiff had the right-of-way and the accident was caused by the defendant.

[32]        
Even if the defendant entered the intersection first, the plaintiff says
that the defendant was nevertheless negligent because the law is clear that where
two drivers approach the intersection at so nearly the same time that there
would be imminent hazard of collision if both continued the same course at the
same speed, the driver on the left, even if he reaches the intersection first,
must yield the right-of-way to the driver on the right.  The plaintiff argues
that the plaintiff had the statutory right-of-way as he was on the right hand
side of the defendant driver at the uncontrolled T-intersection in the mall
parking lot.  The plaintiff further contends that there was no evidence that
upon becoming aware of the defendant’s disregard of the law, the plaintiff had
a sufficient opportunity to avoid the accident, as a reasonably careful and
skilful driver would have done.

[33]        
The defendant, on the other hand, contends that the evidence does not
show that the plaintiff and the defendant arrived at the intersection at
“approximately the same time”.  The defendant submits the evidence advanced in
the plaintiff’s case does not show where the accident occurred, only where the
vehicle and the bicycle ended up after they came to rest following the accident.
The defendant submits that none of the evidence in the plaintiff’s case establishes
the point of impact, but that the evidence in the plaintiff’s case is
consistent with the point of impact being north of the intersection.  The
defendant further submits that the evidence of both the defendant and the
independent witness is that the impact occurred when the plaintiff cut the
corner and drove headlong into the defendant’s car, which was in its proper
lane and had not yet reached the intersection.

[34]        
Based on the evidence in this case, and for the reasons set out below, I
find that it is more probable than not that the collision occurred outside of
the intersection when the plaintiff cut the corner too sharply and ran into the
defendant’s vehicle.  As I make the finding that the accident happened in the
defendant’s lane before he reached the intersection, the defendant is not
liable on a right-of-way analysis.

Discussion

[35]        
I refer to certain passages from the decision of the Court of Appeal
ordering a new trial in this case.  Although the three judges had different
perspectives given the evidence at the first trial and the reasons of the trial
judge, these passages describe legal principles that apply in this trial.

[36]        
Mr. Justice Tysoe, at para. 6 of his dissenting judgment, set
out the obligations of drivers approaching or entering a T-intersection such as
the one in this case:

The T-intersection was
uncontrolled in the sense that there were no traffic lights or signs to govern
movement through the intersection.  Section 173(1) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, provides that where two vehicles approach or enter
such an intersection at approximately the same time, the driver of a vehicle
must yield the right-of-way to the vehicle on the driver’s right.  In this
case, the appellant was to the right of the respondent.  The other relevant
provision of the Act is s. 183(2)(c), which provides that a cyclist
must ride as near as practicable to the right side of the road.

[37]        
Section 175 of the Motor Vehicle Act (now s. 173) sets out
who has the right-of-way at an uncontrolled intersection such as this.  Section
175 states:

Except as provided in s. 177,
where 2 vehicles approach or enter an intersection from different highways at
approximately the same time and there are no yield signs, the driver of a
vehicle shall yield the right of way to the vehicle that is on the right of the
vehicle which he is driving.  Where there is a yield sign, the driver of a
vehicle facing the sign shall yield the right of way to all other traffic.

[38]        
Section 185(1) of the Motor Vehicle Act  (now s. 183(1)),
which describes the rights and duties of a cyclist, reads:

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.

[39]        
In a separate judgment allowing the appeal, Madam Justice Saunders discussed
the principles concerning the position of a servient driver at an uncontrolled
intersection such as this (at paras. 47-48):

The test as to the application of that section is set out in Walker
v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.).  In discussing a collision at an
uncontrolled intersection and the position of the servient driver in
litigation, Cartwright J. said at 460-61:

It was the appellant’s primary duty as he approached Hugel
Ave. to keep a look-out for drivers approaching upon the right upon that
highway and to make way for them; see Swartz Bros. v. Wills, [1935] 3
D.L.R. 277, S.C.R. 628.

[…]

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of [the] opinion that when A, the
driver in the servient position, proceeds through an intersection in complete
disregard of his statutory duty to yield the right-of-way and a collision
results, if he seeks to cast any portion of the blame upon B, the driver having
the right-of-way, A must establish that after B became aware, or by the
exercise of reasonable care should have become aware, of A’s disregard of the
law B had in fact a sufficient opportunity to avoid the accident of which a
reasonably careful and skilful driver would have availed himself; and I do not
think that in such circumstances any doubts should be resolved in favour of A,
whose unlawful conduct was fons et origo mali.

This approach to the duty of the servient driver was well
expressed in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 at 359, 32
W.W.R. 234 (Man. C.A.):

Prior entry into an intersection does
not mean priority by a matter of a few feet or by a fraction of a second ahead
of another vehicle; it means entry into an intersection with the opportunity of
clearing it without obstructing the path of another vehicle under normal
circumstances.  "Who hit whom" is not the test. The driver on the
left, even though he may reach the intersection first, must yield the
right-of-way to the driver on the right where they approach the intersection so
nearly at the same time that there would be imminent hazard of collision if
both continued the same course at the same speed.

[Emphasis in original]

[40]        
It is clear from the Motor Vehicle Act that at an uncontrolled
intersection, the driver on the right has the right-of-way.  The comments above
highlight the law that even if the driver on the left is in the intersection
prior to the driver on the right, if it can be shown that both drivers were
approaching the intersection at approximately the same time such that there
would be “imminent hazard of collision if both continued the same course at the
same speed”, then the obligation is on the driver on the left to yield to the
driver on the right.  Moreover, even the driver with the right-of-way at an
uncontrolled intersection has to exercise reasonable care and avoid a collision
if he or she has “sufficient opportunity” to do so, and which “a reasonably
careful and skilful driver would have availed himself”.

[41]        
The determination of whether the plaintiff has proven that the defendant
was negligent on a right-of-way analysis depends on a consideration of all the
facts.  The difficulty in this case is the determination of the relevant facts
from somewhat sparse evidence on key points.

[42]        
Moreover, there is the important issue of where the accident took place
to be considered under the right-of-way analysis.  As Mr. Justice Hall
pointed out at para. 38 of the appeal decision from the first trial, the
question of location of the collision is important to the right-of-way analysis
because:

If the collision occurred outside
the intersection, by the cyclist turning and colliding with the vehicle as it
was travelling along the street prior to entry into the intersection, it is
difficult to see a sound basis for liability on the part of the driver of the
automobile.  On the other hand, if the collision occurred in the intersection,
the question of right-of-way would be in issue.

[43]        
Therefore the location of the collision is an important question with
respect to the analysis about right-of-way at an uncontrolled intersection.  Let
me discuss the evidence relevant to the question of the location of the
accident and who had the right-of-way.

[44]        
One of the people who attended the site to help the young boy after the
accident was May Nichols, who has lived in the general area of the accident for
over 60 years.  That afternoon, Ms. Nichols was driving along the road
that goes around north of the library and had made the turn onto the north-south
road heading alongside the library.  At the time of the accident, her vehicle was
travelling two cars behind the defendant’s vehicle in the same direction. 
There was a mid-size car in front of her vehicle and in from of that, the
defendant’s Mercedes.  She described herself as travelling at between 10-15 MPH
when all of a sudden the cars ahead of her came to a halt.  Before the accident
she remembers seeing at least one child on her left hand side and two on her
right.  On cross-examination, Ms. Nichols agreed that she was going the
same speed as the two cars in front of her, which she thought was about 10-15
MPH.  She said she thought the speed she was going was a speed that showed
extreme care for other users of the roadway.  On cross-examination, she did not
recall previously saying they were “inching along” but stated that “inching
along” would be a fair phrase to use to describe the speed of the vehicles. 
She described herself as exercising extreme care and said that the cars were
going very slowly.  She did not see the cyclist before the accident.  She
believed she saw something move from right to left ahead of her just before the
accident but could not identify it.

