IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Mawani v. Pitcairn, |
| 2012 BCSC 1288 |
Date: 20120831
Docket: S090335
Registry:
Vancouver
Between:
Mansurali Mawani
Plaintiff
And
Peter
Syme Pitcairn and British Columbia Hydro and Power Authority
Defendants
Before:
The Honourable Mr. Justice Kelleher
Reasons for Judgment
Counsel for the Plaintiff: | K. Gourlay |
Counsel for the Defendant, Mr. Pitcairn: | P. Arvisais |
Place and Date of Summary Trial: | Vancouver, B.C. July 17-18, 2012 |
Place and Date of Judgment: | Vancouver, B.C. August 31, 2012 |
[1]
This is a summary trial. The plaintiffs claim arises out of a
pedestrian/motor vehicle accident. Mansurali Mawani was struck by a vehicle
driven by the defendant Peter Pitcairn. The claim against British Columbia
Hydro and Power Authority has been discontinued.
[2]
The defendant Pitcairn applies for an order pursuant to Rule 9-7(15) of
the Supreme Court Civil Rules, B.C. Reg. 168/2009, that the plaintiffs
claim against the defendant be dismissed with costs. The plaintiff seeks a
decision that the defendant is 100% liable for the accident.
[3]
Depending on the outcome of these issues, consideration may have to be
given to contributory negligence.
[4]
The accident occurred on February 1, 2007, at approximately 6:40 a.m.
It happened on Steveston Highway in Richmond, between Bamberton Drive and
McKenzie Road.
[5]
The defendant was driving a 2005 Ford F350 pickup truck. He and his
passenger, Gary Holley, were enroute to work, proceeding eastbound in the curb
lane of two eastbound lanes of traffic. The conditions were damp, dark, and
foggy.
[6]
The plaintiff was out for a walk. He was walking along a footpath on
the south side of Steveston Highway. There is no sidewalk on that side of the
highway.
[7]
An unusual aspect of this case is the fact that there is little
admissible evidence about what occurred. The plaintiff, as a result of
injuries sustained in the accident, has no memory of the accident or the events
leading up to it. The passenger, Mr. Holley, died on August 12, 2008.
Mr. Pitcairn suffers from Alzheimers disease. It was diagnosed
approximately one year before his examination for discovery. It is agreed that
he could not currently give reliable evidence at a conventional trial.
[8]
The parties agree that Rule 9-7 is the appropriate procedure for
adjudicating the question of liability.
[9]
There is evidence from the plaintiff which the defendant accepts:
1.
there is no crosswalk in the area where the accident occurred;
2.
there is a point on the path where it narrowed and came close to the
curb, where it was overgrown with bushes which crowded the path, and which had
in the past caused the plaintiff to leave the path and walk on the curb or in
the gutter of the Steveston Highway;
3.
the plaintiff has no memory of how far he walked along the path on this
occasion before leaving it to end up in the eastbound lane of Steveston
Highway.
[10]
The matter originally came before Mr. Justice Harris, before his recent
elevation to the Court of Appeal. He heard argument on some evidentiary
issues. The matter was then adjourned for cross-examination of the parties
experts.
[11]
On January 18, 2012, Mr. Justice Harris made his ruling (Mawani
v. Pitcairn (18 January, 2012), Vancouver S090335 (B.C.S.C.)). He ruled
that several statements were inadmissible:
(1)
a statement by Mr. Pitcairn made to the RCMP on February 1, 2007,
within 30 minutes of the accident;
(2)
a statement by Mr. Holley to the RCMP also made on February 1,
2007;
(3)
a statement by Mr. Pitcairn to an ICBC adjuster made on February 2,
2007; and
(4)
a taped interview Mr. Pitcairn had with the RCMP on March 23, 2007.
[12]
Harris J., as he then was, also considered the affidavit of the
plaintiff sworn March 31, 2011. Mr. Mawani has no memory of the
accident. Harris J. ruled that certain paragraphs of the affidavit amounted to
speculation and were not admissible. The effect of the ruling was to exclude
the last two sentences of paragraph 17, all of paragraph 18, the first sentence
of paragraph 19, and the first and last sentence of paragraph 20.
[13]
There were further issues addressed by Harris J. in this ruling. The
matter was originally set down for summary trial by Notice of Application dated
March 7, 2011. On April 4, 2011, the plaintiff filed an application response.
The response indicated that the plaintiff was relying on only two affidavits:
an affidavit of the plaintiff and an affidavit of Joanne Forrest, attaching an accident
reconstruction analysis report. The response also stated that the plaintiff
would be relying on other evidence to be provided to the defendant before the
hearing. Harris J. then said this, at paras. 35-36 of his decision:
[35] On June 3, 2011, Ms. Forrest, on behalf of Mr. Mawani,
swore Affidavit #2 which attached the entire transcript of the examination for
discovery of Mr. Pitcairn, as well as a copy of the transcript of his
video deposition. There is no indication of the purpose of attaching those
documents. The affidavit does not purport to identify which particular
portions of the examination for discovery would be relied on. It is not
apparent whether the plaintiff intended to give notice that he was
incorporating or purporting to incorporate all of that evidence as part of the
evidence constituting part of his case. That would be the natural inference,
but I suspect that it was not the subjective intention.
