IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120927

Docket: M105621

Registry:
Vancouver

Between:

Sukhbir Kaur
Sandhu

Plaintiff

And

John Doe,
Insurance Corporation of British Columbia
and Sharif Mohamed Ahmed

Defendants

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

In
Chambers

[1]            
This is an application by the defendants seeking the dismissal of these
proceedings against all defendants. In the alternative, the defendants ask the
Court to determine liability with respect to the Insurance Corporation of
British Columbia, (“ICBC”) and Mr. Ahmed (“Ahmed”).

[2]            
The proceedings arise from a motor vehicle accident that occurred on
August 31, 2010, in the City of Surrey, British Columbia.

[3]            
On that day, a motor vehicle operated by Ahmed struck the plaintiff, a
pedestrian, while she was crossing 96th Avenue in a northward direction. As a
result, the plaintiff sustained injuries.

[4]            
The plaintiff was 66 years of age at the time of the accident. She was
carrying an umbrella but says that it did not restrict her vision. She is 5
feet, 2 inches tall. The height of a typical automobile is five feet.

[5]            
The plaintiff had been at a TD Bank on the south side of 96th Avenue,
and was crossing 96th Avenue towards a grocery store on the north side.

[6]            
Ninety-sixth Avenue has four lanes and a divider in the center. Two
lanes are eastbound and two lanes are westbound. The plaintiff was attempting
to cross from a sidewalk at a point just west of the westernmost entrance into
the Cedar Hills Mall. There was no crosswalk where the plaintiff attempted to
cross. It was during daylight hours and there was light rain.

[7]            
Her attempted crossing was 5 to 6 store lengths to the east of the
intersection of 96th Avenue and 128th Street where a crosswalk was located. The
plaintiff was familiar with that crosswalk and had used it on previous
occasions.

[8]            
The plaintiff stood on the sidewalk before crossing. A vehicle stopped
in the southernmost or “curb lane” and the driver motioned to her to cross. That
driver is John Doe in these proceedings and was never identified. A second vehicle
stopped behind the John Doe’s vehicle. She says that both vehicles were normal
in size.

[9]            
The plaintiff then began to cross. After crossing the curb lane she
continued into the northerly of the two lanes or “center lane” and was struck
by Ahmed’s vehicle. The plaintiff admits that after crossing the curb lane she
did not look for vehicles in the center lane before she walked into that lane.

[10]        
Ahmed was travelling eastbound in the curb lane of 96th Avenue when
the two vehicles in front of him stopped near the entrance to the Cedar Hills
mall. He says that he observed that the front vehicle had its right turn signal
on and he believed that it was intending to turn right into the mall. He said he
did not want to wait for that vehicle to turn and decided to move into the
center lane.

[11]        
Ahmed says that he did not see any indication that the two vehicles were
stopped for a pedestrian nor did he believe that they were stopped for a
pedestrian. He says that at no time did he see any pedestrian in the vicinity. He
averred that he was keeping an eye out for a jaywalking pedestrian, as was his
usual practice. He lived nearby and was familiar with the area where the
accident occurred.

[12]        
Ahmed says that he activated his left turn signal and moved his vehicle
into the center eastbound lane to pass the vehicles that had stopped. After
changing lanes and proceeding a short distance he says that he first noticed
the plaintiff as she entered the lane in which he was travelling. He then says
he immediately applied his brakes. His uncontradicted evidence is that he was
travelling at less than 30 kph but could not stop in time to avoid striking
the plaintiff.

Analysis

[13]        
The plaintiff submitted that this matter was not suitable for a summary
trial. Applying the principles enunciated in Inspiration Management Ltd. v.
McDermid St. Lawrence Ltd., 1989 CanLII 229 (BCCA), I find that this matter
is appropriately dealt with summarily under Rule 9-7. In my view the affidavit
evidence is sufficient to find the facts necessary to decide the question of
liability and apportionment thereof. The plaintiff is not seeking a determination
of quantum. There is no conflicting evidence in the affidavits of the plaintiff
and Ahmed that is material to the determination of the issues.

[14]        
Plaintiff’s counsel challenged the credibility of some of the affidavit
evidence of Ahmed such as the speed that his vehicle was travelling, his
failure to observe the plaintiff before she crossed, and his evidence that the
vehicles that stopped had activated their turn signals; however, there is no
conflicting evidence nor is there any basis to discredit his evidence on those
points.

[15]        
If liability is found on the part of the defendants, although a trial
may still be required to determine the quantum of damages, the length of the
trial should be less than if the issue of liability remained to be resolved.

[16]        
The statutory provisions that bear on this case are found in the Motor
Vehicle Act, R.S.B.C. 1996, c. 318, s. 180, as follows:

180      When a pedestrian is
crossing a highway at a point not in a crosswalk, the pedestrian must yield the
right of way to a vehicle.

[17]        
Notwithstanding the provisions of s. 180, s. 181 states as follows:

181      Despite sections 178, 179 and 180, a driver of a
vehicle must

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

[18]        
In my view, as the plaintiff was not crossing the road in a crosswalk,
the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the
same time, Ahmed was required to exercise due care to avoid colliding with a
pedestrian on the highway.

[19]        
I find that the plaintiff was negligent in attempting to cross the
street where there was no crosswalk, marked or unmarked, and, more
significantly, by walking into the lane in which the defendant Ahmed was
travelling, without looking to determine if a vehicle was approaching before
entering that lane.

[20]        
The defendant Ahmed was also negligent in passing two stopped vehicles
when the possibility of a pedestrian attempting to cross was reasonably
apparent, even if he believed that the vehicles were also intending to turn
into the mall after they stopped.

[21]        
In my view, no liability attaches to John Doe. There is no evidence that
the plaintiff made any attempt to locate John Doe. Even if he had been located,
the mere act of indicating to the plaintiff to cross in front of his vehicle,
in my view, would not attract liability nor relieve the plaintiff of her duty
of care.

[22]        
I will turn now to apportioning liability between the plaintiff and the
defendant Ahmed. A decision of our Court of Appeal, Callahan (Guardian ad
litem of) v. Cairns, [1995] B.C.J. No. 2663, dealt with circumstances which
are very similar to those in the case at bar. In that case, a 12-year-old girl
crossed a four-lane highway in front of a vehicle that had stopped to let her
cross. She was then struck by a vehicle travelling in the adjacent lane. She
had not looked for traffic before entering the lane where she was struck. The
Court of Appeal upheld an apportionment of liability two thirds to the vehicle
driver and one third to the pedestrian.

[23]        
Some differences in the facts in Callahan from those in the case
at bar suggest a different apportionment should be made in the case at bar. In Callahan,
the pedestrian was crossing at a point which “any intelligent adult would have
determined to be the appropriate place to commence crossing the street.” She
crossed at an intersection in close proximity to an unmarked crosswalk. In the
case at bar, the plaintiff chose to cross in about the middle of a block, some
distance from a marked crosswalk that she had used before.

[24]        
Also in Callahan, the negligence of the defendant involved
driving too fast, as well as passing stationary cars in a situation of
potential hazard. In the case at bar, the defendant Ahmed was travelling at
less than 30 kph when he passed the stationary vehicles. I note that that
is the speed limit posted in parks where there is always the potential for
children to be on the streets during daylight hours so, in the circumstances, I
do not consider his speed to be “too fast.”

[25]        
Considering the conduct of the plaintiff and the defendant Ahmed and the
surrounding circumstances, I have concluded that a reasonable apportionment of
liability is 25% to the defendant Ahmed and 75% to the plaintiff.

[26]        
Costs are awarded to the defendant at Scale B.

“Bowden
J.”