[45]        
She got out of her car and went to the Mercedes.  A man was standing
beside his door and she saw a young child underneath the car.  She said she
literally had to get underneath the car to observe the young child.  She did
not speak to the investigating officer at the scene but she remembered a scrape
under the car of about 20 inches in length.  She described the car as being
“almost to the middle or three-quarters of the way towards where I was going (a
reference to the location of the Mercedes in the intersection after it had
stopped).

[46]        
Ms. Nichols noted that before the accident, she was aware that children
rode their bikes east on Library Road, and turn to go north, and then take the
sharp corner down the steep hill to pick up some speed.

[47]        
Evidence that was read-in from the examination for discovery of the
defendant was that he did not see the boy before the collision.  That is
consistent with the comment that appears to have been made by the defendant to Ms. Nichols
at the scene.

[48]        
Ms. Nichols did not see the collision and did not testify about the
location of the collision.  However, the evidence of Ms. Nichols of the
car ending up in the intersection is consistent with evidence of the police
officer, Cst. Pitcairn, who prepared a sketch (not to scale) trying to
show where the vehicle came to a stop.

[49]        
In addition to the sketch, Cst. Pitcairn noted that a witness, Paul
Goulet, was at the scene when he arrived.  He also noted that the Mercedes had
a small dent on the hood, scratch marks underneath the vehicle “one car
length”, that the bike had been dragged and the license plate of the car had
been bent.  The officer agreed that there was nothing in his notes with respect
to the boy ending up in front of the car rather than under the car when it came
to a rest.

[50]        
An expert witness called by the plaintiff, Donald Rempel, gave opinion evidence
in his report that the defendant’s vehicle was likely moving at the time of
impact.  This evidence is consistent with the defendant’s evidence that he did
not see the boy until the collision, and the fact that the plaintiff ended up
under the vehicle (presumably because of the forward motion of the defendant’s
car).  Mr. Rempel observed that the grill of the right fog light was damaged,
and so was the hood.  He opined that the hood was probably damaged when it came
in contact with the helmet worn by the young boy.  In Mr. Rempel’s opinion,
the brakes on the defendant’s vehicle were applied after the plaintiff was
struck by the moving car, which was apparent from the damage to the front of
the defendant’s car and the assumption – consistent with Ms. Nichol’s
evidence – that the boy ended up beneath the front of the car at rest.

[51]        
However, Mr. Rempel was unable to opine on the location of the
collision being inside or outside of the intersection.  He agreed with Ms. Wright,
counsel for the defendant, that the physical evidence referred to in his report
was not inconsistent with the boy on the bicycle “cutting the corner”, ending
up on the wrong side of the road for southbound traffic, and running into the
front of the Mercedes, even before the Mercedes reached the intersection.

[52]        
There was a sketch that was done by Mr. Viebig that was introduced
by the defendant as part of a series of questions on discovery that the
defendant read in to the record to explain or complete answers on discovery
questions read in by the plaintiff.  Again, like the sketch done by Officer
Pitcairn, it was said not to be to scale and was ambiguous as to the location
of the collision.  Mr. Murphy says that the drawing does not prove the
plaintiff’s case but is consistent with it.  He submits that there is nothing
in the drawing that supports the defendant’s position that his view was
obstructed before the collision.

[53]        
Patrick McIlvenna was 9 years old at the time of the accident.  He
testified but he could not, I find, give evidence on the precise location of
the collision, as he had turned ahead and did not see it, but heard it.  He was
some distance down past the intersection when his brother negotiated the
curve.  Patrick McIlvenna said he had looked at the defendant driver and made
eye contact as he rode by.  He said that the Mercedes travelling forward was
not accelerating but was not slowing down either.  He said that he looked back
and saw that Connor was on the right hand side of Library Road, following the
path that Patrick had just taken.  After Patrick made eye contact, he said that
he “looked over to where Connor would have been coming down Library Road and
then I watched him as he came down for about as long as I could”.  He then said
that just as he turned to straighten his bike out, he heard a collision.  Patrick
McIlvenna gave evidence at the earlier trial that the defendant’s car had not
come around the hill until after he had crossed the north-south road, which evidence,
if correct, would have put the defendant’s car further away from the
intersection when the boys in front of Connor made their turn than he testified,
but he said at the trial before me that those answers were not true.  Some of
his evidence suggesting that the defendant was “glaring” and was driving a car
with “vicious looking fins” appears to be an attempt to characterize the
defendant in an unfavourable light.

[54]        
Given Patrick McIlvenna was ahead of his brother, I find he was not in a
position to give accurate evidence of the location of the collision.  It is
unclear how far ahead he was; the discovery evidence from Mr. Viebig was
that he did not know if there were “three, four, or five bicycle lengths in
between them”.  Taking into consideration Patrick McIlvenna’s position ahead of
his brother, his prior inconsistent evidence of location of the defendant’s car
after he negotiated the corner, and his close connection to his brother which I
think affects his objectivity, I conclude that I should place modest weight on
his evidence of where the plaintiff was at the time of the collision.

[55]        
The only eyewitness to the collision, I find, was Paul Goulet.  He did
not testify at the first trial.  However, the plaintiff says that his evidence
is not reliable.

[56]        
Mr. Goulet testified that in September 1995 he lived at the house
on 55^th Street which backed onto the southwest corner of the
T-intersection in question in this case.  There was a makeshift driveway at the
back of the house.  On the day of the accident he was outside on the north side
of the property where he lived.  One of the tenants was washing a car and had
flooded the driveway so they walked by the roadway of Library Road to stand and
talk.  Mr. Goulet said that he heard a couple of boys yelling on his left,
or to the west, and they were coming down on their bikes on what is now Library
Road.  Mr. Goulet said they were just yelling like kids do and they
started to pedal really fast down the roadway.  He said he heard two voices and
he followed them down the grade of the roadway.  He said as they turned the
corner he saw the first boy and a Mercedes coming in opposite directions; the
Mercedes heading towards the intersection.  At that point, he heard the little
boy who was behind yelling “wait for me” or words to that effect.  He described
the intersection as kind of a tight one and he watched the boy head towards the
intersection and said that the boy “cut across into the opposing lane”.  Mr. Goulet
said the Mercedes was coming up the street towards the intersection when the
two met.  He described the boys who were ahead as moving quickly, maybe 20-25
KPH, and the small boy following as going about 20 KPH as he approached the
intersection.

[57]        
Mr. Goulet described the intersection as one where you almost had to
be right up to the intersection before you could see cars approaching, and he
blamed that lack of visibility on bushes, the fence and parked cars.

[58]        
He was asked for the approximate location of where the white Mercedes
was at the very moment of impact which he marked on Exhibit 12, an aerial
photograph of the scene.  He marked his view of the location of the front of
the Mercedes at the time of the collision with the young cyclist.  He estimated
the speed of the Mercedes at the time of impact to be around 10 KPH, maybe a
little more.  As he testified, the car was visibly slowing down before the
impact; almost stopped.  He described the bicycle hitting the middle of the
front of the car and that the front tire and the rest of the bike slid onto the
front of the car, the bike fell over and the boy made contact with the
pavement.  He describes a woman coming to the boy’s side saying she was a
nurse.

