IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130115

Docket: 40727

Registry:
Vernon

Between:

Jason
Sean Nadeau

Plaintiff

And

Okanagan
Urban Youth & Cultural Association, Ashley Brown,
Don Karimazondo, Tosh Mugambi, Jessica Pierson,
Yosef Wolfe, John Karroll, doing business as Skyz the Limit,
Swak Management Inc., Patsy Lynnora Karroll,
Dave Fraser doing business as Bodyguardz, Domingos Gregorio Usseni,
James Kibigi, James Mugambi, Insurance Corporation of British Columbia,
ABC Corporation doing business as “The Bluffs”, Eva Chantal Auma Mutanda,
John Doe #1 and John Doe #2

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Powers

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Jason Sean Nadeau, was injured on July 1, 2005, when he
was struck by a motor vehicle. He was attending a music concert at an outdoor
venue called The Bluffs. The Bluffs are located on an Indian Reserve on the
west side of Lake Okanagan, directly across the lake from the City of Kelowna.
This trial deals only with the issue of liability with regard to the parties
who are represented and participated in the trial. Counsel have agreed that the
issue of damages, if there is liability, can be dealt with by a judge other
than myself.

[2]            
There are a number of other defendants who did not appear and were not
represented at the trial. No claims were pursued at the trial with regard to
those defendants. Plaintiff’s counsel, at the opening of the trial, advised
that service had been effected in some cases by substitutional service against
the other defendants. He advised that he would be seeking judgment against
those defendants at the end of the trial. I advised him that he could consider
applying to the registrar for default judgment if he felt it was appropriate
and after considering the consequences of doing so. I advised him that if he
were seeking judgment after the trial, that would have to be based on the
evidence which was led at the trial, including, if any, evidence of negligence.
Ultimately, no applications were made with regard to any of the defendants or
parties not represented at this trial.

[3]            
One of those parties, John Karroll, was called as a witness. He was not
represented by counsel. I asked plaintiff’s counsel whether any claims were being
made or pursued against Mr. Karroll or his business, Skyz the Limit, or Swak
Management Inc., his employer. I was concerned that if claims were being
pursued against Mr. Karroll or these companies that he be aware of that so he
could consider whether he required the assistance of counsel. Plaintiff’s
counsel advised me that they did not believe they were pursuing any claims
against these parties. In defence of counsel’s uncertainty on this issue, I
should point out that he was required to take over the file on short notice
when the counsel who was scheduled to take the trial found he had a scheduling
conflict. The large number of defendants is a result of counsel’s caution in
naming all of the potential defendants who may have contributed to the
plaintiff’s injuries in order to avoid potential limitation problems. The
claims against those parties who were not in attendance at the trial were not
pursued during the trial, nor was evidence led with regard to those claims, nor
were arguments made with regard to any of those potential claims.

[4]            
Counsel who were present were prepared to proceed and, given the length
of time that has passed since the accident occurred, it is understandable they
would want some resolution with regard to the issue of liability of the parties
who were represented at the trial. Despite concerns I have about proceeding in
this fashion, including the potential splitting of a trial, I felt it was
appropriate to do so given the great deal of time which has passed since the
accident. I was also advised by plaintiff’s counsel that any of the other
defendants may be judgment-proof in any event. However, proceeding in this
fashion is not something I would recommend. This may lead to complications in
determining liability if any of these other defendants are in fact pursued to
judgment.

[5]            
The statement of claim alleges that Mr. Usseni was the driver and owner
of a Chevrolet Tahoe with a British Columbia license plate #756 EJD [paragraph
13]. The statement of claim also alleges that Ms. Mutanda was the owner of the
vehicle [paragraph 14]. In fact, Ms. Mutanda was the owner of the vehicle on
July 1, 2005.

[6]            
The statement of claim also alleges that Mr. James Kibigi and Mr. James Mugambi
were also the drivers of the vehicle at the relevant time [paragraphs 15 and
16]. These defendants asked that the claims against them be dismissed at the
end of the trial on the basis that no evidence was led to prove that they were
the drivers of the vehicle. The plaintiff agreed that no evidence had been led
to that effect.

[7]            
The Insurance Corporation of British Columbia (“ICBC”) is named as a
defendant to deal with coverage for losses caused by unidentified motorists: Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, s. 24(1) [paragraph 17]. A response
to civil claim was filed by the defendant, ICBC, with regard to the claims
against unidentified motorists. The statement of defence denies that the
plaintiff was involved in an accident at all, although that is not in issue at
trial. The statement of defence also alleged that the plaintiff failed to take
reasonable steps to ascertain the identity or ownership of the vehicle.
However, I was advised at trial that was not an issue or defence being pursued.
The statement of defence denies that the accident occurred on a highway and,
therefore, argues that the provisions under s. 24(1) of the Act dealing
with uninsured drivers do not apply. The defence also refers to the Negligence
Act, R.S.B.C. 1996, c. 333 and alleges contributory negligence against the
plaintiff.

[8]            
The trial record does not show whether a statement of defence has been
filed on behalf of Mr. Usseni, but he was present and represented by counsel.
ICBC filed a third party notice pursuant to s. 21 of the Insurance (Motor Vehicle)
Act, R.S.B.C. 1996, c. 231 (the “Act”) relating to Eva
Mutanda and, in that capacity, filed a statement of defence denying her
liability and pleading the Negligence Act, alleging contributory
negligence against the plaintiff. Mr. Usseni and Ms. Mutanda were represented
by the same counsel at this trial.

[9]            
A similar notice was filed with regard to the defendant, James Mugambi. A
statement of defence in the ordinary course was filed by the defendant, James
Kibigi, denying liability and again pleading the Negligence Act. Mr.
James Mugambi and Mr. Kibigi were represented by the same lawyer who
represented ICBC as a defendant.

ISSUES

[10]        
The issues in the trial before me are:

1)    Whether the
vehicle that ran over Mr. Nadeau was the vehicle owned by the defendant, Eva
Mutanda, and driven by the defendant, Domingos Usseni;

2)    If not, then it
is an unknown vehicle and unknown driver and, if so, whether the accident
occurred on a highway as defined in the Act and Motor Vehicle Act,
R.S.B.C. 1996, c. 318;

3)    Was the operator
of the vehicle negligent and was the plaintiff contributorily negligent?

BACKGROUND

[11]        
The motor vehicle accident occurred on July 1, 2005, approximately seven
and a half years before the trial. The passage of time has inevitably affected
the witnesses’ memories of the events. Some of the parties or witnesses who
could have given evidence have not been located, or if their whereabouts are
known, have not been called as witnesses. Some potential witnesses may not have
even been identified.

[12]        
The accident occurred at The Bluffs which is a large outdoor music
venue. The Bluffs is basically an open field with some fencing and a large open
stage. Access to The Bluffs is from a public road onto a dirt road that leads
to an entrance with four ticket wickets. People drive their cars through this
entrance and into a large field which is used as a parking lot. There is a long
fence which separates this parking area from the area surrounding the stage.
This fence has two entrances – one described as the main entrance. Concert
goers park their cars and then walk through this main entrance. Ahead of them
and to their right, away from the stage, was a beer garden. To their left were
concession tents that ran along the fence. Ahead of them was a large field
which faced the front of the stage. This large field was the viewing area.

[13]        
A supplementary dirt road also led from the area of the four ticket
wickets off to the left and then to the northeast end of the fence which
separated the general parking area from the concert area. There was a gate at
that location, but no physical barrier; this was referred to as the secondary
gate. This gate opened up to an area to the side and back of the stage. Inside
this area was a fence which extended from the side of the stage and then back
again towards the east enclosing an area behind the stage. There was a physical
gate which was controlled by security guards that allowed entry to this area
behind the stage. The area behind the stage has been referred to as the “VIP
area”. There were some motorhomes in that area which were used by the
performers, as well as a good deal of equipment that would be used by the
performers. Access to this VIP area was strictly controlled. The area between
the secondary gate and the VIP parking area was open and there was no barrier
which prevented passage from the area generally used by the concert goers to
view the stage and this area. Parking was allowed in this area, and it was
referred to as the secondary parking area during the trial. This was also
referred to as the “overflow parking area”.

[14]        
The evidence is not precise about exactly who could park in this area,
but clearly anybody with an artist or a crew pass could do so. I will deal with
this issue in more detail later in my decision.

[15]        
Mr. Nadeau accompanied two friends who were performing at a music
concert scheduled for the weekend. They attended on June 30, a Thursday. They
parked in this secondary parking area. Two of them had to return to their home
to make some changes to their program and, when they returned, they bypassed
the line of traffic after the wickets and came to the main gate. They were
allowed to drive through the main gate, past the concession stands and back
down to the secondary parking area. This was not the normal way to access the
secondary parking area. Normally access to the secondary parking area would be
through the secondary gate.