[36] The notice of
application included, as material to be relied on, the affidavit of Mr. Pitcairn,
portions of the examination of Mr. Pitcairn as counsel may advise, and the
transcript of the video deposition of Mr. Pitcairn.
[14]
His Lordship pointed out that Mr. Pitcairn could not rely on portions of
his examination for discovery. A party cannot introduce into evidence his own
examination for discovery at trial.
[15]
The summary trial did not proceed. Instead, a new notice of application
was filed by the defendant. It referred to Mr. Pitcairns affidavit, but
did not refer to his examination for discovery or his deposition.
[16]
The plaintiff did not file a new response. However, Ms. Forrest
filed a further affidavit in which she identified those parts of the
examination for discovery of Mr. Pitcairn that Mr. Mawani intended to
rely on as part of his case.
[17]
The defendant argued before Harris J. that the first notice of
application contained judicial admissions that were binding on the plaintiff,
and which could not be withdrawn. That argument did not prevail:
[44] I ruled that the
summary trial was proceeding on the basis of the November 30, 2011, notice of
application, and that statements of fact contained within the earlier notice of
application were not binding judicial admissions.
[18]
Harris J. stated that Mr. Mawanis case consisted of all the
examination for discovery evidence of Mr. Pitcairn, together with Ms. Forrests
affidavit disclosing which portion he intended to rely on. There was as well
the deposition evidence of Mr. Pitcairn. No one applied (or has since
applied) for the admission of that evidence, so the deposition evidence is not
before me.
[19]
A further issue arose about Mr. Pitcairns affidavit of March 7,
2011. Although the notice of application stated the intention of the defendant
to rely on the affidavit, Mr. Pitcairns position is that it should not be
admitted, or alternatively given little weight. This was because of Mr. Pitcairns
diminished capacity due to Alzheimers disease.
[20]
Harris J. ruled that the affidavit of Mr. Pitcairn was not excluded
on a blanket basis (para. 60).
[21]
Harris J. then directed the plaintiff to file an application response
which set out exactly what he relies on.
[22]
On February 29, 2012, Mr. Mawani filed the application response as
directed by his Lordship. In it, he stated the material to be relied on to be:
(1)
Affidavit No. 1 of Michael Araszewski dated May 16, 2011;
(2)
Affidavit No. 1 of Mansuali Mawani dated March 31, 2011;
(3)
Affidavit No. 3 of Joanne Forrest dated December 12, 2011. The
plaintiff will rely on the questions and answers from the June 29, 2010
examination for discovery of the defendant, noted at paragraph 3 of that
affidavit. However the plaintiff will not rely on questions 194-196 but will
rely upon questions 199-200. To summarize, the questions relied upon by the
plaintiff are: 1-11, 14-15, 19, 38-44, 77-82, 85, 91-94, 116, 123-124, 137-140,
149-155, 179-182, 197, 199-200, and 201-202; and
(4)
such materials tendered by the defendant as counsel may advise.
[23]
At the hearing before me, the defendant argued that the entire
examination for discovery of the defendant is before me. That is because of para. 46
of the earlier ruling:
[46] … Neither the
deposition evidence nor Mr. Pitcairn’s examination for discovery are
tendered as part of Mr. Pitcairn’s case. If they are before me at all,
they are before me as part of Mr. Mawani’s case. His evidence, as matters
currently stand, includes both the entirety of the examination for discovery
evidence, and an affidavit from Ms. Forrest disclosing those portions of
the examination for discovery he intends to rely on. It also includes the
entirety of the deposition evidence, but as I already noted, the rules do not
provide for the admissibility of the deposition on summary trial unless
arguably the court makes an order for its admission. As I have also noted,
there has been no application yet made by any party for that deposition
evidence to be received in whole or in part.
[24]
I disagree with the defendant that the entire examination for discovery
is before me. Mr. Justice Harris went on to direct, at para. 69,
that plaintiff’s counsel file an application response which sets out the
material on which he relies as part of the evidence in his case. Mr. Gourlay
did that on February 29, 2012.
[25]
Mr. Arvisais argues that the entire transcript is in evidence. In
a conventional trial, the transcript would not be an exhibit.
[26]
The application response filed February 29, 2012, makes it clear that
the plaintiff is relying on certain questions and answers only. Despite Mr. Justice
Harriss statement at para. 46 of his reasons, which were published before
the application response was filed, the plaintiff does now make clear what
questions and answers are relied upon. The attachment of the entire transcript
of the examination for discovery is consistent with the proper procedure
outlined by Burnyeat J. in Newton v. Newton, 2002 BCSC 14.