[59]        
In short, the evidence of Mr. Goulet was that the collision
occurred outside the intersection in the defendant driver’s lane, after the
plaintiff cut the corner and before the defendant reached the intersection.

[60]        
Mr. Murphy advanced a strong challenge to the credibility and
reliability of Mr. Goulet’s evidence.  He suggested that Mr. Goulet
was inaccurate regarding his evidence of the layout at the rear of the property
on the north of Library Road.  He also suggested that Mr. Goulet was
partisan and saw himself as a witness for the defendant; that Mr. Goulet has
suffered medical problems affecting his ability to sleep, and, logically, his memory;
that there were significant differences from a prior statement that Mr. Goulet
had given about the accident; that Mr. Goulet admitted to not doing his
best to give an accurate statement to ICBC; and that Mr. Goulet’s explanation
of an obstructed view of the defendant’s vehicle as it approached the
intersection was illogical and unreliable.

[61]        
I have taken these submissions into consideration in assessing Mr. Goulet’s
credibility.

[62]        
I find that it was not shown that Mr. Goulet had a medical
condition that affected his ability to recall and describe the circumstances of
the accident.  I do not find him to be a witness biased in favour of the
defence.  He testified that he did not have an “axe to grind” for anyone in
this litigation and that statement in the circumstances appeared to be genuine. 
Mr. Goulet did not testify at the first trial and was located by defence
counsel only a short time before the trial.  He was cross-examined closely on his
reasons for not returning calls from the plaintiff’s counsel and he said that he
simply did not.  He said that he had offered to answer questions in writing but
no written questions were provided by the plaintiff’s counsel.  I have carefully
reviewed his evidence and do not find him to be biased.  It was not shown that
he knew the parties or had any reason to prefer any party or for the litigation
to have any particular result.

[63]        
Further, I do not find his evidence in court to be significantly
different from his September 27, 1995 statement, as suggested by Mr. Murphy. 
I understood his comment about not doing his best to give an accurate statement
to be explained by the comment that he was pre-occupied with his move at the
time, not that he was indifferent to or careless with the truth.

[64]        
In assessing his evidence, I have taken into account the fact that his
recollection of the location and the amount of space behind the parking spaces appears
to be inaccurate in the sense that there was, I have found, enough space behind
the parking spaces for a vehicle to back up without entering the southbound
lane of the north-south road.  I have also taken into consideration that on
cross-examination he suggested that the vehicle stopped some distance short of
the intersection and did not enter the intersection.

[65]        
Finally, notwithstanding that the witness may have been inaccurate about
the distance behind the parking stall, I do not find that his explanation that
his view of the Mercedes was obstructed after it turned into the north-south road
was necessarily incorrect, as parked cars may have obstructed that view from
where the witness said that he was standing.  Mr. Goulet, I find, was in a
good position to see this accident; the voices of the boys caught his attention
and he observed the collision. 

[66]        
Other relevant circumstantial evidence of where the collision occurred
is where the vehicle stopped after the collision.  The evidence of the police
officer and Ms. Nichols is that the car stopped in the intersection. 
However, the evidence, I find, is imprecise.  It is also clear that the car was
moving on impact and moved some distance after the collision.  The distance it
travelled would depend on the speed of the car and the reaction time of the
defendant in applying his brakes.  The evidence indicates the defendant did not
see the plaintiff before the collision and therefore, depending on his speed,
would have travelled some distance before coming to rest.

[67]        
Based on all of the evidence, has the plaintiff established that the
accident occurred in the intersection?  I have taken into consideration all of
the evidence, including the evidence of Mr. Goulet, the evidence of
Patrick McIlvenna, the evidence of the expert witness Mr. Rempel, the
evidence of Ms. Nichols as to the location of the car after the collision, 
the sketch done by the police officer, and the sketch done by Mr. Viebig.

[68]        
The plaintiff’s counsel asked that I draw an adverse inference from the
fact that the defendant did not call Mr. Viebig himself to testify at the
trial.  The plaintiff said that while the medical evidence may have shown that
the defendant could not travel, he could have given evidence by video
conferencing and the inference Mr. Murphy seeks is that his evidence would
not have assisted the defendant.

[69]        
The defendant seeks an adverse inference with respect to the plaintiff’s
failure to call the plaintiff himself and his father.  The defendant submits
that the plaintiff has some recollection of the accident, given the discovery
evidence that was read in.  However, it is clear from the discovery that was
read in and the defendant’s opening, that the plaintiff has little recollection
of the accident.  In terms of the plaintiff’s father, because he attended the
accident scene, the defendant says that I should draw an adverse inference from
his failure to testify at trial about the location of the car when it came to
rest after the collision.

[70]        
The law with respect to adverse inferences in civil cases when witnesses
are not called is summarized in Halsbury’s Laws of Canada [Civil
Procedure II, 1^st ed (Markham: LexisNexis, 2008) at para 228;
Evidence, 1^st ed (Markham: LexisNexis 2010), at para 14] under both Civil
Procedure, and Evidence headings, respectively, as follows:

It is highly unusual for a party not to testify in a civil
trial. The court may draw an adverse
inference from the fact that a party fails to testify, provided that it is
reasonable in the circumstances to do so. In order for an adverse inference to
be drawn, there must be a dispute as to those facts concerning which the party
would be competent to testify. Furthermore, if the plaintiff has failed to
establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not
testify. Nor is a party required to testify to rebut allegations that are
plainly absurd. More generally, an adverse
inference will not be drawn where the effect of drawing such an inference is to
reverse the onus of proof.

…

There is no obligation on any party to call any particular
witnesses. However, the trier of fact may draw an adverse inference from a
party’s failure to call a witness whose testimony would be expected to assist
the party’s case.

[71]        
Similarly, the Canadian Encyclopedic Digest, CED (West. 4^th),
vol 26, title 61, describes when an adverse inference should be drawn, and in
particular, what exactly the inference is that is drawn (at ss. 199 -200):

§199 While the parties to a civil action have complete
discretion regarding which witnesses to call, there are dangers in not
advancing certain testimony.  Where the plaintiff chooses not to tender
important witnesses, it may result in a failure to meet the burden of proof. In
a significant early decision, the Supreme Court indicated that the failure to
call a witness with potentially important evidence to a party’s case was
grounds for the trier of fact to presume that the evidence would have been
adverse in nature.  For a time, it was generally accepted that this judgment
mandated an adverse inference to be drawn in any case where a party failed to
call a particular witness who might have had facts bearing on the case.

…

§200 More
recently, the courts have qualified this approach, recognizing that an adverse
inference should not arise in every case where a party failed to call a witness
with evidence material to its case.  Advances in disclosure and exchange of
documents between parties mean that both sides now have equal access to
information, and can call witnesses who might assist them. Today, the
adverse inference is discretionary, and should not be drawn unless it is
warranted in all the circumstances. In particular, the judge should consider
whether: there is a legitimate explanation for failing to call the witness; the
witness is within the exclusive control of the party or is equally available to
both parties; and the witness has key evidence to provide or is the best person
to provide the evidence in question. In a case before a jury, the trial
judge should charge the jury that it is appropriate to infer that a failure to
call material evidence uniquely available to a party was an indication that
such evidence would not have been favourable to that party, but that jurors are
not obliged to draw such an inference.