[16]        
Mr. Nadeau also attended with one of those friends, Mr. Jong, on July 1,
2005. There was some opportunity for Mr. Jong and members of his performance
group to perform again on July 1, although they did not do so. They did,
however, stay into the evening. This time they came through the secondary gate
and parked in the same secondary parking area. The event was not as busy as it
was the day before. There were a number of vehicles parked in the secondary
parking area.

[17]        
Mr. Nadeau consumed some beer throughout the day. Between 10:30 p.m. and
11 p.m., he was in the secondary parking area talking to his girlfriend on the
telephone. She had called him from Vancouver and was upset that he had not gone
to Vancouver with her, but rather chose to attend the concert with his friends.
Mr. Nadeau was trying to make amends for not being in Vancouver. The call
lasted approximately one half hour. He was in the secondary parking area where
vehicles did come and go. Sometimes he was standing and sometimes he was
squatting. He was facing east, away from the area occupied by the main concert
goers and the concession tents, and looking towards the lake which backed the
venue. There was some ambient light, but this particular area was not lit.

[18]        
Mr. Nadeau was sometimes standing and sometimes squatting down on his
heels while he was talking on the telephone. He saw a light reflecting on some
leaves along the fence between himself and the lake. The light was coming from
behind him. He turned and saw a vehicle which he said was some distance away.
He thought it was unusual for a vehicle to be coming from that direction which
was in the area of the concession tents. He assumed he was clearly visible and
that the driver would see him, or that some of the security people on site
would deal with the vehicle. He turned away again, looking back to the east. He
again looked over his left shoulder just as the vehicle struck him and he was
run over by the vehicle. He was rolled or dragged under the vehicle until it
stopped. He is not sure what distance that may have been.

[19]        
When the vehicle stopped, he was still under the vehicle and between the
front and rear passenger side wheels. His head, and probably his shoulders,
were partially out from under the vehicle, but the rest of his body was
extended under the vehicle towards the driver side. Someone in the rear
passenger side of the vehicle got out, looked at him, and said words to the
effect that they had hit somebody and they needed to get out of there. The person
jumped back into the vehicle and it proceeded to drive over Mr. Nadeau’s chest
with the rear passenger wheels. He was shocked when the person jumped back into
the vehicle and he realized they were going to drive over him. He attempted to
flex his chest muscles, but said he could feel or hear his ribs breaking as the
truck drove over him. Despite his injuries, which included some fractured ribs
and a broken pelvis, he attempted to stand up to chase the vehicle. Mr. Nadeau
was subsequently taken by ambulance to the Kelowna General Hospital to be
treated for his injuries. He remained in hospital for almost a month. He was in
a significant amount of pain and heavily medicated for at least part of the
time he was in the hospital. It appeared, while he was in court and either
observing the trial or giving his evidence, that he continues to suffer a good
deal of discomfort. I am not dealing with the issue of damages, but it would
appear that he has a significant claim. He was approximately 31 years of age at
the time of the accident and has not been working since the accident.

WAS THE VEHICLE THAT STRUCK MR. NADEAU OWNED BY THE DEFENDANT, EVA MUTANDA,
AND DRIVEN BY THE DEFENDANT, DOMINGOS USSENI?

[20]        
Mr. Nadeau did not have an opportunity to get a good look at the vehicle
that struck him. He saw the lights at some distance as the vehicle was
approaching. However, he only glimpsed the vehicle as it struck him and he went
underneath the vehicle. He rolled or tumbled underneath the vehicle as the
vehicle moved along and sustained significant injuries. He did get a chance to
notice the colour of the vehicle when the passenger’s door was open close to
his head. The interior light illuminated the inside of the door and he could
tell that it was black or dark in colour. He did have an opportunity to observe
the passenger who stepped out of the vehicle and was able to note that the
person was a black person. He could see that the vehicle had what he described
as “Nerf Bars” or a form of tubular running boards along the side of the
vehicle. He noted the Nerf Bars were silver in colour. He also noted that the
tires were a “beefy” tire or had course treads. When the vehicle passed over
him the second time and then left the scene, he was able to see the back of the
vehicle and could tell that it was an SUV-type vehicle.

[21]        
Mr. Nadeau’s evidence at the trial was that it was a Chevy-style
vehicle, and that from the back every make has a distinctive style. He said it
took him a couple of days after the accident before he was sure that it was a
Chevy. If every make has such a distinctive style, it is difficult to
understand why it took a couple of days before he could be sure whether it was
a Chevy.

[22]        
He identified photographs of the vehicle which was owned by Ms. Mutanda
in July 2005. These were photographs taken in 2008, when she no longer owned
the vehicle. He was adamant that the vehicle in these photographs was identical
to the vehicle that struck him.

[23]        
Mr. Nadeau had been drinking that evening and his blood alcohol level
was twice the legal limit. He was a seasoned drinker and described as having a
high tolerance for alcohol. He was tipsy, but he was not drunk and the other
witnesses did not indicate that he appeared intoxicated. He was certainly badly
injured and traumatized by the accident itself. He was angry about having been
run over and wanted to chase after the vehicle and attempted to get up to do
so. However, he was too badly injured to do so.

[24]        
Mr. Nadeau was unable to get a license plate number from the vehicle.

[25]        
Ms. Mutanda’s vehicle was a black Chevrolet SUV-type vehicle and had a
British Columbia license plate #756 EJD. Mr. Usseni had driven this vehicle
from the Lower Mainland to Kelowna to attend the concert. He had the permission
of his wife to use this vehicle. One of the witnesses, Mr. McMann, said that he
saw this vehicle at a motel in Kelowna the following day and got a license
plate number from it. He gave this license plate number to Mr. Nadeau, who was
in the hospital at the time. He wrote it on a card and left it for him to give
to the police.

[26]        
Mr. Nadeau was the only witness to the accident other than the occupants
of the vehicle. He gave a number of statements about the accident and the
vehicle.

[27]        
At the scene, his friend, Mr. Jong, attended immediately after the
accident and heard Mr. Nadeau say that it was a black SUV and made some comment
about black people. Mr. Nadeau could not recall speaking to the ambulance attendants
or the medical personnel in the days immediately following the accident. There
were records filed, being the crew report from the ambulance, which does not
add much. There was also an admission history and physical report from the
Kelowna General Hospital dictated July 2, 2005. This simply describes the
injuries and some social background, as well as the results of some laboratory
tests.

[28]        
Mr. McMann, an acquaintance of Mr. Nadeau’s, did attend immediately
after the accident. He recalls Mr. Nadeau mentioning a black SUV with Nerf
Bars.

[29]        
Sean Wylie, a retired member of the RCMP, but Staff Sergeant on July 5,
2005, was also in attendance at the accident immediately after it occurred. Mr.
Nadeau told him that he had been run over, perhaps by a dark coloured Escalade.
He made a note to that effect, but he did not recall the exact conversation. In
his handwritten notes he noted a dark coloured SUV – maybe an Escalade.

[30]        
The emergency room consultation and procedure report was dictated July
19, 2005 by the consultant doctor, Dr. Woychuk. This has a brief paragraph
called “History of Presenting Illness”. It is not clear where this information
came from, although it may have come from Mr. Nadeau. It does not add much to
the evidence about which vehicle struck Mr. Nadeau.

[31]        
There was a further consultation report dated July 4, 2005 by Dr.
Schuster. Mr. Nadeau does not recall meeting with Dr. Schuster, but it is
reasonable to assume that the clinical history came from Mr. Nadeau. He
described being run over by an SUV and he “… recalls everything about the
accident except the license plate of the vehicle.”

[32]        
Mr. Andrew Burpee, who was then an RCMP Corporal, now retired, spoke to
Mr. Nadeau at the hospital on July 2, 2005. He said Mr. Nadeau was apparently
in pain and medicated, and he did not feel it was appropriate to try and get a
statement from him on that occasion. He described him as quite uncomfortable
and groggy. Mr. Nadeau did, however, tell him on that occasion that the vehicle
was a black SUV, possibly a new Ford Explorer, but he was not sure, and that an
individual got out of the vehicle and that the person was possibly black.
Eventually the RCMP were unable to pursue their investigation because there was
no physical evidence and no witnesses other than Mr. Nadeau.

[33]        
RCMP Constable Stephen Moore spoke to Mr. Nadeau on July 4, 2005. This
occurred at the Kelowna General Hospital. Mr. Nadeau was in bed, he was
conscious and talkative. He described the vehicle as having passed over him, or
run over him, and that he got up after the vehicle passed over him. He
described the passenger as being a black person, about 5’ 6”. The vehicle was
described as a full size SUV, black in colour, that it may be a “Chev,” that he
thinks he saw a “Chev” emblem, and it had large “beefy” tires. He also said it
could be a Hummer-type vehicle. Constable Moore was of the opinion that Mr.
Nadeau was not in any condition to give a recorded statement at that time.

