IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120523

Docket: 10 3798

Registry:
Victoria

Between:

Carol Murdoch

Plaintiff

And

Benjamin Biggers
and Jennifer Robyn Biggers

Defendants

Before:
The Honourable Madam Justice J.A. Power

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ms. Murdoch (a pedestrian), was injured when she was
struck by the defendant’s 2003 Honda CRV. She alleges she was walking or
running, she can’t remember which, across Blanshard Street, in a marked
crosswalk at the intersection of Blanshard Street and Saanich Road in Victoria,
British Columbia when she was struck. She admits that the vehicles proceeding
southbound on Blanshard Street had the green light, which means that the plaintiff
would have been crossing on a red light for pedestrians.

[2]            
As a result of the collision, the plaintiff suffered a broken right leg.

[3]            
The parties have agreed on the appropriate quantum of damages which are
in the range of $70,000.00 and the only issue before me is liability for the
accident. The plaintiff concedes some contributory negligence, the proportion
of which will depend on my findings of fact. The defendant argues that the plaintiff
is 100% responsible for the accident and the action should be dismissed.

[4]            
The trial proceeded in Victoria over two days. I heard one witness for
the plaintiff, Ms. Murdoch herself, and three witnesses for the defence: the defendant
driver Ms. Biggers and two independent witnesses.

Background Facts

[5]            
The accident took place on September 25, 2008, at approximately 11:40
a.m. at the intersection of Blanshard Street and Saanich Road. This is a high-volume
intersection with traffic on Blanshard Street proceeding one way, south, into
Victoria. This portion of Blanshard Street is the feed from the Pat Bay Highway
(Highway 17) into Victoria, which results in it being a busy intersection at
most times. At the time of the accident, the Uptown Shopping Centre at the
northwest corner of the intersection was under construction. All of the
evidence satisfies me that the intersection was particularly busy on September
25, 2008, at the time of the accident.

[6]            
Pedestrians can cross at all four corners of the intersection. Clearly
marked crosswalk areas and pedestrian cross light standards control pedestrian
movement. Overhead traffic control signals manage southbound traffic proceeding
on Blanshard into Victoria. Traffic standards control the eastbound and westbound
traffic on Saanich Road.

[7]            
Blanshard has five one-way lanes of traffic proceeding into Victoria at
the north side of this intersection: a designated, left-hand turn lane eastbound
onto Saanich Road, a designated, right-hand turn lane westbound onto Saanich
Road, as well as the three southbound lanes into Victoria. By the south side of
the intersection there are three lanes all running south into Victoria. The
accident took place on the south side of Saanich Road, where there are three
vehicle lanes.

[8]            
At the time of the collision, the road was dry and all of the evidence
indicates that it was a fair September day with good visibility.

[9]            
As I have noted, there is no doubt that the plaintiff was proceeding
against a red light for pedestrian traffic and vehicle traffic. The factual
issues in dispute which are important for my determination of liability include
the following:

1)    Was the plaintiff
in the crosswalk between the southwest corner and the southeast corner of
Blanshard Street at the time of the accident, or was she in some other portion
of the roadway?

2)    Had the defendant’s
vehicle stopped for the plaintiff prior to the accident occurring, and then
restarted resulting in the defendant’s vehicle striking the plaintiff?

The plaintiff’s evidence

[10]        
The plaintiff, Ms. Murdoch, is a 53-year-old woman who resides in
Victoria. She is currently unemployed and is designated as a person with a
disability. She has schizophrenia. She lives alone in an apartment and,
although she is on medication for her condition, she testified that the
medication does not impair her judgment. She obtained 12 years of education and
has grade credits indicating that she has completed grade ten.

[11]        
On the day of the accident, Ms. Murdoch had been shopping at the Walmart
Store, which was located in the shopping center at the northwest corner of the
intersection. She was leaving Walmart with a shopping bag and was wearing a
light-blue jacket and blue jeans. She was on her way to meet a friend for
coffee. She was familiar with the intersection, although Walmart was an
infrequent destination for her and it was not a place she had been often.

[12]        
The plaintiff testified that she crossed Saanich Road from a traffic island
located at the northwest corner of the intersection. She recalls running across
Saanich Road from the northwest corner to the southwest corner and stopping at
the southwest corner on a raised portion of the roadway. She cannot recall the
colour of the light as she crossed Saanich Road but, sometime around the time
of her crossing, she noticed her bus proceeding eastward through the
intersection on Saanich Road, which suggests that the light for her would have
been red as she crossed Saanich Road.