[Emphasis
added]

[72]        
In Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC
762, the Court analysed a situation involving adverse inferences regarding
medical evidence.  At paras. 118-119 of the decision, the Court outlined
the inference it was asked to draw by the defendants, and went on to analyse
whether drawing such an inference was warranted on the facts of the case:

The defendants invite the court to draw an adverse inference
from the failure of the plaintiff to call Dr. Heran, the neurosurgeon who
operated on Mr. Bouchard in December 2008.  The defendants submit that Dr. Heran
was in the best position to provide opinion evidence concerning the extent of
the degeneration of the plaintiff’s lumbar spine, and an opinion on the issues
of causation and future treatment.  They say that the court should infer from
the plaintiff’s failure to call Dr. Heran that his evidence would have
been a detriment to Mr. Bouchard’s case.

In Buksh v. Miles, 2008 BCCA 318 at paras. 31-33
and 35, Saunders J.A., for the Court, discussed the factors the court should
consider in determining whether an adverse inference may reasonably be drawn
from the failure of a party to call a medical witness:

[31] The general proposition long applied in British
Columbia, stated by Mr. Justice Davey in Barker v. McQuahe (1964),
49 W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant may be
drawn if, without sufficient explanation, that litigant fails to call a witness
who might be expected to give supporting evidence. Further, said Mr. Justice
Davey at 689, a plaintiff seeking damages for personal injuries "ought to
call all doctors who attended him in respect of any important aspect of the
matters that are in dispute, or explain why he does not do so".

[32] It seems to me that the tactic of asking for an adverse
inference is much over-used in today’s legal environment, and requires, at the
least, a threshold examination by the trial judge before such an instruction is
given to the jury.

…

[35] In this environment, and bearing in mind the position
of a lawyer bound to be truthful to the court, it seems to me there is a threshold
question that must be addressed before the instruction on adverse inferences is
given to the jury: whether, given the evidence before the court, given the
explanations proffered for not calling the witness, given the nature of the
evidence that could be provided by the witness, given the extent of disclosure
of that physician’s clinical notes, and given the circumstances of the trial
(e.g., an initial agreement to introduce clinical records that work contrary to
the inference, or incorporation of that witness’s views or observations in the
report of a witness called by the other side) a juror could reasonably draw the
inference that the witness not called would have given evidence detrimental to
the party’s case.

[Emphasis
added]

[73]        
The Court applied the criteria outlined in the above excerpts to the
facts of the case and found that because the plaintiff had disclosed all of the
consultation reports from the doctor that wasn’t called as a witness, because
the defendant could have called the doctor as a witness, and because the
plaintiff had provided other medical evidence, an adverse inference was not
warranted.

[74]        
In the case at bar, I have concluded that in the circumstances, I will
not draw an adverse inference from the failure of the plaintiff to call either
the plaintiff or his father or by the defendant failing to call the defendant
himself.  In the case of the plaintiff, he was subject to discovery and was
examined and I was advised that the plaintiff does not recall much of the
accident.  In the case of the father, the adverse inference sought related to
the fact that he could give evidence on the location of the vehicle at rest. 
Given that the father attended at the scene after being brought there by the
plaintiff’s brother, and that (as the evidence shows) he was upset, I doubt his
attention was focused on the precise location of the car and I decline to draw
an adverse inference against the defendant on this point.  In terms of the
defendant, there was a good explanation given his age and his medical condition
for his non-attendance at trial.  Moreover, although it is possible, and
becoming more common, to have witnesses testify by video, I think that to draw
an adverse inference here, where I find the plaintiff has not advanced a prima
facie case that the accident occurred in the intersection, would be to
effectively reverse the burden of proof.

[75]        
Having considered and weighed all of the evidence, I agree with counsel
for the defendant that the plaintiff has not proven that the collision occurred
in the intersection.

[76]        
There was evidence of the vehicle coming to rest at some point in
the intersection.  That evidence I found to be imprecise, but more importantly,
given all the evidence, the fact that the vehicle was stopped some distance
into the intersection does not mean that the collision occurred in the
intersection.  The evidence is clear that Mr. Viebig’s vehicle was moving
at the time of the collision, and I accept that he did not see the plaintiff. 
After he collided, his vehicle continued to move, which I think is consistent
with the scratch marks on the ground; probably caused by the bike being dragged. 
That indicates that the car may have moved a car length after the mark started
to be made, perhaps more or less.  The distance that Mr. Viebig
travelled depended on his reaction and braking time, as well as the precise
speed he was travelling at.  However, as revealed by the evidence of Mr. Rempel,
the physical evidence in his opinion does not contradict the suggestion that
the accident occurred outside the intersection in the southbound lane of the north-south
road.  In fact, I find that the accident occurred at a location that was
described by Mr. Goulet, whose evidence I found reliable, as follows:

… the
intersection is kind of a tight one, and I just watched him head towards the
intersection and then [the plaintiff] ‑‑ he cut across
before he ‑‑ because he came to the intersection he cut
across to head into ‑‑ into the opposing lane, that is
the west north corner and that’s when their (sic) Mercedes was coming up
the ‑‑ up the street heading towards the intersection and
the two of them met.

[77]        
The space behind the last parking stall at the northwest corner of the
intersection provided room for a bicycle to make a sharp turn and cross into
the southbound lane, and I find that is what happened in this case.

[78]        
Accordingly, I find on all of the evidence that the collision occurred
outside the intersection when the plaintiff cut the corner and collided with
the defendant in the defendant’s lane before the defendant reached the
intersection.

[79]        
Because I have found that the accident occurred outside of the
intersection, it is not necessary for me to address the legal arguments
relating to right-of-way at an uncontrolled intersection, as the defendant
driver in this case clearly had the right-of-way in his own lane prior to
entering the intersection.

[80]        
However, even though the defendant driver can be said to have the right-of-way
in his own lane, it is still necessary to analyse whether he was exercising
reasonable care when driving, particularly considering the presence of children
in the area.

2. OBLIGATION TO TAKE SPECIAL CARE GIVEN THE PRESENCE OF
CHILDREN AND A FAILURE TO KEEP A PROPER LOOKOUT

[81]        
As a further and alternative basis for finding the defendant negligent
in causing the accident, the plaintiff’s counsel argues that the defendant
“should not have been surprised by the presence of the plaintiff” in or around the
intersection, and should have “approached the intersection with the utmost
caution”, given the presence of children in the area.  It is the position of
the plaintiff that the defendant failed to take proper precautions while
driving in the presence of children and was therefore negligent in colliding
with the plaintiff.

[82]        
The plaintiff submits that pursuant to s. 183(c) of the Motor
Vehicle Act, when drivers are in an area where they know or ought to know
children are present, greater vigilance is required.  In the circumstances of
the case at bar, the plaintiff’s counsel says that the defendant failed to keep
a proper lookout, and breached his statutory duty under this provision.

[83]        
The plaintiff says that the defendant unquestionably knew of the
increased risk posed by children in the area because moments before the
accident, two boys were chasing each other down the road on their bicycles and passed
close to his vehicle.  The plaintiff points out that the accident occurred at
3:45 p.m., at a mall, and there were three or four schools within a close range
of the mall.

[84]        
Although Ms. Nichols gave evidence that the defendant was traveling
10-15 MPH, the plaintiff says that it was far too fast in the circumstances.

[85]        
The plaintiff argues that the infant plaintiff on his bike came from the
defendant’s right and was “there to be seen”.  It is in this respect that the
plaintiff relies on new evidence that was introduced under an order that I made
following final argument that the case could be reopened.