[27]
No one has sought to introduce the deposition of the defendant.
Examination for Discovery Issues
[28]
The plaintiff read in a number of questions and answers from the
defendants examination for discovery. The defendant submits that several
questions and answers should be read in as well.
[29]
The Courts power to do so is contained in Rule12-5(49):
(49) If part of an examination for
discovery is tendered in evidence, the court may review the whole of that
examination and if, following the review, the court considers that another part
of the examination is closely connected with the part tendered in evidence, it
may direct that the other part be tendered as evidence.
Rule 40(24) of the previous Rules was to a similar effect.
[30]
The approach to this rule was described in Foote v. Royal Columbian
Hospital (1982), 38 B.C.L.R. 222 (S.C.). In that case, then Chief Justice
McEachern, reviewed the authorities and concluded, at 225-26:
In my view it is appropriate for
the Court, on its own motion, or on the request of any party, to put into
evidence any other parts reasonably connected to portions of an examination
already put into evidence. In determining whether parts of the examination are
connected, the Court may consider continuity of thought or subject-matter, the
purpose of introducing the evidence should, so far as possible, represent the
complete answer of the witness on the subject-matter of the inquiry so far as
the witness had expressed it in the answers he has given on his examination for
discovery. In this way the Court strives to ensure that the evidence of the
witness on each subject-matter is complete, but the Court must, of course, be
careful also to ensure that answers are not admitted into evidence which, upon
a consideration of the course of the trial, ought to be adduced, if at all, by viva
voce evidence.
[31]
With these principles in mind, I turn to the questions and answers in
dispute.
[32]
The plaintiff read in question 116:
116. Q. So did you see him leave the curb?
A. Did I see him leave the curb? It happened
so fast I cant really say. I didnt go on to the curb myself, so he must have
left the curb. Thats all I can say.
[33]
The defendant submits and the plaintiff agrees that the following
questions and answers should also be read in:
117 Q. Is
it possible that he was standing in the roadway near the curb as you were
coming down the road rather than he left the curb in front of the vehicle?
A. No, I would say he
left the curb.
118 Q So
did you see him step out from the curb in front of your vehicle?
A All of a sudden he
was there coming off the curb I guess.
119 Q Was
he making a movement that made you believe he was jumping or that he was
stepping or that he was falling or anything of that nature?
A Well, he was hard to see because he was all
dressed in black, so I really can’t say.
[34]
The plaintiff read in questions 197, 199 and 200:
197 Q So
when you stated to ICBC that you did not see the pedestrian prior to him being
in front of your vehicle, when you stated that, did you mean he was in front of
and on the curb?
A I didn’t see him
until he was off the curb. So he may have stepped out just as I was going by
or starting, to go by. I don’t know. He just came out of the darkness,
dressed in black.
…
199 Q So
when you first saw the pedestrian were you able to tell if he was moving?
A When I first saw
him?
200 Q Yes.
A I saw him when he hit the vehicle.
[35]
The defendant submits that questions 194, 195 and 196 should be read in
as well:
194 Q Do
you believe that the statement you gave to ICBC is correct where you say that
you did not see the pedestrian prior to him being in front of your vehicle
A Well, that was the
first I had- ever seen this fellow, was when he was there out of the blue, just
out of the darkness.
195 Q So
the first time you ever saw the individual he was already in the lane of travel
then?
A No. I believe
he was on the curb when I first saw him.
196 Q When
you stated to ICBC that, quote: "My passenger who is a carpool buddy, he
told me that in his opinion the pedestrian had jumped off the curb and was
struck by my vehicle," do you remember if you were stating that because
you didn’t have any independent recollection of the pedestrian leaving the
curb?
A I don’t know about jumping off the curb.
He may have fallen off the curb or stumbled, but I — you know, all of a sudden
he was there just out of the darkness.
[36]
I conclude that those answers 194, 195, and 196, should be part of the
record. The statements are reasonably connected to questions 197, 199 and
200. Fairness would dictate that they be included to provide a more complete
answer. I note that question 195 elicited an answer which is inconsistent with
his answer to questions 116 and 194.
[37]
The defendant also submits that questions 125-128 should be included.
These questions follow 123 and 124 which have been read in:
123 Q If
we could return to the statement you gave to Constable Lunny. I’m looking at
page 12 of 45 beginning with JL: "Yeah, do you think you skid,
skidded?" You responded: "Yes, I heard the tires sliding on the —
and then it’s inaudible. There might be some
MR. NUGENT: It begs the question of sliding
MR. GOURLAY:
124 Q Sliding,
yes. Are you able to provide any clarification on that? Was there a bit of
sliding perhaps?
A It may have slid because of the damp road
possibly.