[13]        
She admits that traffic was already moving southbound on Blanshard
Street before she stepped off the raised portion of the roadway into the
crosswalk just prior to the accident. She was proceeding from the southwest
corner to the southeast corner crossing Blanshard Street. She could not recall
whether any of the southbound traffic had crossed her path through the
crosswalk as she was crossing. She made it across two lanes of traffic and
reached the line marking the easternmost southbound lane. At that point, she
saw the defendant’s vehicle for the first time. She says that she made eye
contact with the defendant driver Ms. Bigger. She is not sure whether Ms. Biggers’
vehicle was in the crosswalk when the eye contact occurred, but the plaintiff
testified that there was still space in the crosswalk for her to pass and since
the vehicle was stopped, she proceeded. Ms. Biggers’ vehicle proceeded at
the same time. The plaintiff testified that at that point she pivoted to turn
around in order to avoid being struck and she was struck by Ms. Biggers’
car on the right leg. She fell and managed to get to the curb on the southeast
corner of Blanshard Street. Ultimately, an ambulance attended and Ms. Murdoch
was taken to the hospital to deal with injuries to her leg.

Ms. Biggers’ evidence

[14]        
Ms. Biggers was proceeding southbound on Blanshard with her two
young children in her Honda CRV vehicle on the day in question. She had no
previous operational difficulties with the vehicle, including no difficulties
with the braking system.

[15]        
She testified that she was stopped for the red light at the intersection
and that she was in the easternmost southbound lane on Blanshard and was
proceeding into Victoria. There were three or four vehicles in front of her
when she was stopped at the intersection. When the light to proceed southbound
on Blanshard turned green, she moved forward. She proceeded on the slight
incline toward the southern end of the intersection and first saw the plaintiff
running out between two moving vehicles which were to Ms. Biggers’ right.
Ms. Biggers estimates that she was going twenty kilometres per hour when
she first saw the plaintiff. She slammed on her brakes, but the plaintiff kept
running and the vehicle hit the plaintiff on the far left hand side of the
vehicle. The plaintiff continued running, then fell on the grassy boulevard on
the southeast corner. In her evidence, Ms. Biggers stated that at no time
did her vehicle come to a complete stop prior to hitting the plaintiff and that
the impact took place on the south side of the crosswalk. The defendant is
fairly certain the plaintiff was not in the crosswalk when she first saw her
and when the impact occurred. In a statement to the ICBC investigator taken
five days after the accident, she said she “didn’t think” that the plaintiff
was in the crosswalk when the impact occurred. At trial, she acknowledged that
the entire incident from the moment that she first saw the plaintiff until the impact
was “very quick.”

Independent witness Mr. Lukinuk

[16]        
Mr. Lukinuk is an upholsterer who was driving his 1956 Chevy truck
southbound on Blanshard Street. He was in the easternmost southbound lane
proceeding into Victoria and was driving the vehicle immediately ahead of the defendant
Ms. Biggers.

[17]        
He saw the plaintiff standing on the southwest corner of the
intersection but places her on the curb some distance down Blanshard and away
from the pedestrian island. He also says that the plaintiff was wearing dark
clothing at the time.

[18]        
He saw the plaintiff step off the curb and run at a diagonal across the
lanes of traffic and describes her “running like a football player making a
play.” He says that the plaintiff veered to the left sharply as she approached
his vehicle, and she was struck by the vehicle behind him. He saw the plaintiff
being struck from his driver’s side rear view mirror and indicates that she was
not in the crosswalk when she was struck. He indicates that the plaintiff
landed on the grassy portion on the southeast side of the intersection but
places the plaintiff significantly south of the crosswalk.

[19]        
In a statement provided to ICBC on October 30, 2008, Mr. Lukinuk
indicated that if the plaintiff was in the crosswalk at the time of the impact,
“she was barely in it.” He initially provided a drawing of the intersection
that had the plaintiff going directly across the crosswalk and a point of
impact close to or in the crosswalk. But he also provided a revised drawing on
November 4, 2008, that showed her crossing in a diagonal manner and the point
of impact well outside of the crosswalk. In cross-examination, Mr. Lukinuk
indicated that from the time he first saw the plaintiff to the time of impact,
approximately two to three seconds passed.

Independent witness Ms. Larson

[20]        
Ms. Larson is employed as a 911 dispatcher for Saanich municipality
and is very familiar with the intersection. She was southbound on Blanshard
Street at the time of the accident and was in the far right southbound lane on
Blanshard Street. She was stopped for the red light and was three to four
vehicles back when she first saw the plaintiff in the vicinity of the southwest
corner of the intersection. She was quite certain that the plaintiff was on the
triangular pedestrian island when she saw her.