[34]        
Mr. Nadeau did give the police a piece of paper with a license plate
number on it. This was the license plate number for the Mutanda vehicle. Mr.
Nadeau has no recollection of how he got that license plate number, but Mr.
McMann was clear in his evidence that he gave it to Mr. Nadeau. Mr. Nadeau was
challenged in cross-examination about his earlier reluctance to name Mr. McMann
as the person he received the document from. It was suggested even at trial he
was reluctant to do so. My assessment of his evidence was that he did not have
any personal knowledge or recollection of who gave him the document, but has
since learned that it was Mr. McMann.

[35]        
On July 9, 2005, Mr. Nadeau gave a statement to RCMP Constable Wolstrom.
Mr. Nadeau was in the hospital, but they left the hospital with Mr. Nadeau in a
wheelchair. They went to a park across the street. He recognizes his signature
on the document which was marked as exhibit 5, but does not recall signing it.
This is not surprising given the length of time that has passed. At pages 5 and
6 of this statement, Mr. Nadeau mentions two memories:

The first memory I have is the vehicle ran me over with the
back passenger tire. Then broke my rib cage. Then they stopped, got out of the
vehicle and saw that they hit somebody, then they got in their vehicle and
drove away.

The second memory I have is: that
they drug me for 15 to 20 feet, while I screamed at them to stop. They stopped
their vehicle, got out and looked underneath. They realized they hit somebody,
so they got back into their vehicle, instead of pulling out from underneath,
they drove over me with the back passenger’s tire, then fled.

[36]        
In this statement he confirms that he did tell the people who came to
assist him that he had been run over by a black SUV.

[37]        
In the statement he describes the vehicle as a “Black SUV, Suburban or a
Yukon, I’m pretty sure it was a Chevy. It had big silver [Nerf] bars (running
boards).”

[38]        
He was asked to describe the occupants and his answer was “I couldn’t
tell you. There was blood in my eyes. I was in shock.”

[39]        
In his evidence at trial, he said he could not remember mentioning blood
in his eyes. In other statements, and in his evidence at trial, he described
the passenger who got out as a black person, and in some of the statements gave
evidence about his height and the clothing he was wearing. At trial, he
explained that when he gave this particular statement, he thought they were
asking him if he could identify the people inside the vehicle as they drove
away. However, I can only assume that he is trying to explain the statement
because earlier on he said he could not remember even giving the statement.

[40]        
He said that when he gave the statement he was in pain and simply wanted
to get back to the hospital. He said that his inability to describe the
occupants did not apply to the person who got out.

[41]        
On July 19, 2005, a letter was sent from Mr. Nadeau’s counsel to an ICBC
adjuster. Mr. Nadeau did not recall the statement, but did recall speaking to
his lawyer. In this statement he mentions the way in which the accident
occurred, but the only description of the vehicle is that it was a black SUV,
and that a black man got out of it at some point.

[42]        
Mr. Nadeau also gave a statement to an insurance adjuster on January 5,
2006. He did not recall giving that statement, but recognizes his signature on
a copy of that statement (exhibits 7 and 8), which appears to be a type-written
version of the same statement. In that statement, he gives a more detailed
description of the black male who got out of the vehicle as a “black male in
his early 20s with baggy jeans and a ball cap and a t-shirt over a basketball
jersey.” In the statement, he described the vehicle as “… a large model SUV,
black in colour.”

[43]        
He gave a further statement to RCMP Constable B. Singer on September 27,
2006. This has been marked as exhibit 9. Mr. Nadeau said exhibit 9 could be the
statement he gave.

[44]        
Mr. Nadeau was cross-examined about questions he gave during his
examination for discovery, and particularly Q.485. It was suggested to him that
he did not know if the vehicle was a Ford, a Chevy or a GMC and his answer was “No.”
At trial, he explained that answer by saying he thought he was being asked
whether he knew the type of vehicle while he was under the vehicle.

[45]        
In re-examination he was asked about the statement in which he mentioned
two memories. He said that he has no recollection of having two memories and
that he has one distinct memory which is about how the accident happened, and
that was the evidence he gave at trial.

[46]        
Mr. Nadeau’s statements varied depending on who he was talking to. That
is not unusual because the purpose for which people are asking him questions
may also vary. The medical providers are more interested in treating him rather
than the specifics of the accident. In addition, his physical and mental
condition varied over time from the initial treatment in the hospital when he
was medicated and in some pain. However, it would have been obvious to Mr.
Nadeau that the precise description of the vehicle was important when he was
speaking to the police or the adjuster. I accept that when Mr. Nadeau gives his
evidence about the photographs in exhibit 1, tab 9, that he believes the Nerf
Bars in that photograph and the vehicle was identical to the one that ran over
him. However, it should be noted that these photographs were taken
approximately two and a half years after the accident and while the vehicle was
owned by someone else. There is no evidence that there is anything particularly
distinctive about the Nerf Bars or the tires which were on that vehicle. I
would also note that from the photographs there is no Chevrolet badge on this
vehicle. The rear of the vehicle does have the word “Chevrolet” on it in small
letters that are smaller than the license plate numbers, and there is no reason
to believe that Mr. Nadeau would have been able to see that. In fact, his
evidence at the trial was that it was the shape of the vehicle that helped him
identify it as a Chevy product.

[47]        
There was evidence from some of the other witnesses that there were
perhaps two or three other similar vehicles, or perhaps even half a dozen, or
several similar vehicles at this concert. There is nothing particularly
distinctive about this vehicle other than it is a black Chevy SUV-type vehicle.
Despite Mr. Nadeau’s assertion that the vehicle in the photographs in exhibit 1
are identical to the vehicle that struck him, I find that he is not able to
give any better description, other than it was a black SUV-type vehicle,
perhaps a Chevy-type with Nerf Bars and “beefy” tires, and that one of the
occupants was black.

[48]        
Mr. Usseni gave evidence at the trial. He confirmed that he was
contacted by the RCMP in the fall of 2005 to ask whether he or the vehicle had
been in Kelowna on the July 1 long weekend. The RCMP first spoke to his wife
who was the owner of the vehicle and left a telephone number for him to contact
them. He contacted the RCMP immediately and acknowledged that in fact he and
the vehicle were at the concert on July 1, 2005 in Kelowna.

[49]        
He confirmed that he had the use of the vehicle with the consent of his
wife. His evidence is that Mr. James Mugambi, the brother of the concert
organizer, Tosh Mugambi, and James Kibigi, were with him. His evidence is that
he has known these individuals for a long time and has known Tosh Mugambi,
Tosh’s mother and sister, for many years.

[50]        
Ms. Mutanda also gave evidence and was cross-examined about her contact
with the RCMP. For some reason, the RCMP initially asked her about where the
vehicle was on the long weekend in May of 2005. They returned a second time and
asked her about where the vehicle was on July 1, 2005. She believed that the
vehicle was in the Vancouver area, and that her husband, Mr. Usseni, was also
in the Vancouver area. She was not definitive in her answers, but thought that
they had spent some time together, at least on one day of that weekend. She did
recall that her husband had taken the vehicle to Kamloops on the August long
weekend of that year for a soccer tournament. Even in her evidence at the
trial, her memory was unclear about the July 1 weekend. It was suggested to Mr.
Usseni that he had asked his wife to lie for him, but that is inconsistent with
him readily admitting that he was with the vehicle in Kelowna when he first
spoke to the police.

[51]        
Mr. Usseni’s evidence was that he had been invited to the concert by the
organizer, Tosh Mugambi, and that he had attended other concerts that Mr.
Mugambi had organized. He did not have a pass. When they arrived at the
concert, he says the vehicle was parked in the general parking area, and he,
James Mugambi, and James Kibigi walked through the main gate. They were
admitted by Tosh Mugambi’s mother. He said he did see Mr. Mugambi at the
concert, but Mr. Mugambi was quite busy. After the concert, he and James
Mugambi and James Kibigi went to Tosh Mugambi’s place, socialized for a while,
spent the night, and then returned to the Lower Mainland the following day. He
was adamant that the vehicle was with him throughout the entire time, and that
he would not have allowed James Mugambi to drive it.

[52]        
His evidence about how he learned of the accident was somewhat confusing
and unusual. When interviewed by the RCMP and at trial, he indicated that after
they had left the concert that he heard the two James talking about some
friend, advising them that somebody had been run over, perhaps by a white
Escalade, and that it occurred in what he said was the VIP parking area. I do
note that Staff Sergeant Wylie said he was alerted by a young black male that
somebody had been injured, and he went to the place where the accident occurred
with this young black male. When other people arrived, the young black male was
gone. The question arises whether this person could have told one of the James
about the accident, or told someone else who told them about the accident.
However, Mr. Usseni said it was his impression that they had received this
information from a friend who had heard it on the radio. This would have been
within an hour of the incident actually occurring. His memory of this is quite
indistinct. It is highly unlikely that the local radio station, or any radio
station, would have been alerted to and reported the accident within one hour
of it occurring.