[38]
The defendant submits the following should be included:
125 Q With
the question just above that Constable Lunny asked, and I’m quoting: "Did
you uh, describe your action when you saw a figure or the person, what did
you do." You responded: "I immediately went for the brake and put
my foot on the brake and, uh, then as soon as I realized it he was jumping in
front of the vehicle when I put the brakes on." What I take from that
statement is that you saw the figure and put your foot on the brake and then
you saw him jump in front of the vehicle and that’s when you applied the
brakes. Is that consistent with your recollection?
A From what I recall,
yes.
126 Q What
I took from that is you saw somebody and you had — as a driver normally would,
you hovered, your foot over the brake because there was possible danger, and
then when you realized he was jumping in front, then you hit the brake. Is
that what you recall occurring?
A Basically, yes.
127 Q Does
that suggest to you, then, that there was perhaps more than let me start
again. Perhaps there was some time lapse between the moment you first saw the
individual and the collision occurring?
MR. NUGENT: Counsel, I don’t understand the
question. He has told you before what time there was between when he saw him
first and when he braked. Are you suggesting to him that there was more time
than that? Is that your question is what I’m trying to get at.
MR. GOURLAY:
128 Q That’s
my question, yes. Before his answer to the estimate between the time when he
first saw the individual and the impact occurring he stated that it was almost
immediate. If he covered the brake with his foot, then saw him jump in front
of the vehicle, and then applied the brake, that suggests to me that there was
more time than almost immediate or perhaps I’m misinterpreting "almost
immediate." I’m just wondering if you can provide any clarification on
that.
A Possibly a split second.
[39]
These answers are somewhat inconsistent with the previous answer. It
comes down to whether the defendant saw the plaintiff leave the curb or
suddenly noticed him on the highway.
[40]
I conclude that questions 125-128 are not to be read in. They are not
required to provide a complete answer on the subject matter. These are
answers which, in the words of Foote v. Royal Columbian Hospital, ought
to be adduced by viva voce evidence. In fact, Mr. Pitcairn did
provide a later affidavit. He has put that version before the court.
Paragraphs 12-14 of his affidavit provide as follows:
12. As I continued to drive my truck eastbound on
Steveston Highway an individual dressed all in black suddenly and without warning
stepped off the raised curb separating the area south of Steveston Highway with
the eastbound curb lane of Steveston Highway I was traveling in (the
"Curb").
13. I saw the pedestrian for a very brief moment/ split
second before he left the Curb. At this point I put my foot on the brake but
did not apply it. As soon as he left the Curb, I immediately slammed on the
brakes.
14. The time that elapsed
between when I first saw the pedestrian and the impact was quicker than my
mind. He just appeared there, out of the darkness.
The Defendants Speed
[41]
At his examination for discovery, the defendant stated his belief that
the speed limit on that stretch of Steveston Highway is 60 km/h. When asked
how fast he was going at the time of the accident, his answer was:
Speed limit. Probably slower
because of the weather. Im not positive.
[42]
In fact, it is common ground that the speed limit is 50 km/h at that
point.
[43]
The defendant deposed in his March 3, 2011 affidavit that his speed was
between 50 and 60 km/h.
[44]
There is no physical evidence available to determine the defendants
speed. There is no other eyewitness evidence.
[45]
I find that the defendants speed was between 50 and 60 km/h.
Visibility
[46]
The defendants evidence is that there was heavy fog at the time of the
accident. At his examination for discovery, he was asked how far he could
see. He responded with the headlights, 75 feet.
[47]
In the defendants March 3, 2011 affidavit, he said at paragraph 11:
The fog limited my visibility to
approximately 75 to 100 feet ahead of me.
[48]
I find that his answer at his examination for discovery is more
reliable. It was given on June 29, 2010, eight months before the affidavit was
sworn.
[49]
I accept the 75 foot estimate as more reliable. There are four reasons:
(1)
the discovery was closer in time to the accident;
(2)
Mr. Pitcairns memory was better at the time of the discovery than
it was when he swore the affidavit;
(3)
an affidavit is prepared with the assistance of counsel. Such an
affidavit, sworn in support of an application to dismiss the claim, is more
likely to be self serving; and
(4)
Mr. Pitcairns memory has been deteriorating. Cross-examination on the
affidavit is not practical.
Weather Conditions
[50]
Mr. Pitcairn said it was misty at the time of the accident. The
records of Environment Canada indicate the temperature at the Vancouver
airport, 7.9 kilometres away, was 1.0° at 6:00 a.m. and 2.6° at 7:00 a.m. The
road was damp.
Location of the Impact
[51]
A central issue is the determination of where the plaintiff was when he
was struck by the defendants vehicle. This is obviously central to the
question of liability. If the plaintiff were in the middle of the highway,
that is a far different matter from his being at the edge of the curb.
[52]
This involves a consideration of the defendants evidence and the
reports of the parties experts.
[53]
There are two eastbound lanes. It is common ground that the centre lane
is 3.1 meters wide and the curb lane, where the defendant was driving and where
the impact took place, is 4.1 meters wide. In the defendants examination for
discovery, he estimated the distance from the impact to the curb as 18-24
inches:
137 Q Where
in the road did the accident occur? Or where in the lane of travel did the
accident?