[21]        
As the traffic in Ms. Larson’s lane started moving, she saw the plaintiff
make a run for it from the southwest corner across to the southeast corner of
Blanshard Street and Saanich Road. She could not recall whether any vehicles
had cleared the crosswalk when the plaintiff left the curb. Vehicles in front
of Ms. Larson abruptly stopped and all drivers were evidently slamming on
their vehicles’ brakes. Vehicles in the two westernmost lanes of traffic were
able to stop for the plaintiff. Ms. Larson didn’t see the plaintiff being
struck, but she did see other vehicles’ brake lights going on and it appeared
that the plaintiff had been struck. She couldn’t see the crosswalk clearly, but
she stated the vehicle and the plaintiff were south of the crosswalk at the
time of impact.

Factual Analysis

[22]        
All of the evidence is clear that the actions that gave rise to the
accident took place over a very short period of time, a matter of seconds. As a
result, and in light of the frailties of human observation, there are inconsistencies
with virtually every witness. At the same time, I find that all witnesses were
honest and did their best to provide helpful evidence to the court.

[23]        
I do not find the evidence of Mr. Lukinuk to be helpful in this
case. His evidence is inconsistent with every other witness on where the plaintiff
left the southwest corner of Blanshard Street, and where she fell on the
southeast corner. His evidence is also internally inconsistent considering his
initial drawing for ICBC on October 30, 2008, and his drawing on November 4,
2008, which he adopted in court. He saw the impact out of his vehicle’s driver’s
side rear-view mirror, which compromised his ability to see what happened. He
recalled the plaintiff wearing dark clothing, when she was wearing relatively light
clothing. In all of the circumstances, I am not using Mr. Lukinuk’s
evidence in determining how the accident occurred.

[24]        
The evidence of Ms. Larson supports the version of events provided
by the plaintiff in some significant ways. I find, on the basis of all of the
evidence, the accident probably occurred as follows:

1)    The plaintiff
was running to catch the bus at the bus stop on the southeastern corner of
Saanich Road near Blanshard Street. She was crossing from the southwest corner
of Blanshard to the southeast corner of Blanshard in order to make that bus. She
was on the triangular island and entered the crosswalk from the island. She
hesitated slightly before making the decision to enter the crosswalk. The first
two lanes of traffic were able to stop for the plaintiff, even though she was
crossing against a red light and pedestrian control signal.

2)    There is no
doubt that the plaintiff and Ms. Biggers made eye contact prior to the
impact. However, I do not conclude that Ms. Biggers’ vehicle was stopped
at that point. I accept that the plaintiff thought that Ms. Biggers had
stopped for her and she continued running across the intersection, but in fact,
the evidence supports that Ms. Biggers’ vehicle was still in the process
of stopping and was barely moving at the time of the impact.

3)    The defendant, Ms.
Biggers, and the witness, Ms. Larson, place the point of impact south of
the crosswalk, yet they both place the plaintiff falling on the grassy portion
on the southeast corner of Blanshard, very close to the crosswalk. Ms. Larson
did not have a clear view of the impact since she saw it from behind, and Ms. Biggers
was less certain about whether the impact took place in the crosswalk when she
first gave her statement to ICBC. Accordingly, I am not satisfied that the
impact took place south of the crosswalk.

4)    I accept the
evidence of the plaintiff that she had some room in the crosswalk when she
crossed in front of Ms. Biggers’ car. Therefore the impact would have
taken place just inside or at the southernmost edge of the crosswalk. As a
result of the impact, it is clear that the plaintiff would have rolled or fallen
to the grassy portion of the curb on the southeast portion just outside of the
crosswalk.

5)    The plaintiff
might have pivoted just prior to being struck. In my view, though, nothing
turns on this for the purpose of determining or apportioning liability since it
is not clear how the leg fracture occurred: as a result of the vehicle hitting Ms.
Murdoch, or as a result of her fall to the curb.

Legal Analysis

[25]        
The defendant had a statutory right of way pursuant to the Motor
Vehicle Act, R.S.B.C. 1996, c. 318, s. 127 (“MVA”), since she was
proceeding on a green light.

[26]        
The plaintiff, on the other hand, breached a number of statutory duties
under the MVA including:

1)    obeying traffic
controls (s. 125),

2)    obeying the
instructions of the applicable device (Red light, s.129(4)(a))–“a pedestrian
facing a red light must not enter the roadway unless instructed that he may do
so by a traffic control signal”–and

3)    obeying pedestrian
controls (s. 132), against which the plaintiff proceeded.

[27]        
 The MVA, s. 179, is entitled “Rights of way between vehicle and
pedestrian.” I reproduce it in its entirety:

Rights of way between vehicle and pedestrian

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.

(3)        If a vehicle is slowing down or stopped at a
crosswalk or at an intersection to permit a pedestrian to cross the highway,
the driver of a vehicle approaching from the rear must not overtake and pass
the vehicle that is slowing down or stopped.