[53]        
Tosh Mugambi’s evidence was led by filing his examination for discovery.
His evidence is problematic. I did not have the opportunity to observe him
giving his evidence and can make no comment about his demeanour. However, he
said that the security at the venue and the parking arrangements were arranged
by the owner or manager of the venue. This is inconsistent with that of Mr.
John Karroll who managed the property for the owners or occupiers. Mr.
Karroll’s evidence was clear that the concert organizers, in this case Mr.
Mugambi, would be responsible for providing security, and that they would set
up the VIP parking and any other parking arrangements in the manner in which
they saw fit. I accept Mr. Karroll’s evidence.

[54]        
Tosh Mugambi’s evidence was that he did not see his brother at the
concert, although he thinks he might have seen Mr. Kibigi. He denied that James
Mugambi and James Kibigi stayed at his residence that night. However, his
evidence was also that there were probably 30 or more people who were at his
residence and stayed, and they came and went and he did not really know who
they all were. He did say that after the concert he went out drinking, but
clearly at some point in time he returned to his home where there were a number
of people in attendance.

[55]        
Tosh Mugambi also denied any knowledge of Mr. Usseni. This seems unusual
because Mr. Usseni’s evidence is fairly detailed about his relationship with
Mr. Mugambi. He says he knows Mr. Mugambi and has known him for over 10 years.
He knows Mr. Mugambi’s brother, James, and Mr. Mugambi’s mother and sister. He
says he has been to Mr. Mugambi’s home in Kelowna in 2005, and at his mother’s
home in Kelowna. He also gave evidence that he had been to Mr. Mugambi’s
clothing store in Kelowna. Mr. Usseni’s wife knew of Mr. Mugambi, but did not
really know him herself. She thought that her husband might know Mr. Mugambi
through his activities in soccer. I am not sure why Mr. Tosh Mugambi would deny
any knowledge of Mr. Usseni, but Mr. Usseni’s evidence is certainly more
believable on that point.

[56]        
It would have been helpful to have evidence from Mr. James Kibigi and
Mr. James Mugambi. I was told at the beginning of the trial that some of the
parties were difficult to serve and had been served substitutionally. I am not
sure whether that applies to either these individuals. However, at his
examination for discovery, Tosh Mugambi confirmed that he did not speak to his
brother often, and that he thought he might live in the Vancouver area. He
believed his brother was in contact with his mother. His mother lived in
Kelowna, and there is no indication it would be difficult finding her and,
perhaps through her, finding Mr. James Mugambi.

[57]        
Mr. Tosh Mugambi, at his examination for discovery, gave evidence that
he was a good friend of Mr. James Kibigi’s, and that Mr. Kibigi was living
Grand Prairie, the same place Mr. Tosh Mugambi was living at the time of the
discovery. The discovery occurred in Grand Prairie. He gave evidence that he
sees Mr. Kibigi from time-to-time, and that it is unusual that his evidence was
not available. Mr. Kibigi filed a defence to these proceedings and was
represented by counsel.

[58]        
The onus is on the plaintiff to prove its case, including whether or not
Mr. Usseni was driving the vehicle that struck the plaintiff. Mr. Nadeau
suggests I draw an adverse inference because neither of these witnesses were
called, but in the absence of any evidence of the efforts to obtain their
evidence, either through examinations for discovery or demands to have them
produced for trial, or efforts to subpoena them as a witness for the plaintiff,
adverse or otherwise, I am not prepared to do so. It is of note that defences
were filed on their behalf and they were represented at the trial.

[59]        
Mr. Nadeau argued that I should reject Mr. Usseni’s evidence because his
evidence seemed to be inconsistent with that of Mr. Mugambi’s and common sense.
It was suggested that if he was such a good friend of Tosh Mugambi’s, the
organizer, and had Mr. Mugambi’s brother with him, that he would have had a
special pass and admission to any parking areas other than perhaps the VIP
area. It was suggested that he would have also had access to the VIP area itself
and he says he did not. It was suggested this was not believable because he
made comments about the trailer or motorhome used for performers to change, and
that perhaps they had another area where they relaxed in. It was suggested this
knowledge is inconsistent with not having access to that area. It was also
suggested that his evidence about Tosh’s mother letting him into the concert
was inaccurate because Tosh Mugambi said his mother did not have anything to do
with the concert. However, I do not place much weight on Mr. Tosh Mugambi’s
evidence.

[60]        
It was pointed out that in Mr. Usseni’s examination for discovery he
thought they had stayed two nights at the concert, and yet at trial he was
clear that they only stayed one night. His evidence at the examination for
discovery, however, was not very clear. He was asked whether he could have been
there three days after he said he thought it was two and he said it “… could
have been,” but he could not remember the exact numbers and simply that it was “normal”.
He did advise they were to stay longer, but the concert did not last as long as
expected.

[61]        
He was cross-examined about a sketch that he had produced of the concert
site. This was produced when he gave his statement to the insurance adjuster on
January 30, 2008; two and a half years after the accident. He was being
cross-examined about that statement and diagram almost five years after it was
created. On that document is an asterisk or a star which seems to be made in
the same area where the accident occurred. He was asked what that represented
and he said he simply could not remember at this time. It was suggested that
this was highly suspicious because the mark appeared to be in a similar area to
where the other sketches showed Mr. Nadeau being struck. It was suggested that
he would not know where this occurred unless he was actually driving or in the
vehicle at the time of the accident. It was suggested that it was his evidence
that he made all of the marks on that document. The sketch was put to Mr.
Usseni. I note the sketch was drawn on January 30, 2008; two and a half years
after the accident. This was also almost five years before the trial. He was
asked if the handwriting on the sketch was his and he agreed it was. He was
asked if it was all his handiwork, and his response was yes, that he was trying
to show what he remembered, but he is not a very good artist. During the trial,
he was having trouble remembering what some of the marks on the sketch might
be. I have listened to his evidence again, and it was not specifically put to
him that he had made this asterisk on the sketch, although that is a reasonable
inference.

[62]        
The significant passage of time, the understandable impact it has had on
people’s memories, the diminishment of those memories, and the absence of
witnesses who could have given evidence, creates problems in determining what
did happen on a balance of probabilities. The determination on the balance of
probabilities is simply a determination of something as being more likely true,
or that something being true is more likely than not. It is not close to proof
beyond a reasonable doubt. However, it is also more than a mere speculation or
a guess.

[63]        
Mr. Nadeau’s case against Mr. Usseni really relies on the evidence that
he was there with his wife’s vehicle, which was a black Chevy-type SUV. He
himself is black and at least one of his passengers, if not both, are also
black. The vehicle that struck Mr. Nadeau was a black SUV-type vehicle, perhaps
a Chevy, and that one of the passengers was a black person.

[64]        
The evidence about the license plate number is not of particular
assistance. It is admitted that Ms. Mutanda’s vehicle was there and that Mr.
Usseni had her permission to operate it. Mr. McMann said he obtained the
license plate number from the vehicle at a motel, but Mr. Usseni denies the
vehicle was ever there. This conflict in the evidence between Mr. McMann and
Mr. Usseni is problematic. It raises suspicions about Mr. Usseni’s evidence. I
ask why Mr. Usseni or Mr. McMann would lie about seeing the vehicle at a motel
the following day. The fact that it was at the motel, if that is the case, is
not evidence that the vehicle was involved in the accident, but does raise
questions about Mr. Usseni’s credibility. In his evidence at trial, Mr. McMann
expressed some fear or reluctance to go to the motel on his own because all
these black people would be there. He also explained that he did not give the
information directly to the RCMP because he did not want Mr. Tosh Mugambi to
know he had done so because Mr. Mugambi owed him money. He also said that he
was concerned that he might be the subject of a police investigation involving
the disappearance of somebody and did not want to come to the attention of the
police, although he had nothing to do with the disappearance of anyone. Mr.
McMann is presented as simply someone who knows Mr. Nadeau and an unbiased,
upright member of the community. However, his explanation for his conduct
certainly strikes me as odd.

[65]        
Mr. Nadeau’s confidence about his ability to identify the vehicle
increased over time, which is unusual. I am not suggesting that he is being
dishonest, but it raises some questions about the reliability of his evidence.
He seems to have become more certain that it was a Chevy-type vehicle after he
received the license plate number from Mr. McMann. It was also suggested that
Mr. Usseni’s evidence was not credible because of the conflicts between his
evidence and that of Mr. Tosh Mugambi’s. I do have some problems with Mr.
Usseni’s evidence, but not because of anything Tosh Mugambi may have said in
his examination for discovery. Mr. Tosh Mugambi’s evidence was inconsistent
with other witnesses on a number of points, and I am not satisfied his evidence
is reliable or credible.