A Where in the lane
of travel?
138 Q My
question is how far from the curb, I suppose.
A Im not even sure
what a road width is. Probably a foot and a half away from the curb, Im
guessing.
139 Q Your
statement to Constable Lunny, you guessed maybe two feet into the road. Thats
around the same?
A Two feet?
140 Q Yeah.
A Close, yeah.
[54]
The defendant gave evidence to the same effect in his affidavit sworn on
March 3, 2011:
15. The impact between my
truck and the pedestrian took place in the Curb lane for eastbound traffic on
Steveston Highway roughly one and a half to two feet from the Curb in the
eastbound lane of traffic from the south side of Steveston Highway.
[55]
That was the position the defendant formerly took in these proceedings.
In the March 7, 2011 Notice of Application (which application did not proceed),
the defendant took the position that the accident occurred roughly one and a
half feet from the curb.
[56]
However, in the current Notice of Application, the defendant argues that
the accident occurred 1.39 meters from the curb. This is based on the report
prepared by engineer Kurt Ising and dated July 5, 2011. Mr. Ising revised
the calculation: in his original report dated October 5, 2010, he calculated
the distance Mr. Mawani travelled from the curb to the impact as 1.25
meters.
[57]
Mr. Isings calculations are based on assumptions, which have not
been established as true. After the accident, the Pitcairn vehicle was stopped
in the right lane, angled toward the curb. Mr. Ising measured the
distance from the back wheel to the curb, and from the front wheel to the curb,
and averaged them. The average of those two distances is 1.39 meters. That is
clear from the following exchange in his cross-examination:
Q Mr. Ising, can you tell me where in the
lane, specifically how far from the curb Mr. Mawani was when the accident
occurred?
A Well, that was an assumption in my original
report. I had assumed that the impact position of the pickup was consistent
with its reset position in the lane, which is approximately centred in the
lane, and so that was consistent with Mr. Mawani stepping out 1.39 metres
from the curb to impact.
…
Q Okay. You dont actually offer an opinion
about the impact location in your reports, do you?
A Well, Ive made
an assumption as to where that point of impact was.
[58]
It is possible that the impact was 1.39 meters from the curb, but not
likely. There is no evidentiary basis for concluding that the average distance
from the front and back tire to the curb is the actual distance. There is no
evidence of what Mr. Pitcairn did when he saw the plaintiff in his path
and what he did after the impact.
[59]
It would not be unlikely that Mr. Pitcairn would swerve to the left
to try to avoid the impact. In that event, he might well later move the
vehicle, after the impact, toward the curb to avoid the possibility of another
collision.
[60]
Mr. Ising, in cross-examination, said that the most common response
of a driver suddenly faced with a pedestrian at the right corner of his
vehicle, would be to swerve left.
[61]
I conclude it would be speculation to find that the vehicles position
after the accident indicates where it was at the moment of impact.
[62]
The defendant argues that one would not expect a driver to estimate,
after the onset of dementia, the distance from the curb with any sort of
precision.
[63]
That may be so. The difficulty is that his estimate is the only
satisfactory evidence before me. For the reasons stated above, I reject the
analysis of Mr. Ising based on where the vehicle came to rest.
[64]
I find that the impact was 18 to 24 inches from the curb, or 45.72 cm to
60.96 cm.
[65]
The damage to the vehicle extends 41 cm from the right front of the
vehicle to the centre of the vehicle. The point of impact can be seen as
halfway along that, or 20.5 cm from the right side of the vehicle. Therefore, the
right side of the vehicle was 25.67 (45.72 minus 20.5) to 40.91 (60.96 minus 20.5)
cm from the curb.
[66]
The lane is 410 cm wide. The defendants vehicle is 203 cm wide. If
the right side of the vehicle was 26 to 41 cm from the curb, the left side of
the vehicle was 177 to 192 cm from the left edge of the lane.
[67]
That means that the defendant was driving very close to the curb. If he
had been in the centre of the lane, there would have been 103.5 cm on either
side of the vehicle. That would have permitted the defendant to pass Mr. Mawani,
or for that matter, a cyclist, without any impact.
[68]
Thus, the evidence establishes that the defendant was exceeding the
speed limit, in dark, foggy, and misty conditions, and driving very close to
the curb.
Stopping Distance in these Conditions
[69]
Mr. Pitcairn said that he was travelling between 50 to 60 km/h. He
said the visibility was 75 feet. The speed of 50 to 60 km/h converts to 45.56
to 55.68 feet per second.
[70]
Mr. Ising in his report explains the concept of perception/response
time or PRT. That is the time it takes for a driver to notice a hazard and
initiate a response to it. Mr. Ising referred to a study in which drivers
were found on average to take 1.33 seconds for this reaction and action. He
allowed that the persons in the study were primed to respond to an unexpected
hazard.