[86]        
While Ms. Wright acknowledges that there is a duty on the defendant
to exercise extra care, she submits that the defendant was already doing it by
driving at a speed commensurate with extreme care.  Ms. Wright argues that
a significant difficulty with the plaintiff’s case is that he has failed to
demonstrate that had the defendant exercised greater care, he would have
avoided the accident.

[87]        
Section 183 of the Motor Vehicle Act (now s. 181) reads:

Notwithstanding sections 180, 181 and 182, a driver of a
vehicle shall

…

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

[88]        
In Chen (Litigation guardian of) v. Beltran, 2010 BCSC 302, Mr. Justice
Greyell commented on the appropriate application of the law of negligence in a
situation involving children. At paras. 25-26, Greyell, J. stated:

The law to be applied in determining the duty of a driver
when there are children in or about the area was set out by Hood J. in Bourne
(Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R.
(3d) 63 (S.C.) at paras. 55 and 56:

55   In my opinion, once the presence of a child or children
on a road is known, or should have been known, to the driver of a vehicle
proceeding through a residential area where children live, that driver must
take special precautions for the safety of the child or children seen, and any
other child or children yet unseen whose possible appearance or entrance onto
the road is reasonably foreseeable.  The precautions include keeping a sharp
look out, perhaps sounding the horn, but more importantly, immediately reducing
the speed of the vehicle so as to be able to take evasive actions if required.

… The above standard of care has been followed in numerous
subsequent decisions: see for example, Hixon (Guardian ad litem of) v.
Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007
BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[89]        
Further, in Chohan v Wayenberg (1990), 67 D.L.R. (4^th)
318 (B.C.C.A.) Taylor J.A. stated:

There is, of course, a need for constant vigilance for
children on the roads, especially in suburban areas, for the very reason that
they can not be expected always to act with the same care that is expected of
adults.

Once observed in a dangerous
situation, children must be given special attention, so that any precautionary
or evasive action indicated will be taken in time.

[90]        
Considering the presence of children in the area, did the defendant fail
to exercise the reasonable care that is required and did that lack of care
cause injury to the plaintiff?

[91]        
The evidence is that the accident occurred near a residential area that
backed on to the mall.  The defendant had seen boys go by on their bikes.  Much
of the evidence concerning the situation at the scene that day (other than the
evidence of May Nichols, Paul Goulet and Patrick McIlvenna) was from evidence
read-in from the defendant’s examination for discovery.  Some of that evidence included
the following answers of the defendant from the discovery:

110

Q         As you approached the location where the
accident occurred, did you see some boys on bicycles?

A          There was so many people.  It was rush hour. 
You couldn’t see them, only when they were quite close.  It’s a road for cars
and not for playing, for children.

…

115

Q         Where did they come from and where did they go
to?

A          They came down this rather steep road.  Here
there are living houses, apartments, here, built up, new ones.

…

120

Q         Where did the two boys on the bicycles 
these are the two older boys    come from?

A          They were chasing each other down the road.

121

Q         Did they come down the road that leads from
the housing area down to the library?

A          Exactly, yes.

122

Q         When they drove down that road, and this is
the two older boys on the bicycle, and they reached the bottom of that road,
where did they go?

A          I didn’t pay much attention to the boys.  I
was looking for a parking spot.

…

125

Q         Mr. Viebig, I think you said a moment ago
that the boys were chasing one another.

A          Yes, obviously.

126

Q         What made you think that?

A          Because they were cycling not very
concentrated and they were screaming; because they didn’t pay any attention to
the pedestrians, they were just trying to avoid them.

127

Q         Where were the pedestrians?

A          They were everywhere there.  There were no
pedestrian sidewalks.

128

Q         How close did your car come to either of those
older boys on the bicycles?

A          I don’t know.  They were rather close, but
they were able to at least cut the corner.

…

132

Q         How close was the little boy on the bicycle to
the two older boys on the bicycles?

A          These are questions…He was following them
and I don’t know if there were three, four, or five bicycle lengths in between
them.

…

136

Q         Did you see him at any point before he entered
into the path of your vehicle?

A          No.

137

Q         Is there anything that prevented you from
seeing him sooner than that?

A          He was shorter than all the people that were
walking around.

146

Q         Did you see the little boy before he collided
with your car?

A          No.  I thought those two boys were …
that were chasing each other, those were the only ones.

147

Q         So I take it from that that you would have
discovered the accident happening because you heard a bump or [you] heard some
felt a collision.

A          This is generally
the case, yes.

[92]        
The best evidence, I find, of the manner in which the defendant was
driving, came from May Nichols who was following the defendant’s car two vehicles
behind.  She testified that the defendant’s vehicle was driving the same as the
two vehicles in front of her, and she said that “all three vehicles were
driving slowly and carefully”, and estimated the speed of the vehicles to be “ten
to 15 miles an hour”.

[93]        
On cross-examination Ms. Nichols said that she thought that “the
speed that [she was] going at was a speed that was showing extreme care for
other users of the roadway” as well as “pedestrians and cyclists, that sort of
thing”.  As I mentioned earlier, when asked to describe the speed of the cars, she
agreed that “inching along”, although not her term, would be a fair
description.

[94]        
Following the hearing of the evidence at trial and after argument, the
plaintiff applied to reopen his case and on August 4, 2011 the trial was
reopened.  The plaintiff filed certain medical reports including the April 12,
2011 report of Dr. Jason Barton and the May 30, 2011 report of Dr. Catherine
Paton.  Dr. Barton is a neurologist and neuro-ophthalmologist, and Dr. Paton
is a clinical ophthalmologist.  The evidence on the reopened trial indicates
that at the time of the accident on September 14, 1995, Mr. Viebig was
suffering from optic atrophy and epiretinal membrane in his right eye.  He had
been examined by an optometrist on November 17, 1993, and on September 27, 1994
had complained of delays in his ability to readjust to changing light
conditions and difficulties in focussing.  Dr. Lindley re-examined Mr. Viebig
on November 15, 1994 and concluded he probably had prior ischemic optic
neuropathy and epiretinal membrane causing metamophopsia.

[95]        
The plaintiff asserts that the accident occurred within three months of
the defendant having been seen by an ophthalmologist with complaints of “very
poor vision” in his right eye.  The plaintiff asserts that he obtained an order
for production of the records at issue on June 28, 2010, before the trial (just
over two months prior to the trial), and because of the defendant’s failure to
produce them in a timely manner and before the trial the plaintiff was deprived
of the opportunity to properly cross-examine the defendant regarding the
defendant’s vision.  In the circumstances, the plaintiff submits that an
adverse inference should be drawn from the defendant’s failure to produce these
documents.

[96]        
The adverse inference sought by the plaintiff is tantamount to an
implied admission that (1) on the day of the accident Mr. Viebig knew
his vision was impaired and (2) Mr. Viebig’s visual impairments
contributed to his failure to see the plaintiff prior to colliding with him. 
Because the plaintiff says its case was prejudiced by the defendant’s failure
to produce relevant records, and their ability to conduct a proper discovery
impaired, the appropriate remedy, they submit, is to draw this adverse
inference.  The plaintiff’s counsel argues that this is a unique situation. 
Although the plaintiff acknowledges, on the reopening application, that the
defendant was unable to testify at trial due to his infirmity, they submit that
on discovery they were unable to challenge his oral evidence and the adverse
inference that ought to be drawn is that he knew his vision was impaired and
that it contributed to his failure to see the plaintiff prior to colliding with
him.