[66]        
The most that can be said is that the vehicle owned by Ms. Mutanda that
was at the concert was similar to perhaps as many as a half of dozen other
vehicles also at the concert. It was not particularly distinctive. Mr. Nadeau
had very limited opportunity to make observations of the vehicle having just
been run over and considering the lack of light in the area where the accident
occurred. I have some suspicions about Mr. Usseni’s evidence about how he
learned of the accident, but his evidence was not very precise about that and
he did not give any evidence that he had heard about the accident by hearing it
on the radio himself. He simply had some vague recollection of how the two
James might have heard about it.

[67]        
Mr. Usseni’s evidence is that he did not have any special pass to get
into the concert or to park the vehicle in any particular area. It was
suggested that if he was with Tosh Mugambi’s brother and friend, Mr. Kibigi,
and if he was a friend of Tosh Mugambi’s, he would have had access to special
privileges, including access to the VIP area. However, this is inconsistent
with the evidence of Tosh Mugambi which Mr. Nadeau also relies on to refute Mr.
Usseni’s evidence that he stayed at Mr. Mugambi’s residence that night. I am
satisfied that Mr. Usseni did not have any special access privileges, including
access to the VIP area. He was able to enter the concert without having a
ticket or a pass because of his relationship or connection to Mr. Tosh Mugambi.

[68]        
Mr. Nadeau argues that I should draw an inference that the mark on
exhibit 11, the sketch prepared by Mr. Usseni, shows the place of the accident,
and Mr. Usseni could only have known that at the time he made the sketch if he
in fact was the person driving the vehicle that struck Mr. Nadeau. Mr. Usseni’s
evidence about the sketch is not very clear and, as I said earlier, probably
because of the amount of time that has passed from the accident and from the
time that the sketch was drawn. He did say that it was his handiwork, but it
was not put to him that he in fact placed the asterisk or star on that sketch.
He was asked about what it might mean and he simply could not remember. Mr.
Usseni did indicate that he was aware or heard about an incident that occurred
in what he described as the VIP area. This may be an explanation for why the asterisk
is on the sketch. He may have simply been asked to indicate what he knew or
what he had heard. This is equally consistent with him knowing indirectly where
the accident may have occurred.

[69]        
Mr. Usseni says that he was aware that the accident purportedly happened
around the VIP area, and that this was based on the discussions he heard
between the James. To infer that Mr. Usseni told the adjuster that the asterisk
marks the place of the accident, or admitted that he was the driver, would also
require that I infer somehow the adjuster had suppressed this evidence.
Alternatively, if the adjuster passed that evidence on to Mr. Usseni’s counsel,
that they were a party to the suppression of the evidence. I am not prepared to
draw the inference that this mark, whatever it was, indicates that Mr. Usseni
knew precisely where the accident happened, or that he was the driver of the
vehicle that ran over Mr. Nadeau.

[70]        
The absence of the evidence, particularly any evidence from Mr. James
Mugambi or Mr. James Kibigi, also raises some suspicions, but is not sufficient
for me to draw an adverse inference against anyone. Ultimately the onus was on
the plaintiff to prove its case on the balance of probabilities. This has been
made more difficult because of the difficulties Mr. Nadeau had identifying the
vehicle that struck him, the passage of time which has occurred, and the lack
of evidence from witnesses who might have been able to add something.

[71]        
The consequences of my decision are significant to both the plaintiff
and the defendants, Mr. Usseni and Ms. Mutanda. It is a matter that I have to
consider very seriously, and is not a decision that can be reached simply based
on speculation or inferences which are not sufficiently supported by the
evidence.

[72]        
After considering all of the evidence, I have concluded that the
plaintiff has failed to prove on a balance of probabilities that the vehicle
that struck him was the vehicle owned by Ms. Mutanda and that it was operated
by Mr. Usseni.

[73]        
I also find that the evidence does not support a conclusion that either
Mr. James Mugambi or Mr. James Kibigi were operating the vehicle. The plaintiff
acknowledged in submissions that there was no evidence that Mr. Mugambi or Mr.
Kibigi was driving the vehicle. Therefore, the claims against Mr. Usseni, Ms. Mutanda,
Mr. James Mugambi and Mr. James Kibigi are dismissed.

NEGLIGENCE

[74]        
Both defendants argue that whoever the driver of the vehicle was they
were not negligent. There is no merit to this argument.

[75]        
The place where the accident occurred has short scrub grass. None of it
was high enough to obscure a person sitting or squatting. It is also relatively
flat, despite the evidence given by Staff Sergeant Wylie about it being rolling
or uneven ground. Any unevenness in the ground was not enough to obscure a
person sitting or squatting.

[76]        
The accident occurred at night, but the vehicle had its lights on. Staff
Sergeant Wylie had trouble finding Mr. Nadeau after he was injured, but all he
had was a flashlight and Mr. Nadeau had been run over and was on the ground by
then.

[77]        
The plaintiff was squatting on the ground before the accident. However,
he was wearing a red t-shirt over a white shirt. The white sleeves were showing
and the red t-shirt had a large white emblem on the back. There was nothing to
obscure the headlights or the driver’s vision.

[78]        
Mr. Jong, a friend of Mr. Nadeau’s, obviously saw Mr. Nadeau when he was
leaving, a short time before. He stopped and spoke to Mr. Nadeau. It is not
clear whether Mr. Nadeau was standing or squatting at that time. However, Mr.
Nadeau was there to be seen. For some reason, the driver of the vehicle did not
see him. Failing to see the plaintiff and avoid running over him in those
circumstances was clearly negligent.

UNINSURED MOTORIST COVERAGE, WAS THE PLACE WHERE THE ACCIDENT OCCURRED A
“HIGHWAY”?

[79]        
The claim against ICBC directly is a claim pursuant to s. 24 of the Act.
Section 24(1) provides:

Remedy for damage in hit and run accident

24 (1) If bodily injury to or the death of a person or damage
to property arises out of the use or operation of a vehicle on a highway in
British Columbia and

(a) the names of both the owner and the driver of the
vehicle are not ascertainable, or

(b) the name of the driver is not ascertainable and the
owner is not liable to an action for damages for the injury, death or property
damage,

any person who has a cause of action

(c) as mentioned in paragraph (a), against the owner or the
driver, or

(d) as mentioned in paragraph (b), against the driver,

in respect of the bodily injury,
death or property damage may bring an action against the corporation as nominal
defendant, either alone or as a defendant with others alleged to be responsible
for the injury, death or property damage, but in an action in which the names
of both the owner and the driver of the vehicle are not known or ascertainable,
recovery for property damage is limited to the amount by which the damages
exceed the prescribed amount.

[80]        
Before a claim can be made pursuant to this section, the injury must
arise out of the use or occupation of a vehicle on a highway [emphasis
added].

[81]        
Section 1.1. of the Act defines “highway” as follows "highway"
means a highway as defined in the Motor Vehicle Act.

[82]        
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 defines “highway” as
follows:

"highway" includes

(a) every highway within the meaning of the Transportation
Act,

(b) every road, street, lane or right of way designed or
intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for
the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an
industrial road;

[83]        
In the present case, the issue is whether the place where the accident
happened falls within the definition of “highway” in s. 1(c) of that
definition. The defendant, ICBC, denies that the place where the accident
occurred was a “highway” on the basis that it is a private place to which the
public did not have access, or was not invited for the purposes of parking.

[84]        
The plaintiff and the defendants referred to a large number of cases dealing
with the definition of a highway. In chronological order they are as follows:

R. v. Joe (22 October 1969), Vancouver 222/69 (B.C.C.A.)

[85]        
In this case, an accused person had been convicted under an offence of
the Motor Vehicle Act of driving on a road without a license plate. The
road was on an Indian Reserve. An appeal to the County Court was allowed and
the conviction was overturned. The Crown appealed to the Court of Appeal and
their appeal was dismissed. In the circumstances of this case, it was
determined that the road was not a highway as defined under the Motor
Vehicle Act because it was not a road “used by the general public for the
passage of vehicles.”

[86]        
The court was considering a different portion of the section than we are
concerned with.

[87]        
The court found that the people who used the road did so for the
purposes incidental to the ownership of the property by the Indians. The road
was not for the use of the general public. The court commented that a private
road on a farm does not become a highway because some people use it to do
business with the farmer. The use must be for the public’s own use, not for
purposes connected to the Reserve.