[71]
Michael Araszewski, the plaintiffs expert, suggested a PRT in these
conditions of 1.5 to 2.0 seconds. Mr. Ising agreed in cross-examination
that those numbers were realistic.
[72]
In these circumstances, the defendant was driving at a speed that gave
him no opportunity to react to dangers, whether the danger was a dog, a
cyclist, or Mr. Mawani.
[73]
Mr. Araszewski, in his report, gave the maximum speeds at which a
driver could perceive a hazard and stop on a number of variables. He said that
assuming 75 feet of visibility and a PRT of 1.5 seconds, the maximum reasonable
speed is 35.9 km/h. If the PRT is 2.0 seconds, the maximum reasonable speed is
30.7 km/h.
[74]
The evidence establishes that Mr. Pitcairn was driving 50 to 60
km/h. He was travelling at a speed well over the maximum reasonable speed for
the conditions.
[75]
I also conclude that the defendants speed was what caused the
accident. In his examination for discovery, he denied seeing the plaintiff
leave the curb. The question was put to Mr. Pitcairn squarely in Question
116 of the examination for discovery. He answered:
Did I see him leave the curb? It
happened so fast I cant really say. I didnt go on to the curb myself, so he
must have left the curb. Thats all I can say.
[76]
His answer to Question 197 is of the same effect:
I didn’t see him until he was off
the curb. So he may have stepped out just as I was going by or starting, to go
by. I don’t know. He just came out of the darkness, dressed in black.
[77]
He later vacillated to some extent. His evidence in his affidavit is also
to a different effect. But the affidavit is subject to the weaknesses I
described earlier. That is, it was made by a person with a memory disease,
several months after the discovery. Moreover, the affidavit was prepared with
the assistance of his counsel.
[78]
I find he did not see the plaintiff leave the curb.
[79]
It is trite law that a driver is not entitled to drive at the speed
limit where conditions make driving that speed dangerous: see Lloyd v. Fox
(1991), 57 B.C.L.R. (2d) 332 (C.A.).
[80]
The defendant argues that he cannot be required to guard against every
conceivable eventuality, but only those that are reasonably foreseeable.
[81]
I accept that. But in driving at that speed, and in those conditions,
and that close to the curb, he could as easily have struck a dog or a cyclist.
[82]
In summary, the plaintiff has discharged the burden of proof. The
accident was caused by the negligence of the defendant. The defendant was
driving too fast for the conditions and driving so quickly in the conditions
that he did not give himself an opportunity to avoid a collision when a hazard
came into view. Moreover, while a driver does not have a duty to be perfectly
centred in the driving lane, it was not reasonable to drive so close to the
curb. It creates a danger to cyclists and pedestrians such as the plaintiff.
Contributory Negligence
[83]
The defendant in his statement of defence pleads in the alternative that
if any of his acts or omissions constituted negligence, the plaintiff was also
guilty of negligence and the defendant pleads the provisions of the Negligence
Act, R.S.B.C. 1996, c. 333. Section 1 of the Negligence Act provides
as follows:
(1) If by the fault of 2 or more persons damage or loss is
caused to one or more of them, the liability to make good the damage or loss is
in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.
(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.
[84]
The onus is on the defendant to establish that Mr. Mawani was
contributorily negligent. That is, the defendant must prove that
Mr. Mawani did not take reasonable care and therefore contributed to his
own injury.
[85]
The law is settled that apportionment of liability pursuant to the Negligence
Act is based on the degree to which each party is at fault, and not the degree
to which each partys fault caused the loss. Lambert J.A. put it this way in Cempel
v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.) at
para. 19:
… The Negligence Act
requires that the apportionment must be made on the basis of "the degree
to which each person was at fault". It does not say that the
apportionment should be on the basis of the degree to which each person’s fault
caused the damage. So we are not assessing degrees of causation, we are
assessing degrees of fault. In this context, "fault" means
blameworthiness. So it is a gauge of the amount by which each proximate and
effective causative agent fell short of the standard of care that was required
of that person in all the circumstances.
[86]
In Aberdeen v. Langley (Township), 2007 BCSC 993, varied on other
grounds 2008 BCCA 420, Mr. Justice Groves set out a number of factors
which have been considered in assessing relative degrees of fault. Groves J.,
at para. 62, adopted the summary of the Alberta Court of Appeal in Heller v.
Martens, 2002 ABCA 122 at para. 34:
…
1. The nature of the duty owed by the tortfeasor to
the injured person…
2. The number of acts of fault or negligence
committed by a person at fault…
3. The timing of the various negligent acts. For example,
the party who first commits a negligent act will usually be more at fault than
the party whose negligence comes as a result of the initial fault…
4. The nature of the conduct held to amount to
fault. For example, indifference to the results of the conduct may be more
blameworthy… Similarly, a deliberate departure from safety rules may be more
blameworthy than an imperfect reaction to a crisis…
5. The extent to which
the conduct breaches statutory requirements. For example, in a motor vehicle
collision, the driver of the vehicle with the right of way may be less
blameworthy….