[97]        
The plaintiff argues that although the defendant’s counsel suggested the
failure to see the plaintiff may have been due restrictions on visibility
around the intersection, that is not borne out by the evidence and in fact the
plaintiff was there to be seen.  Given Dr. Barton’s report, the plaintiff
argues that Mr. Viebig was obligated to drive with greater caution knowing
that he had these vision problems; particularly given his knowledge that
children were in and about the mall parking lot, as the general area might be
described.  The plaintiff argues that the defendant ought to have been on the
lookout for additional children rather than continuing to look for a parking
space, and this failure to do so evidenced a lack of reasonable care that
resulted in injury to the plaintiff.

[98]        
The plaintiff says that the evidence about the defendant’s vision
difficulty is simply one further piece of circumstantial evidence which supports
the plaintiff’s case that the defendant was negligent, and that if the defendant
had kept an adequate lookout in the circumstances he would have seen the
plaintiff and slowed down or stopped his vehicle in time.

[99]        
In response to the arguments of the plaintiff, the defendant says that
the adverse inference sought by the plaintiff ought not to be drawn because the
plaintiff would need to satisfy the Court that what the defendant says is the limited
problem with Mr. Viebig’s right eye had something to do with the accident
having happened.

[100]    
In that respect, let me refer to the medical reports that have been
filed.  First, Dr. Barton’s report, where he describes the effect of the
defendant’s visual difficulties.  Although Mr. Viebig was legally able to
drive, the doctor wrote:

In the right eye, the ischemic optic neuropathy resulted in a
region of dense visual loss extending from the normal blind spot in the right
field to the region just below the centre of his vision.  His central visual
acuity was reduced to 20/50 and central colour vision was impaired. …

With both eyes open, it is likely
that he would have had reasonable detection of moving objects in his right
field.  However, if his left eye was closed or obscured for any reason, he
would have had difficulty detecting a moving object within 10 degrees of centre
to left, and within 20 degrees of centre to the right.  … Hence if he was
maintaining stable gaze straight ahead AND with the left eye obscured, he would
have had trouble seeing a small person in front of his car on the right. 
Furthermore, given the central location of his field defect, the problem would
have been worsened rather than improved if he had shifted his gaze to the
right.

[101]    
The plaintiff referred to Dr. Paton’s report, where she was asked (1) to
address whether the defendants ability to have seen the plaintiff on a bicycle
was reduced from that of the average adult male as a result of any medical
condition, and (2) to what extent if any, the condition of his vision
would have affected his ability to see a boy on a bicycle approach from an area
at some distance in front of and to the right of his car.  Dr. Paton wrote
:

In order to arrive in that blind spot the cyclist would need
to have crossed the normal working more peripheral visual field, be completely
below the gaze spot of Mr. Viebig and at such a distance as to be
contained completely in this blind spot.  A moving cyclist would not remain
hidden in this spot, and could not reach this spot without crossing normal
field.  With the left eye covered, if Mr. Viebig looked to the right he
could temporarily place an object in his blind spot but if it were moving it
would progress out of this area.  With both eyes open, there is no blind spot.

Mr. Viebig’s acuteness of vision (ability to see small
objects) with his right eye alone was near normal.

The optic atrophy in the right eye created a
"desaturated" vision, with reduced colour vision and an afferent
defect.  This effect can best be described as some reduction in the
transmission of vision, but with the acuity of 20/25 to 20/30 this still
represents good vision, and is adequate for driving.  With both eyes open this
would not be detectable.

Mr. Viebig had a change in
late 1993 in his vision that had been investigated, documented and was stable,
and of which he would be completely aware by the time of the accident in September
1995.  In normal driving circumstances with both eyes open and at the speeds
typical for a parking lot, with the lines of travel indicated above, Mr. Viebig’s
vision did not play a role in the accident.

[102]     Although Dr. Paton’s
opinion is admissible for her medical opinions on the effect of Mr. Viebig’s
eye condition on his ability to see objects on his right while he was driving,
I think that the final sentence quoted above should be given little weight as
it is one of the questions that I must decide in this litigation. 
Nevertheless, the balance of the opinions in her report, and her observations
on the extent of any visual difficulty Mr. Viebig suffered, are
admissible.

[103]     The
defendant’s counsel says that the plaintiff is asking the Court to speculate on
a balance of probabilities that the defendant’s discrete vision condition
contributed to the occurrence of the accident.  The defendant says that the
evidence does not come close to proving this.

[104]     The
defendant says that the plaintiff’s expert witness, Mr. Rempel, acknowledged
in cross-examination that he did not provide any information in his report
about the perception and reaction times that must be taken into consideration
when determining whether a driver had time to perceive, react to, and avoid the
plaintiff from the point in time the plaintiff reasonably would have been
visible to a driver in Mr. Viebig’s position.  These factors, the
defendant says, are important to the analysis of the new evidence because the plaintiff
must still show that even if this discrete vision problem contributed to the
accident, that without the problem, or exhibiting greater care because of the
vision problem, the defendant would have had time to perceive, react to, and
avoid the collision.

[105]     In the
result, the defendant argues that even with the new evidence, the plaintiff has
still failed to prove on a balance of probabilities that the defendant was
negligent and that this negligence was causative of the accident.

[106]     The
plaintiff must prove that the defendant was negligent and that the negligence
caused the damage.  The defendant argues that the plaintiff has not established
either.

[107]     Was the
defendant exercising reasonable care given the presence of children in the
area?  The defendant’s counsel reiterates Ms. Nichols’ evidence that the
cars were proceeding at a speed “commensurate with extreme caution”.  She used
the phrase being mindful of cyclists and children in the area.  She estimated
the speed at 10-15 MPH.

[108]    
The defendant refers to Christensen (Litigation Guardian of) v.
Gerber, 2007 BCSC 1397 as an example of a scenario in which not seeing
another user of the road was not negligent.  In Christensen, the
defendant driver hit an 11 year old child pedestrian while the child was trying
to cross the road in the middle of a block.  The child may have been following
another child who had crossed the road in front of him.  The defendant had
testified that he did not see either child prior to impact, nor had he noticed
any other pedestrians in the area.  The plaintiff had admitted fault for the
accident, but argued that the defendant was also partially responsible for
failing to see and watch out for the plaintiff.  Counsel for the defendant
referred to paras. 55-56 of the reasons of Madam Justice Neilson (as she
then was), where she analysed the factors relating to whether the defendant was
negligent in not seeing the plaintiff:

The fact that he did not see Joshua, however, is not
conclusive on the issue of negligence.  In Embury v. Vanderryst, [1997]
B.C.J. No. 1427 (QL)(S.C.) at para. 10, Lowry J. as he then was,
stated:

 Certainly, where as here a pedestrian, who does not
have the right of way, ventures on to a street, he and the driver of an
approaching vehicle both bear obligations to avoid an accident.  Each has a
duty to exercise care, and the question of fault where an accident occurs in
consequence of a breach of their duties is to be resolved on the evidence as a
whole: Liston v. Striegler (1996), 25 B.C.L.R. (3d) 57 (B.C.C.A.).  But,
to establish liability, an injured pedestrian must establish a breach of duty
on the part of the driver based on the evidence, and the mere fact that the
driver has not seen the pedestrian before striking him is not, without more,
sufficient to establish an inadequate lookout attributable to the driver: Plett
v. Insurance Corp of British Columbia (1987), 12 B.C.L.R. (2d) 336
(B.C.C.A.).