R. v. Sport, [1971] B.C.J. No. 620 (County Court)

[88]        
In this case again, an accused person was charged with operating a motor
vehicle on a highway without a license. This occurred on a road on an Indian
Reserve. He was acquitted at trial and, on appeal by the Crown, the court found
the issue was whether the road on this Reserve was a highway. The Crown’s
appeal was allowed on the basis that in the circumstances of this case it was a
highway.

[89]        
The facts were that the road led to a campground and a picnic area as
well as some service stations along the road. The road was open to and used by
the public at the invitation of the Band. The court found that it was used by
members of the public for their own purposes and not for a purpose connected with
the Reserve. R. v. Joe was distinguished [paras. 16 and 17].

R. v. McMeekin, [1982] B.C.J. No. 727 (County Court)

[90]        
This case involved an appeal from a conviction under the Motor
Vehicle Act of driving without due care and attention. The accident occurred
in a parking area of an apartment complex. The accused was making a delivery.
The parking lot itself was marked as “tenants parking only” or “private”. There
was an area for visitor parking and there were signs indicating the lot was a
tow away zone. The court considered the definition of “highway” and the
definition of “public” and referred to R. v. Joe. The court said at
para. 12 that in British Columbia “general public access” is shown when members
of the public enter land for a purpose of their own rather than for a purpose
incidental to the ownership of the property.

[91]        
The court was concerned with the definition of a highway under the Motor
Vehicle Act, and referred to English authorities in paras. 6 and 7. The
English authorities talked about “public access” and a private road could fall
within the definition of a highway, if the public have access to it in the
sense that the owner tolerates the public use of that road. The use of the road
by trespassers would not fall within the definition of “public access”. In
para. 7, recording from Harrison v. Hill, [1932] S.C. (J.) 13, and the
comments of Lord Justice General Clyde, pp. 16-17:

In arriving at these conclusions I am partly influenced by
the broad consideration that, as the statute is intended for the protection of
the public, it is natural to suppose that the statutory traffic regulation
should apply to any road on which the public may be expected to be found. Hence
the inclusion of such private roads as the public (generally) is, as matter of
fact, allowed to use, and the exclusion of those which the public (generally)
cannot lawfully use at all.

[92]        
Further, at paras. 8 and 9, the court referred to the British Columbia Motor
Vehicle Act and examples of cases where private land had been held to be a
highway within that Act.

[8] The purpose of s. 149 of the Motor Vehicle Act is to
protect the public of British Columbia by punishing dangerous and careless
drivers. Logically the Act will seek to punish dangerous driving in places to
which the "public" has access. Past considerations of "access to
the general public" under the Motor Vehicle Act support this analysis.

[9] In Laroque v. Lutz and Vusko
[1980] 2 W.W.R. 97, Ruttan J. considered a logging road open to the public on
the weekends. He held that an accident occurred on a "highway" when
it happened during the time when the public could use the road. In Ries et al
v. Unger et al (unreported, B.C.S.C., June 9, 1980), Murray J. held that a
privately owned parking lot was a "highway" when used in conjunction
with a shopping centre and intended to be used by members of the public.

[93]        
The court also considered R. v. Joe and R. v. Sport in
paras. 10 and 11. The court also noted the difference between the British
Columbia approach and the English approach because the British Columbia law
deals with “general public access” not simply “public access”.

[94]        
The court noted that there are two definitions of “highway” in the Motor
Vehicle Act, and that they must be read differently because of the word
“general” in dealing with roads used for the general public and dealing with
roads used for passenger vehicles and the word “public” in dealing with parking
lots and service stations. The court went on and said at paras. 15 and 16:

[15] A working definition of "general public access"
from Joe and Sport and the dictionary could be:

"the unrestricted entry to all
members of the population within implied limits for a purpose unrelated
directly to the ownership of the land".

In the Motor Vehicle Act, this is further restricted to the
general public using land for the passage of vehicles. In contrast, combining
the Harrison discussion of the absence of the word "general", a
definition of "public access" could be:

"entry to all members of the
public who enter by legal right, or by implied or express permission of the
owner, and as a matter of fact the public enters the property unmolested by the
owner".

This definition would still exclude private property on to
which owners and guests drive but which the general driving public would not normally
enter. For example, the unfenced parking lot of an apartment building would be
open to public access. But a security-guarded underground parking lot to
another apartment building would not have public access because the owner
definitely does not allow unrestricted entrance.

[16] The distinction between
"general public" and "public" makes sense in that the
streets, lanes and highways are generally open to every member of the driving
population. Access to private property is logically a more restricted group who
enter by express or implied invitation. Under our legislation, this is further
reduced to only that group who enters for the purpose of parking or servicing
the vehicle or by public invitation. In the present case, the owner does not
offer this property to the public for parking nor is there an invitation to the
public to enter. It falls below the threshold of the Act’s definition and
should not be included as a highway. Accordingly the accused’s conviction
cannot stand and the appeal must be allowed.

[95]        
The private property becomes a highway if the public are invited to or
have access to it for the purposes of parking or servicing their vehicles.

[96]        
In dealing with this issue, it would be easy to focus on the definition
of “public” and whether the particular person was a member of the public. So
long as the private property is used for parking or servicing of vehicles at
the invitation of the person who controls it or the public has access to it for
those purposes, even if not a specific invitation, it will be a highway. The
property remains a highway even if members of the public who are not invited
use it as well. It remains a highway even if it is used for other purposes so
long as it is also used for the parking or servicing of vehicles again by invitation
or as a result of the public having access to the property for those purposes.

Spencer v. Lutkehaus, [1986] B.C.J. No. 130 (BCCA)

[97]        
In this case, a backhoe operator was on private property performing some
work. He had completed the work and was backing onto the driveway in order to
get back to the street. Unfortunately, he ran over a child when doing so.

[98]        
He had insurance to operate the backhoe on a highway, but the insurance
only applied if he was on a “highway”. The court found that the driveway did
not meet the objective standards of a highway in the Act. The court said that
it must be determined if it is a highway objectively, not simply based on the
subject of view of the person using it. The court found this was a private
driveway and not a highway.

[99]        
In the decision, Lambert J.A. noted that access need not be entirely
universal and that for instance a supermarket parking lot or a service station
is to be used only by patrons of the supermarket or of the service station.
However, a parking lot or a service station is still a “highway” within the
definition of the Motor Vehicle Act.

Galligos v. Louis, [1986] B.C.J. No. 1374 (BCCA)

[100]     In this
case, the road was on an Indian Reserve and was used for the purposes of the
seven or nine residences and its occupants. It was not used by the general
public for the passage of vehicles. The people who had business with the
residents, such as contractors, taxi services, political canvassers, or RCMP
officers had access. There was a private road sign on the road.

[101]     The court
found that the purposes for which the road was used were incidental to the
ownership of the property by the Indians and not by the general public for
their purposes which were not connected with the Reserve. Therefore, this was
not a “highway”.

[102]     The question
in the Galligos case, however, was whether or not the road fell within
the definition of “highway” under s. 1(b) not s. 1(c) which is the question in
the present case. We are not dealing with the passage of vehicles, we are
dealing with the parking of vehicles and it is not a matter of whether it is
used by the general public, but whether or not it is used by the public or
whether the public has access or is invited to use this private place for the
purposes of parking.

Jasal v. Hera, [1991] B.C.J. No. 3063

[103]     This
involved a parking lot on an industrial plant. The plant area was open to
employees, contract workers, and customers of the plant. The court found it was
intended that the public have access to this parking area in order to carry on
business with the company. Therefore, it did fall within the definition of a
highway.

Dechant v. TNL Equipment Ltd., [1998] B.C.J. No. 2219

[104]     This case
involved a collision on an access road leading to a trailer site. The plaintiff
and the defendant worked on the reconstruction of a highway and were living at
a ski hill. A portion of the ski hill was used as a trailer site or campground,
and the road was maintained by the ski hill. The site led to the main road.

[105]     The court
found that the camp road was not intended for use by the general public and
was, therefore, not a “highway”. The main road which provided access to the ski
hill itself for the public was a “highway”.

Insurance Corp. of British Columbia v. Bruneau (Guardian as litem of),
2000 BCSC 786

[106]     This case
arose out of an accident near or in Tumbler Ridge. A person operating a
snowmobile, which would be considered a motor vehicle, struck the plaintiff.
The accident occurred on a hill on unsurveyed Crown land near an intersection
of two streets. The area was frequently used by snowmobilers as a route to take
snowmobiles out-of-town. The court found that this did not make it a “highway”.
The court found that this was not the kind of path or passage that would be
used by the general public with insured vehicles. The court found that this was
not the type of situation where the Act intended to provide coverage in
the event of a collision of a vehicle which was uninsured.