(4)        A pedestrian, cyclist or the driver of a
motor vehicle must obey the instructions of an adult school crossing guard and
of a school student acting as a member of a traffic patrol where the guards or
students are

(a)        provided under the
School Act,

(b)        authorized by the
chief of police of the municipality as defined in section 36 (1), or

(c)        if located on treaty lands, authorized by
the chief of the police force responsible for policing the treaty lands.

[28]        
In this case, Ms. Murdoch left the traffic island, a place of
safety, against a red light and pedestrian controls. Yet I cannot say that she
did so in such a manner as to make it impracticable for the drivers southbound
on Blanshard to yield the right of way. The vehicles in the westernmost two
lanes were able to yield for Ms. Murdoch. Therefore, I do not find that Ms. Murdoch
breached s. 179(2). In any event, I am not convinced that s. 179(2) is
intended to apply in circumstances like this, where there are light signals
directing vehicle and pedestrian movement.

[29]        
Clearly, however, in light of all Ms. Murdoch’s other statutory duties
and the circumstances, including the high volume of traffic at the time and the
red lights for both pedestrians and drivers, it was very reckless of her to
enter the crosswalk. Her own negligence contributed significantly to the
accident.

Duty and Standard of Care

[30]        
The case before me is very similar on its facts to those in Karran v.
Anderson, 2009 BCSC 1105 (“Karran”). In that case Cohen J. provided
a comprehensive analysis of the law on a very similar set of facts. The plaintiff
pedestrian was struck by the defendant’s vehicle while she was walking against
the light in a marked crosswalk at the intersection of Howe and Smithe Streets,
in the City of Vancouver.

[31]        
Mr. Justice Cohen said, at para. 55:

[55]      The principles of law that govern in this case have
been stated by our Court of Appeal in the decisions of Cook v. Teh, Coulter
(Guardian ad Litem) v. Ball, 2005 BCCA 199, and most recently in Simpson
v. Baechler, 2009 BCCA 13.

[56]      As the plaintiff submitted in her argument, the
authorities establish that the common law duty of care exists notwithstanding
statutory rights of way and that a breach of a statutory right of way merely
provides evidence in support of a finding of a negligent breach of the common
law duty of care: Cook v. Teh.

[57]      In Simpson v.
Baechler, the Court of Appeal set out the principles governing whether and
under what circumstances drivers with the right of way owe a duty of care to
other users of the road.

After his thorough outline of
the law, Cohen J. found at para. 65 that the defendant owed a duty of care to
the plaintiff with regard to the circumstances that existed in the intersection
at the time of the accident. He then said at paras. 66 to 67:

[66]      Having found that a duty existed, the next issue
for determination is whether the defendant exercised the standard of care
necessary to avoid breaching that duty.  In my opinion, the defendant did not
meet the standard of care placed upon him by the circumstances.

[67]      The defendant was
proceeding on a green light and thus had the right of way.  However, I find
that the defendant did not keep a proper lookout.  He failed to observe that
there were vehicles stopped in the middle two lanes on Howe Street.  I find
that by failing to observe that the vehicles in the middle two lanes had not
proceeded on the green light, and proceeding into the intersection at 50 km/h,
he acted in breach of the duty placed upon him to take special precautions in
the circumstances.

[32]        
In the case before me, I find that the defendant owed a duty of care to
the plaintiff with regard to all of the circumstances that existed in the
intersection at the time of the accident. Traffic was so heavy and congested
that special caution should have been taken by the defendant as she approached
the crosswalk even though she was proceeding on a green light.

[33]        
In this case, I do not believe that the defendant exercised the
appropriate standard of care to avoid breaching that duty. The drivers in
vehicles in the two lanes to her right were able to observe and stop for the plaintiff,
and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk
was able to observe that something was happening in his rear-view mirror. In
the circumstances, I find that the defendant failed to keep a proper lookout by
failing to observe Ms. Murdoch’s entry into the crosswalk and by failing
to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch.
I find that if the defendant had in fact been keeping a sufficient look out,
she would have been able to stop for Ms. Murdoch and avoid the collision.

Apportionment of liability

[34]        
In balancing the respective blameworthiness of the parties in this case,
as in Karran, the plaintiff’s negligence came first in time by entering
the crosswalk against the light. She created a risk of harm that was
significant. Ms. Larson was shocked by Ms. Murdoch’s decision to enter the
crosswalk in those circumstances. In many respects, Ms. Murdoch’s conduct
can be described in colloquial terms as every driver’s worst nightmare.

[35]        
In contrast, the defendant’s negligence is limited to her failing to
keep a better lookout in circumstances where she had the right of way.

[36]        
In all of the circumstances, I conclude that the 75% of the fault for
the accident should be borne by the plaintiff and 25% by the defendant.

[37]        
Costs may be spoken to if they cannot be agreed to by the parties.

                            “J.A.
Power, J.”                           

The
Honourable Madam Justice J.A. Power