Turning to whether Joshua was
there to be seen, I find the evidence insufficient to establish the plaintiff’s
theory that Mr. Gerber had 85 metres within which to see Joshua, and seven
to eight seconds within which to take evasive action.  The plaintiff cannot
ignore the balance of the expert evidence in putting forward that proposition. 
Mr. Sdoutz’s assumptions as to the point of impact, Mr. Gerber’s
speed, Joshua’s pre-accident behaviour, and the location of the cars parked on
the south side of 102nd Avenue are fundamental to the plaintiff’s thesis. 
There are, however, significant uncertainties in each of those assumptions that
fatally undermine the view that Joshua could have been seen in time for Mr. Gerber
to take evasive action.

[109]    
The defendant argues that the case at bar is similar to Christensen,
which was dismissed because the plaintiff failed to prove the accident occurred
in a manner that established that the defendant was negligent.  Neilson J.
wrote, at paras. 65-66:

Faced with varying assumptions and theories of liability in
this case, I find the comments of Braidwood J.A. in Fenton (Guardian ad
litem of) v. Baldo, 2001 BCCA 95 apposite.  That case bears some
similarities to this.  The 12-year-old plaintiff ran into a roadway and was
struck by a van driven by the defendant.  The issue, as here, was whether the
defendant had sufficient distance to avoid the collision when he saw the boy. 
Expert evidence from an engineer indicated that this critical distance could
have varied depending on the assumptions made.  In reviewing the expert
evidence, Braidwood J.A. concluded at paras. 35-36:

35 As can be seen from the chart, the evidence relating to
this crucial distance varies from 9.1 to 38.4 metres. Accordingly, there is
evidence that he could not have avoided the accident and there is evidence that
he could have avoided the accident. There is no evidence as to which of these
two alternatives is the correct one.

36 I am of the opinion that by a proper application of the
principles concerning a no-evidence motion, that if one concludes that there is
no evidence to be found to support which of two propositions is the correct
one, then there is no evidence that is fit to go to the jury.

I am unable to find that Mr. Gerber
was at fault in the accident.  The action must accordingly be dismissed.

[110]     While not
disagreeing with the principles enunciated in Christensen, the plaintiff
says that it is a factual determination in any given case whether a driver exercising
reasonable care ought to have seen a pedestrian.

[111]    
The plaintiff argues that the evidence in this case is that the three or
four parking stalls were further from the library than the defendant recalls
and sight lines which were not available to the defendant in the Christensen
case were available to Mr. Viebig in the case at bar.  The plaintiff
says that I should conclude that the plaintiff was there to be seen and it is a
fair inference in the matter at hand that Mr. Viebig was not keeping an
adequate lookout.  The fact that his vision was compromised only added to Mr. Viebig’s
responsibility to exercise reasonable caution.  The plaintiff argues that Mr. Viebig
knew there were children in the area and should have seen the plaintiff and
yielded, but that instead, he proceeded into the intersection, dragging the
bike with him.

[112]    
The defendant says that a distinction must be drawn between fair
inference and conjecture, the latter not being permitted.  In this respect, the
defendant refers to a decision of Tysoe J.A., in Haase v. Pedro (1970),
21 B.C.L.R. (2d) 273 (C.A.) (at para. 56):

I have not been able to find in
the evidence the proven facts that establish directly or by proper inference
that the appellant could and should have seen the respondent’s car out of
control and creating a danger at such a sufficiently greater distance away that
he, the appellant, had the necessary time and ability to take effective
preventative action.

See also Kerr (Litigation Guardian of) v. Creighton,
2008 BCCA 75.

[113]     The
defendant argues that the medical evidence and new opinions do not assist in
overcoming the conclusion that the plaintiff failed to provide reliable
evidence that he did not ride his bicycle on the wrong side of the road into
the front of the defendant’s car before it reached the intersection.

Discussion

[114]     Upon a
consideration of all of the evidence, I find that the plaintiff has not
demonstrated that on the day of the accident the defendant failed to exercise
the reasonable care that he was required by law to exercise.  I accept that
there were children who had ridden their bikes past the defendant and he was
under an additional duty to use care because children might be in the area and
present an additional danger.  However, I accept the evidence of Ms. Nichols
(that was essentially unchallenged) that the cars were driving at a speed which
showed extreme caution in the circumstances. That evidence is not inconsistent
with Mr. Goulet’s evidence of the speed of the defendant’s vehicle.

[115]     I do not
draw an adverse inference against the defendant for the failure to produce
earlier the documents.  They were produced, but more importantly there was expert
evidence on the extent of Mr. Viebig’s eyesight condition and its possible
impact on his ability to see a child on a bicycle approaching from the right is
before the Court.  The effect of the medical evidence was that Mr. Viebig
did not have a condition that prevented him from seeing objects like a cyclist,
moving from the right to left of his field of vision.

[116]     In this
case, not only has it not been established that the defendant was negligent in
the manner in which he was driving and keeping a lookout but it has not been
established that had he exercised greater care that he would have been able to
avoid the collision.

[117]     In Brewster
(Guardian ad litem of) v. Swain, 2007 BCCA 347, the defendant was found not
to have exercised reasonable care because she failed to see the plaintiff
approaching the intersection, but she was not held responsible for the accident
because it was found that even if she had seen the child, she would have had
insufficient opportunity to avoid the accident.

[118]    
In Brewster, the plaintiff was a four-year-old child who rode
through a stop sign and into the side of a bus driven by the defendant bus
driver.  The Court held that because the defendant was aware of the presence of
children in the area, because she never saw the infant plaintiff on his
bicycle, and despite the fact that she clearly had the right-of-way, she was
rightly found by the trial judge to have breached her duty of care to the
plaintiff.  At paras. 20-21 the Court outlined the negligence of the
defendant:

The negligence of Ms. Swain consists of failing to
see the infant respondent as he approached the intersection.  She did not
have to constantly watch the intersecting street simply because she was aware
that there were children on it.  As stated above, her duty to drive safely also
involved (and arguably to a greater extent) being on the lookout for movement
of vehicles and pedestrians on the street on which she was travelling.  Although
she should have been more aware of the children on the side street after her
first sighting of them, she did not have to be prepared to attempt avoiding
action from the moment she saw them.  As was said by Lord Atkinson in Toronto
R.W. Co. v. King, [1908] A.C. 260 at p. 269 and quoted in the
oft-cited decision of Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.):

Traffic in the streets would be
impossible if the driver of each vehicle did not proceed more or less upon the
assumption that the drivers of all the other vehicles will do what it is their
duty to do, namely, observe the rules regulating the traffic of the streets.

This basic principle is tempered in cases in which there is a
need for extra care because of the presence of children on or near the road.  But
when Ms. Swain saw the infant respondent and the other children there was
no need for her to anticipate that one of them might ride through the stop sign
or was in any way at risk from the bus. It was not until the bus was closer
to the intersection, at a point not determinable on the evidence, that she
should have recognized that the unexpected was perhaps about to happen.