Gallardo v. Insurance Corp. of British Columbia, 2007 BCPC 253

[107]     In this
case, the plaintiff had storage insurance on a vehicle. The vehicle was stored
at a parking lot. Members of the public could park in this lot upon the payment
of a fee. The storage insurance provided that the vehicle was not to be parked
on any highway. The court found that this parking lot was a highway because it
was a place to which the public either has access or was invited for the
purposes of parking or servicing vehicles. The public in this case included
people who paid for the parking. The court found that this was a highway.

0724969 B.C. Ltd. v. Insurance Corp. of British Columbia, 2010 BCSC
662

[108]     In this
case, the plaintiff was attempting to recover on a storage insurance contract.
The plaintiff had stored his vehicle on a parking lot used by Kal Tire and an
auto service business. The lot had four public entrances and used primarily,
but not exclusively, by customers of these businesses. The insurance was not
valid if the vehicle had been stored on a highway. The court referred to the Gallardo
decision and said that was a case of a private lot clearly intended to be
used by members of the public. After referring to the Gallardo case, the
court said in the circumstances it was faced with, the parking lot was intended
for use of the public to do business. However, there were no signs restricting
public parking or gates controlling entry. The public had unrestricted use or
access. The court found that this did mean that the parking lot fell within the
definition of a “highway” under the Motor Vehicle Act.

[109]     I have
reviewed the layout of the concert grounds earlier, but will do so now with
specific regard to the parking. The entire grounds consisted of a field or
pasture land with a permanent stage. Concert goers and anybody else attending
or having business at the concert would pass from a public road onto private
property through the area where the ticket wickets were set up. If they
continued approximately straight ahead on what I will refer to as the main
road, they would come to a fence that divided this first part of the property
from the area which included the stage, the beer garden and the concession
stands. There were two gates in this fence. This road led to the main gate. The
concert goers would park outside of this fence, somewhere in this field, and
then pass through the main gate on foot.

[110]     There was
a second road leading from the ticket wicket area. A person following that road
would proceed to the left, down towards another fence that ran along the
property, until they came to the same fence that I have described that had the
main gate in it. This was some distance from the main gate, and there was
another gate in the fence. There was nothing barring this gate. It was an
opening in the fence. Unless there was somebody there to control the entry,
vehicles could pass through this gate and they would be behind and to the side
of the stage. There was an area directly behind the stage which had been
fenced-off and had a gate that closed and security. This is described as the
VIP parking area. Some of the performers had motorhomes or trailers there where
they would change or get ready for their performances. Their equipment would be
stored in this area. Access to this area was strictly controlled throughout the
entire concert. The area to the side and back from the front of the stage,
which was between the VIP area and the fence with the two gates, was also used
for parking. It has been described as secondary parking, and the gate did allow
access to it as a secondary gate. It has also been described as “overflow
parking”. People did not have to be VIPs to have access to this area. The
evidence is unclear as to exactly what the restrictions were for parking in
this area, and I am satisfied that it was fairly fluid.

[111]     Mr. Tosh
Mugambi, the concert organizer’s evidence, was not particularly enlightening.
His evidence was that the owners of the venue set up, and managed and
controlled both parking and security. I find that is not the case. Mr. Mugambi’s
recollection of who had access to this area is not reliable.

[112]     The VIP
area was not open to the public, general or otherwise. This area would not fall
within the definition of “highway” in the Motor Vehicle Act. The general
parking was open to the public. They had access to this area and were invited
to use it for parking. It clearly fell within the definition of a “highway”
under the Motor Vehicle Act and the Act.

[113]     The
secondary parking area was certainly more open than the VIP area and not as
open to the public as the general parking area. However, the level of access to
this secondary parking area also seems to have varied throughout the concert.

[114]     On June
30, when Mr. Nadeau attended the concert with his friend, Mr. Jong, they parked
in an area that Mr. Jong described as an area where people with passes parked. However,
there is no evidence about what passes were needed, even when this area was
controlled by security. There were passes for security, crew, media, artists, guests,
all access and production. It is not even clear that everybody that entered
this area with a vehicle required a pass. They used their pass to get into this
parking area. On July 1, when they returned, Mr. Jong’s memory is that they
passed through the secondary gate and that he had to show a pass to security
people at this gate. He recalls there were a couple of rows of parked vehicles
in this area. He says that later in the evening, before the accident, when he
came and went, that there was no security at this gate, he was not stopped, and
was not required to provide any pass. Mr. Nadeau’s evidence as well is that he
does not recall any security at this gate later that evening on July 1, when
they attended. Mr. McMann’s evidence was that initially, in the secondary area,
people needed a pass to park in this area, but then things got slack. Mr. Tosh
Mugambi could only be sure that the VIP area was being strictly controlled.
There were a number of different kinds of passes. The concert goers had ticket
stubs, but there were a large number of different kinds of passes, artist
passes, VIP passes, guest passes, and the guest could be anybody, including
volunteers, or anybody who happened to receive a pass from either one of the
organizers or even the owners of the property who had a number of passes.

[115]     The area
has been described as a field and physically it was a field. It is private
property. However, it was being used as a parking lot when the accident
occurred. At some point during the concert, there was some control over who had
access to this area. However, that was not consistent throughout the concert,
and I am satisfied that by the evening of July 1, this secondary area was no
longer being controlled or restricted by the organizers or by security. The
public had access to this area for the purposes of parking. The primary parking
for the concert goers was in the general parking area, but there was no longer
any control or restrictions on parking in the secondary area. Therefore, I am
satisfied that for several hours before and, certainly at the time of the
accident, this was a place in which the public had access for the purposes of
parking. The public at this time included concert goers who might proceed
through this secondary gate and clearly included anyone who was there in order
to carry on the business of putting on or assisting in some way with the
concert, or their friends or supporters. The people that had access at that
time was a broad enough group to fall within the definition of the public in s.
1(c) of the Motor Vehicle Act.

CONTRIBUTORY NEGLIGENCE

[116]     Both
defendants argue that no matter who was driving the vehicle and, if the driver
of that vehicle was negligent, the plaintiff, Mr. Nadeau, was contributorily
negligent for failing to take steps for his own safety. They rely on the Negligence
Act.

[117]     Mr. Nadeau
was intoxicated, having twice the legal limit of alcohol in his blood for the
purposes of driving. However, he was still able to stand, walk, see a hazard,
and take steps to avoid it. He said he may have been tipsy, but he did not
appear drunk or significantly intoxicated to any of the other witnesses.

[118]     Mr. Nadeau
did see the lights of a vehicle approaching, but assumed that security would
redirect its movements or that they would see him and avoid hitting him. He was
not squatting on a road, but was squatting in a parking area where traffic
could be expected. He was aware that vehicles were coming and going, and just
before this his own friend, Mr. Jong, had driven through this area and stopped
to speak to him before leaving.

[119]     Mr. Nadeau
was distracted by the conversation he was having with his girlfriend over the
telephone. She was upset with him and he was trying to make it up to her. He
was also looking in an easterly direction over the lake and watching some
fireworks. He was aware that a vehicle was behind him, but was not paying
attention to the path it was taking. He did not look back to check on the
vehicle until just before it struck him.

[120]     Once the
vehicle struck him and stopped with Mr. Nadeau under the vehicle, there was very
little he could do to prevent the vehicle from continuing, the rear wheels
passing over his body again.

THE LAW

[121]     The
defendant, ICBC, pleads the provisions of the Negligence Act. This
provision is also pled on behalf of Ms. Mutanda and Mr. Usseni, James Mugambi
and James Kibigi.

[122]    
The Negligence Act provides as follows:

Apportionment of liability for damages

1 (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.

Awarding of damages

2 The awarding of damage or loss in every action to
which section 1 applies is governed by the following rules:

(a) the damage or loss, if any, sustained by each person
must be ascertained and expressed in dollars;

(b) the degree to which each person was at fault must be
ascertained and expressed as a percentage of the total fault;

(c) as between each person who has sustained damage or loss
and each other person who is liable to make good the damage or loss, the person
sustaining the damage or loss is entitled to recover from that other person the
percentage of the damage or loss sustained that corresponds to the degree of
fault of that other person;

(d) as between 2 persons each of whom has sustained damage
or loss and is entitled to recover a percentage of it from the other, the
amounts to which they are respectively entitled must be set off one against the
other, and if either person is entitled to a greater amount than the other, the
person is entitled to judgment against that other for the excess.

Apportionment of liability for costs

3 (1) Unless the court otherwise directs, the
liability for costs of the parties to every action is in the same proportion as
their respective liability to make good the damage or loss.

(2) Section 2 applies to the awarding of costs under this
section.

(3) If, as between 2 persons, one is entitled to a judgment
for an excess of damage or loss and the other to a judgment for an excess of
costs there is a further set off of the respective amounts and judgment must be
given accordingly.