[87]
Groves J. considered a text on the subject, Chiefetz, Apportionment
of Fault in Tort (Aurora, Ont.: Canada Law Book, 1981) and suggested four
additional factors at para. 63:
6. the gravity of the risk created;
7. the extent of the opportunity to avoid or prevent
the accident or the damage;
8. whether the conduct in question was deliberate, or
unusual or unexpected; and
9. the knowledge one
person had or should have had of the conduct of another person at fault.
[88]
Groves J. concluded at para. 67:
[67] Thus,
the key inquiry in assessing comparative blameworthiness is the relative degree
by which each of the parties departed from the standard of care to be expected
in all of the circumstances. This inquiry is informed by numerous factors,
including the nature of the departure from that standard of care, its
magnitude, and the gravity of the risk thereby created.
[89]
The defendant Mr. Pitcairn breached his duty of care by driving too fast
for the conditions and driving too close to the curb side of the road.
[90]
The plaintiff Mr. Mawani breached his duty of care by not taking
adequate precautions for visibility, failing to walk on the side of the road
with a sidewalk, failing to walk facing traffic and failing to take reasonable
care for his own safety, either by falling or stepping into the roadway.
[91]
Both parties were in breach of certain provisions of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318. Mr. Pitcairn was in breach of
s. 144(1) which prohibits a person from driving at a speed that is
excessive related to the road, traffic, visibility or weather conditions. Mr.
Pitcairn was also in breach of s. 181 which states that, regardless of s. 179
(of which Mr. Mawani may be said to be in breach) a driver of a vehicle must
exercise due care to avoid colliding with a pedestrian who is on the highway.
[92]
Mr. Mawani was in breach of s. 179(2) which states that 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. Additionally, Mr. Mawani walked on the side of the road without
a sidewalk, with traffic, contrary to s. 182(2).
[93]
The fundamental question is who is more to blame for Mr. Mawanis
injuries? If this cannot be determined on the evidence, resort may be had to
s. 1(2) of the Negligence Act.
The impossibility or impracticability of apportioning fault
[94]
In Clyke v. Blenkhorn (1958), 13 D.L.R. (2d) 293 (N.S.S.C.), the
court considered Nova Scotias Contributory Negligence Act, R.S.N.S.
1926, c. 3, s. 2, which stated:
2. Where by the fault of two or more persons damage or loss
is caused to one or more of them, the liability to make good the damage or loss
shall be in proportion to the degree in which each person was at fault;
provided, that:
(a) If, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability shall be apportioned equally, and
(b) Nothing in this section shall operate so as to render
any person liable for any loss or damage to which his fault has not
contributed.
[95]
At para. 44, the court concluded:
…it is not imperative for the trial Judge to find fault in
unequal degrees; for the Act says that if "it is not possible to establish
different degrees of fault, the liability shall be apportioned equally". In
this context "not possible" simply means that the tribunal of fact
cannot find any substantial basis for discriminating between the respective
kinds of negligent conduct in terms of relative blame. This provision must
not be relied on too heavily, however, lest the tribunal abdicate its proper
function; on the other hand its availability should discourage a too meticulous
scrutiny of conduct in a matter so largely one of individual judgment.
[Emphasis added.]
[96]
Section 4 of the Ontario Negligence Act, R.S.O. 1990, c. N. 1,
states:
Where parties to be deemed equally at fault
4. If it
is not practicable to determine the respective degree of fault or negligence as
between any parties to an action, such parties shall be deemed to be equally at
fault or negligent. R.S.O. 1990, c. N.1, s. 4.
[97]
The Supreme Court of Canada considered the previous version of s. 4,
worded similarly, in Taylor v. Asody, [1975] 2 S.C.R. 414 at 424, and
concluded:
…The section in my view is not intended to relieve the
trial judge of the difficult, often agonizing, duty of apportioning fault and
negligence. The section is intended, I think, for those cases in which, due
to an absence of witnesses or dearth of reliable evidence, it is
impossible to reconstruct with any degree of assurance what occurred and therefore
a determination of respective degrees of fault is not, as a purely practical
matter, either feasible or indeed capable of attainment…
[98]
Considering these two decisions, Cheifetz in Apportionment of Fault
in Tort writes at p. 250:
…Therefore, where the evidence
is such that the court concludes that certain persons must have been at fault
in the accident, but the evidence does not explain how these persons were at
fault, it will not be practicable to determine their respective degrees of
fault. Such persons will be deemed equally at fault: Potan v. Keleher
(1975), 9 O.R. (2d) at pp. 297-98 (C.A.)…
[99]
Following the comments in Clyke, which dealt with a statute that
is worded similarly to B.C.s statute, it might be said that there is really no
substantial basis for discriminating between Mr. Mawani and Mr. Pitcairns
negligence.