[Emphasis
added]

[119]    
However, although they recognized her negligence, the Court reversed the
decision of the trial judge to find the defendant liable.  This was due to the
fact that the trial judge did not properly deal with the issue of causation. 
At para. 9 of the decision, the Court remarked:

Earlier in the judgment (at para. 24)
the trial judge identified the causation issue by correctly stating that it
must be shown that a driver having the right-of-way, after she should have
become aware of the failure of the other party to obey the law (in this case
the child on the bicycle approaching the stop sign) "had sufficient
opportunity to avoid the accident".  However, the judge did not return to
that issue.  After finding Ms. Swain to have been negligent and then
finding the mother to also have been negligent, all that the judge said further
about Ms. Swain’s driving was that she failed "to keep an eye on the
children, particularly the plaintiff, who was there to be seen, so she could
react in some manner to whatever might occur" (para. 35).

[120]    
The Court then went on to explain how the requirement of causation fit
in with a finding of negligence in the case (at paras. 23-24):

I think it is correct to say that, although extra precaution
is required when a child is seen to be in a dangerous position, it must
still be shown that the driver in the dominant position could have avoided the
collision.

It is not
possible to determine on the evidence how close to the intersection the bus was
when the driver should have become aware that the situation was dangerous
because of the possibility that the child might enter the intersection without
stopping.  The bus was a large vehicle.  It appears from the whole of the
evidence that an impact with the bicycle was unavoidable regardless of
evasive action the driver might have taken. At the very least, the
respondents have not proven that the driver would have had time to take
effective evasive action had she seen the child on the bicycle when the
situation was recognizable as being dangerous.

[Emphasis
added]

[121]     I conclude
that in the circumstances of this case, notwithstanding the obligation to use
greater care because of the presence of children, the plaintiff has not
established that the defendant did not exercise reasonable care.  The evidence
establishes, on the contrary, that the accident occurred when the plaintiff cut
the corner into the defendant’s oncoming lane, at a time when the defendant was
driving at a speed commensurate with extreme care.

[122]     Even if I
am wrong, and the defendant’s failure to see the plaintiff supports a
reasonable inference that he was not exercising reasonable care, I am not persuaded
that even if he had been exercising reasonable care, and had seen the plaintiff,
he could have avoided the collision.  I have found that the accident occurred
when the plaintiff collided with the front of the defendant’s vehicle in the
defendant’s lane before the intersection.  While I recognize that there is some
room behind the parked car, the plaintiff in this case has not proven that the
defendant had time to take evasive action to avoid the collision after the plaintiff
cut the corner.

[123]     Accordingly,
the plaintiff’s claim must be dismissed.

CONTRIBUTORY NEGLIGENCE

[124]     In the
alternative, in the event that I am incorrect and the defendant has been shown
to not exercise reasonable care and that his negligence caused the injury to
the young plaintiff, I will address the argument that the plaintiff was
contributorily negligent.

[125]     The
plaintiff was 6 years 9 months old at the time of the accident.

[126]    
In the foundational case of McEllistrum Estate v. Etches, [1956] S.C.R.
787, the Court stated (at 793):

It should now be laid down that
where the age is not such as to make a discussion of contributory negligence
absurd, it is a question for the jury in each case whether the infant exercised
the care to be expected from a child of like age, intelligence and experience.

[127]     In McEllistrum,
the Court upheld a jury verdict that a 6 year old plaintiff was 70% at fault.

[128]    
Halsbury’s Laws of Canada, Negligence, 1^st ed (Markham:
LexisNexis, 2009) at para 21, speaks about the potential contributory
negligence of a child as follows:

In the first place, it is clear that children of “tender age”
are totally immune from tort liability.  Moreover, “the doctrine of
contributory negligence does not apply to an infant of tender age”.  Thus,
children of two-and-one-half years, three years, four years or five years of
age cannot be held guilty of contributory negligence. No definite line has
been drawn below which this total immunity operates, but it seems to cut off at
a point “where the age is not such as to make a discussion of contributory
negligence absurd”. The complete exemption probably does not extend beyond
five years of age for, according to the Supreme Court of Canada, it was wrong
to say that a child of six could not be guilty of contributory negligence. The
test is not the age of the child, but rather his or her capacity to understand
and appreciate danger.

[Emphasis
added]

[129]    
The defendant referred to in Dao (Public
Trustee of) v. Sabatino (1996), 24 B.C.L.R. (3d) 29 (C.A.), where the
majority of the Court of Appeal attributed 50% contributory negligence to a six
year old plaintiff who was struck by a car in an intersection while accompanied
by his ten year old sister.  The majority rejected the plaintiff’s argument
that he could bear no legal fault because of his age on the following basis (at
para. 50):

I am unable to agree with Mr. Murphy’s
argument for the plaintiff that the plaintiff’s mistake in suddenly running
when his sister told him to hurry up was not in all the circumstances
sufficient to fix him with any fault.  The plaintiff was told at home and
school how to cross safely and he was old enough to understand.  That being so,
I think that the plaintiff must accept some blame when in catching up with his
sister he passed her and ran into the path of Mr. Sabatino’s car without
looking.  This was more than just a momentary lapse of judgment.

[130]     The
questions are: whether the child had the capacity to be negligent by the
application of the test in McEllistrum; was the child negligent measured
against the conduct of a reasonable child of the same age and in the same
circumstances; and what apportionment should follow the attribution of fault
for that negligence (Ottosen v. Kasper (1986), 37 C.C.L.T. 270
(B.C.C.A.)).

[131]     Much of
the evidence about the ability of the young plaintiff to understand and
appreciate danger in the circumstances and what level of care is to be expected
from a child of like age, intelligence and experience, came from the
cross-examination of the plaintiff’s mother.

[132]     The
plaintiff had ridden a tricycle at age 2, and was taught about road safety by
his parents from that time.  He was taught to watch for cars at an intersecting
roadway, and never to enter when there was a car immediately around him.  He
was taught that he was supposed to ride his bicycle on the sidewalk.  The
plaintiff was described by his mother as of average intelligence and she
thought he had a fairly decent understanding of road safety.  He had ridden a bicycle
since he was about 4 or 5 years old.  He had been taught when riding his bike
at an intersection to proceed only after checking to see if there was no
traffic. In his mother’s company, his mother observed her son
stopping at intersections to check for traffic and make sure there were not
cars coming out of driveways.  She said she never observed him disobeying these
rules.  It appears that the plaintiff’s parents were careful to instill the
rules of the road in their son given their proximity to busy streets and their
sons’ use of their bikes.  Both the plaintiff and his older brother knew the
rules of the road, as they applied to bikes and cars at intersections. 

[133]     In the
case at bar, the plaintiff, I find, was well versed in the rules of the road for
a boy of his age, and understood that when he got to the T-intersection he
ought to have slowed down to ensure he could turn without danger.  He did not
do so.  I conclude that in the circumstances he was probably distracted by his
desire to keep up with his older brother, and in being so caught up he failed
to pay heed to the rules of the road of which he was aware.

[134]     Although
the plaintiff was distracted by the fact that his brother was ahead and he
wanted to keep up with him, he nevertheless understood the rules of the road
and the fact that he was at an intersection where there were vehicles, and he
had to be careful of other vehicles.  Even though the plaintiff was aware of
the requirement to exercise care and slow down at an intersection, he overlooked
that in order to catch up with his older brother.  I think that in the
circumstances, if the defendant is negligent, that the plaintiff must nevertheless
accept some fault for cutting the corner and riding in the oncoming lane.

[135]     In the
circumstances, if I had found the defendant to be negligent and that his
negligence caused the collision, which I have not, I would apportion fault to
the defendant at 60% and to the plaintiff at 40%.

CONCLUSION

[136]     Accordingly,
for these reasons the plaintiff’s claim is dismissed.

“The Honourable Mr. Justice J.S. Sigurdson”