…

Questions of fact

6 In every action the amount of damage or loss, the
fault, if any, and the degrees of fault are questions of fact.

[123]     Some of
the cases I was referred to, dealing with contributory negligence, including
the following:

Comeau v. Siemens, [1996] B.C.J. No. 1710

[124]     This
involved a plaintiff being struck while crossing a parking lot. The case really
depends on its facts. The defendant driver had entered the parking lot from the
street without paying proper attention and struck the plaintiff. There was
nothing negligent in the plaintiff’s actions in walking across the parking lot
to get to a street in broad daylight. The accident was caused by speed and
inattention of the driver and not by any negligence on the part of the
pedestrian.

Cempel v. Harrison Hot Springs Hotel Ltd., [1998] 6 W.W.R. 233, 43
B.C.L.R. (3d) 219

[125]    
In this case, the plaintiff, a 16-year old girl, climbed a fence to get
into a pool described as the “source pool” at a hot springs. The Court of
Appeal dealt with what was then the Contributory Negligence Act, and
said:

[19] I think that such an approach to apportionment is
wrong in law. 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.

[20] The approach to apportionment that I have
described is supported by the decisions of this Court in Ottosen v. Kasper
(1986), 37 C.C.L.T. 270 (see particularly at p.277) and Dao v. Sabatino (1996),
29 C.C.L.T. (2d) 62 (see particularly at p.75). In the Ottosen case the point
was put in these words:

The words used are the words of
fault. The question that affects apportionment, therefore, is the weight of
fault that should be attributed to each of the parties, not the weight of
causation.

See also G. Fridman, The Law of Torts in Canada (Toronto,
Carswell: 1989) vol.I pp.384-385; L. Klar, ed. Studies in Canadian Tort Law
(Toronto, Butterworth’s: 1977) p.156; and D. Cheifetz, Apportionment of Fault
in Tort (Aurora, Canada Law Book: 1981) p.100-101.

…

[24] In the apportionment
of fault there must be an assessment of the degree of the risk created by each
of the parties, including a consideration of the effect and potential effect of
occurrences within the risk, and including any increment in the risk brought
about by their conduct after the initial risk was created. The fault should
then be apportioned on the basis of the nature and extent of the departure from
the respective standards of care of each of the parties. In making that
apportionment in this case I would apportion 60% of the fault to the defendant,
Harrison Hot Springs Hotel, and 40% of the fault to the plaintiff, Cassandra
Cempel.

Araujo (Litigation guardian of) v. Vincent, 2012 BCSC 1836

[126]    
In this case, a high school student, 15 years of age, was crossing
through a parking lot on the school grounds. The defendant was sitting in his
truck in the parking lot. The plaintiff passed through the parking lot on her
way to school, a path taken by many students. She dropped her cell phone and
bent to pick it up. At that moment, the defendant driver backed his truck up
running over the plaintiff. The driver was found entirely liable for the
accident in the circumstances of that case. In dealing with the issue of
contributory negligence, the trial judge said:

[74] The plaintiff helpfully provided the Supreme
Court of Canada authority of Bow Valley Husky (Bermuda) Ltd. v. Saint John
Shipbuilding Ltd., [1997] 3 S.C.R. 1210. In that case, the Supreme Court of
Canada at para. 76 adopted the test for contributory negligence that was set
out by Denning L.J. in Jones v. Livox Quarries Ld., [1952] 2 Q.B. 608
(Eng. C.A.) at p. 615, as follows:

Although contributory negligence does not depend on a duty
of care, it does depend on foreseeability. Just as actionable negligence
requires the foreseeability of harm to others, so [too] contributory negligence
requires the foreseeability of harm to oneself. A person is guilty of
contributory negligence if he ought reasonably to have foreseen that, if he did
not act as a reasonable, prudent man, he might be hurt himself; and in his
reckonings he must take into account the possibility of others being careless.

[127]     In this
particular case, the plaintiff was in a field which was being used as a parking
lot. There were no particular lines or marks or any particular roadway in this
portion of the field.

[128]     The
plaintiff in the case at bar had been drinking and he knew that alcohol was
being served at this music concert. He was also aware that vehicles were coming
and going from this particular area and that it was dark. He was aware of the
vehicle moving in his direction, but assumed that either the driver of the
vehicle or somebody else, perhaps security personnel, would direct the vehicle
away from the area in which he was crouched down or squatting. He said he saw
the vehicle where it should not have been, yet turned his back on it.

[129]     It was
reasonable for Mr. Nadeau to expect the driver to keep a proper lookout.
However, in the circumstances, he should also have taken steps to protect
himself from the potential harm that could ensue if the driver did not do so.
It would have been a simple matter for him to have kept an eye on the vehicle
which he knew was travelling towards him. Although I am satisfied that the
driver of the vehicle must bear the majority of the responsibility for the
accident, Mr. Nadeau’s failure to keep a lookout in the circumstances, also
contributed to the accident.

[130]     I find his
lack of care did contribute to the accident when he was first struck by the
vehicle. However, as I have pointed out earlier, there was nothing he could
have done to prevent the rear wheels of the vehicle passing over him after it
had stopped with him still under the vehicle. I apportion the liability 85
percent against the driver and 15 percent against Mr. Nadeau. This
apportionment relates to the injuries he suffered when he was first struck by
the vehicle and before the rear wheels of the vehicle passed over him. This may
create some difficulties in determining which injuries were caused by which
incident, but in the particular circumstances of this case, there were two
distinct actions by the driver, the first of which Mr. Nadeau was contributory
negligent towards the second in which he was not.

COSTS

[131]     The
parties have not addressed the issue of costs and, if there is any issue with
my following directions with regard to costs, they are certainly at liberty to
make further submissions.

[132]     I am not
aware of any special circumstances that might affect the exercise of my
discretion to award costs. Pursuant to Rule 14-1(9) of the Supreme Court
Civil Rules (the “Civil Rules”), costs are awarded to the successful
party unless the court otherwise orders. The Negligence Act would, of
course, apply with regard to the entitlement to costs. The liability for costs
is the same proportion as the parties’ liability to make good the damages or
loss [s. 3, Negligence Act].

[133]     Therefore,
subject to any submissions or arguments of which I am not aware and, in order
to assist the parties, I order that Ms. Mutanda and Mr. Usseni recover costs at
Scale B from the plaintiff. There will be only one bill of costs as they were
represented by the same solicitor.

[134]     The
defendants, James Kibigi and James Mugambi, were both represented by the
solicitor for the defendant, ICBC. Their costs will be limited to any
additional steps which were taken in their defence over and above the steps
taken in the defence of ICBC. They will not receive any costs related to the
trial because there was nothing which was done on their behalf other than the
utterance of a few words. Their solicitor was there in any event representing
the defendant, ICBC.

[135]     . I order
that the plaintiff recover 85 percent of his costs from the defendant, ICBC, at
Scale B. I also order that the plaintiff recover the costs he is required to
pay to Mr. Usseni and James Mugambi and James Kibigi from the defendant, ICBC.
I am satisfied that this is one of those cases which fall within Rule 14-1(8)
of the Civil Rules, where the plaintiff should recover the costs it pays
to those defendants as a disbursement in its bill of costs against the
defendant, ICBC.

[136]     The
central issue in this proceeding on liability was which vehicle struck the
plaintiff and who was operating that vehicle. If it was not the vehicle owned
by Ms. Mutanda and driven by Mr. Usseni, then it would be a vehicle operated by
an unidentified driver. The only question with regard to liability of the
defendant, ICBC, for the unidentified driver, was whether the accident occurred
on a highway so that s. 24 of the Act applied. Of course, the extent of
the negligence of the operator and of Mr. Nadeau were also in issue, but those
were in issue in any event.

[137]     In this
case, not only was it reasonable for the plaintiff to bring its action against
Mr. Usseni and Ms. Mutanda, James Kibigi and James Mugambi, as well as ICBC
pursuant to s. 24 of the Act, it was the only course available to the
plaintiff. There were real and legitimate issues of fact as well as issues of
law that could not be resolved without a proper trial. The cause of action
against each defendant was the same. The only issue was which defendant was
liable depending on findings of fact.

[138]     In my
opinion, it would be unfair to require the plaintiff to pay the costs of Mr.
Usseni, Ms. Mutanda, James Kibigi and James Mugambi, without the ability to
recover those costs from the unknown driver, or in this case, ICBC, pursuant to
their liability under s. 24 of the Act.

[139]    
As I said earlier, this order is made without the benefit of further
submissions on costs or awareness of any particular or special circumstances
that counsel would wish to address that deal with the issue of costs. If
counsel are unable to agree to an order in the terms that I have specified or
some other order, they should communicate with Supreme Court Scheduling to
determine how those matters can be addressed.

“R.E. Powers J.”

POWERS J.