[100] Similarly,
the Supreme Court of Canadas comments from Asody support a decision in
this case – where there is almost no reliable evidence – based on s. 1(2)
of the Negligence Act.
[101] That being
said, some attention should be paid to the caution highlighted in the above
excerpts not to rely too heavily on s. 1(2). Even though there is a dearth of
reliable evidence and no witnesses to the accident, from the circumstances it
appears clear that both parties were negligent in equal degrees. Mr. Pitcairn
was driving too close to the curb and too fast for the conditions such that he
could not avoid a collision if a pedestrian stepped or slipped into traffic. Mr.
Mawani was walking with his back to traffic, wearing dark clothing and he left
the curb for reasons unknown. It is difficult to determine what further
evidence could shed light on who was more to blame for the accident. I do not
know whether Mr. Mawani tripped or stepped intentionally into the roadway.
For the reasons below, I think it can be concluded that he stepped into the
roadway to avoid the bushes.
[102] On the evidence,
the accident would not have happened without the actions of both.
Is there a greater duty of care on the driver?
[103] The duty
on a motorist to take reasonable care to avoid colliding with a pedestrian
under s. 181 is no greater than the duty on a pedestrian to take care for his
or her safety when entering a roadway: Liston v. Striegler (1996), 25
B.C.L.R. (3d) 57 at para. 14 (C.A.).
[104]
In McDonald v. Klassen, 2005 BCSC 1188, Macaulay J. put it this
way;
51 Sections
180 and 181 apply in the case at bar. As well, both the pedestrian and driver
owed common law duties: the plaintiff, as a pedestrian had a duty to take
reasonable care for her own safety and the defendant, as driver had a duty to
exercise due care to avoid a collision with a visible pedestrian. The duties
owed by one are not greater than those owed by the other. The question of
degrees of fault if these duties are breached can only be resolved based on the
evidence as a whole. See Liston v. Striegler, [1996] B.C.J. No. 1408 (C.A.), at
para. 14.
[105]
The following excerpt is from Christensen (Litigation Guardian of) v.
Gerber, 2007 BCSC 1397 at para. 55:
55 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 (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.).
[106] Though the
cases above dealt with ss. 180 and 181 or their predecessors, the principle is
the same for s. 179(2), namely, that when a pedestrian enters the roadway,
although there is a duty on a driver to avoid a collision, there is an equal
duty on the pedestrian to do so as well.
[107] In OConnor
v. James, 2009 BCSC 1119, the circumstances were somewhat similar to those
in the case before me. A pedestrian was struck from behind while walking with
the flow of traffic in the roadway, wearing only dark clothing. A claim
against BC Hydro was discontinued. The distinguishing factors are, the
plaintiff was intoxicated and it was determined that he was walking in the
middle portion of the lane of travel. Burnyeat J. apportioned liability 90% to
the plaintiff and 10% to the defendant.
[108] In this
case, the evidentiary uncertainties make it impossible to determine with certainty
that Mr. Mawani intentionally left the roadway. Both parties accept that Mr. Mawani
normally left the footpath to go around the bushes. Counsel for Mr. Mawani
allows that he may have stepped into the roadway, but that it would be
reasonable to infer that Mr. Mawani would have first checked traffic and would
have only proceeded into the road if an approaching vehicle was far away.
[109] I conclude
on the balance of probabilities that Mr. Mawani stepped into the road to avoid
the bushes and did not check behind him considering the location in the road
where he stepped. I disagree with the plaintiffs position that doing so is
not negligent.
[110] Accepting
this, stepping into the roadway to negotiate bushes is a less severe departure
from the standard of care than sauntering down the middle of the road as in OConnor.
And Mr. Mawani was not intoxicated.
[111] Additionally,
the defendant in OConnor was not driving too close to the curb side,
though he was driving too fast for the conditions. His speed of between 55-65 kph
was, like the current case, too fast for the dewy, dark conditions.
[112] For Mr.
Pitcairn, he should not have been driving so fast in foggy, misty and dark
conditions, and should not have been driving so close to the curb lane.
[113] It is uncontradicted
that, for whatever reason, Mr. Mawani suddenly ended up in the roadway. If Mr.
Pitcairn had not been so close to the curb, the accident would not have
happened. But if Mr. Mawani was taking adequate care for his safety, he would
not have slipped or stepped into the roadway. The combination of Mr. Pitcairns
proximity to the curb and Ms. Mawanis entering the roadway caused the
accident. Mr. Pitcairn could not have stopped given the timing or Mr. Mawanis
entry into the road. In these circumstances, I do not think that one can be
said to be more blameworthy than the other.
Conclusion
[114] The
evidence satisfies me that liability should be apportioned on a 50-50 basis.
[115]
In the result, I find liability is apportioned 50% to each party.
__________________________________
The
Honourable Mr. Justice S. Kelleher