IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130429

Docket: M121318

Registry:
Vancouver

Between:

Richard Talbot

Plaintiff

And

Magdalena
Kijanowska

Defendant

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
The issue in this case is liability for injuries sustained by the
plaintiff as a pedestrian in an accident with a vehicle operated by the
defendant. The trial of the issue of liability was severed from the
determination of damages and ordered to be tried first.

[2]            
The defendant denies liability for the accident.

[3]            
The accident occurred on March 27, 2010 at the intersection of an
alleyway between West Seventh Avenue and West Eighth Avenue on Trutch Street
(“Trutch”) in a quiet residential area of Vancouver at approximately 9:00 p.m.

[4]            
The plaintiff is 38 years of age. He resides approximately one block to
the east of the intersection of the alleyway and Trutch. The back of his house
faces onto the alleyway.

[5]            
Mr. Talbot testified he did not work on the day of the accident. Around
4:00 p.m. he had a beer and barbecued his dinner. He testified he consumed five
beers that evening and then decided to head to a bar on Broadway Avenue to
watch a martial arts boxing match. He left his house and walked down the
alleyway. He said he was not in a hurry and that it was a clear dark night.

[6]            
Mr. Talbot testified that the intersection of the alleyway and Trutch is
lit by an overhead streetlight. As he left the alleyway to head across Trutch he
slowed his pace. He looked to his left, then to his right and then back to his
left. He said that when he looked to his right he saw a vehicle to the north of
the intersection of Seventh Avenue and Trutch.

[7]            
Mr. Talbot testified that he was roughly east of the center line of the
road when he was struck. He remembers taking a few steps into the street before
feeling the impact.

[8]            
Mr. Talbot said he blacked out and then woke up to pain. He testified he
saw headlights in front of him and he then saw a lady get out of the car. He claimed,
“[she] kicked me and told me to get off the road or get out of the street or
something.”

[9]            
When asked about his memory of the incident, Mr. Talbot testified that he
did not recall much after the point of impact. He did remember telling the
person who kicked him not to touch him. He then screamed out for someone to
call 911. He recalled someone informing him that they had already contacted 911.

[10]        
In cross examination, defence counsel suggested to Mr. Talbot that he
was intoxicated before the accident. Mr. Talbot would not say he was sober but
he maintained that he felt in control and “like a normal person” at the time. He
was not slurring his speech or falling over. Mr. Talbot did not recall the
specific number of beers he consumed that evening and he did not recall when he
stopped drinking before he left home. He also did not remember whether he was
wearing headphones and listening to music at the time of the accident. He
agreed he did not recall which part of the car he came into contact with or
what part of his body struck the car.

[11]        
It was suggested to Mr. Talbot that if someone said he struck the side
of the vehicle he could not refute such a statement. Mr. Talbot responded by
stating he did not think he would have sustained the injuries he did if he had
struck the side of the vehicle. He also recalled looking at the vehicle’s
headlights, which were moving in his direction.

[12]        
Mr. Talbot suffered two fractures in his right arm, both above and below
his elbow as well as scrapes to his head, right knee, leg and right hand. He
was taken from the accident scene to Vancouver General Hospital by ambulance.

[13]        
The defendant, Ms. Kijanowska, was driving south on Trutch, a route she
was familiar with as she drove it three to four times a week. She was alone in
her vehicle at the time of the accident. She testified it was dark and the
roadway was dry.

[14]        
Ms. Kijanowska said that as she proceeded south on Trutch, she stopped
at a stop sign where Trutch intersects with Sixth Avenue. After stopping, she
proceeded south. As she approached Seventh Avenue she took a quick look at her
speedometer and noted she was traveling at 22 to 23 kph. She testified that as
she approached the intersection of the alleyway she checked to both her left
and right and did not see anyone. She proceeded and was “almost in the middle
of the intersection” when she saw, out of the corner of her eye, a “faint
movement” of what she thought was “like a running person” in a position of
about “10 to 11 o’clock” to her vehicle ─ in other words, to the left and
slightly ahead of her. She immediately responded by applying her brakes. She could
not recall how far her vehicle traveled forward but she believed it stopped
almost immediately. Before it stopped, she felt a bump on the left side of her vehicle.
She believed the plaintiff hit her vehicle between the front and left rear
door. She said she heard and felt the bump.

[15]        
Ms. Kijanowska testified she got out of her car and saw the plaintiff
lying on the street with his head facing the back door of her vehicle. She
asked him if she could help. He yelled “don’t touch me, don’t touch me”. She
testified a woman approached her and informed her she had called 911. She then
waited for emergency services to arrive with the woman.

[16]        
Ms. Kijanowska testified that while she had not checked her speed at the
time of the accident, she estimated she was driving between 25 to 27 kph. She arrived
at this estimate based on her endeavour several days after the incident to re-enact
what had occurred. She also based her estimate on the speed she had observed
she was driving at before she approached the intersection of Seventh Avenue and
Trutch.

[17]        
When Ms. Kijanowska originally reported the accident to ICBC, she had
told the adjuster that she had been traveling 20 kph at the time of impact.
Following her re-enactment she contacted the adjuster and told him she thought her
speed was more in the range of 27 kph.

[18]        
Ms. Kijanowska testified there were no cars parked on the east side of Trutch.
There were some cars parked on the west side but there were no cars parked on
either side of the road in the vicinity of the mouth of the alleyway. She
acknowledged that the mouth of the alleyway was somewhat obstructed by a hedge
and streetlamp pole; she claimed it was otherwise well lit.

[19]        
Ms. Kijanowska maintained that at no time did she kick, touch or
otherwise come into physical contact with the plaintiff. Nor did she tell him
to get up. She said when she approached him he was moaning. She observed headphones
lying on the street by the left side of his head. She could hear music coming
from the headphones. She had the impression his clothing were “dark”.

[20]        
Ms. Kijanowska was interviewed by the police at the accident scene and
again later at her daughter’s place of work where she went following the
accident.

[21]        
In cross examination, Ms. Kijanowska testified the speed limit on Trutch
was 30 kph. She said that while she traveled on Trutch regularly, she did not
often see people walking on the sidewalks adjacent to the street. She may have
seen people from time to time cross Trutch between Seventh and Eighth Avenue
but she did not remember any specific occasion.

[22]        
Again she confirmed the intersection was well lit and there was nothing
to block her view of the alleyway other than a telephone pole and a lamp pole on
the north side of the intersection of the alleyway with Trutch.

[23]        
She testified that her vehicle had already entered the intersection with
the alleyway when she first saw the plaintiff. At that moment, she believed he was
already in the middle of the intersection, about one to two metres away from
her vehicle. She agreed that in her examination for discovery she placed his
distance at “probably 1 metre” away. When asked to explain the difference in
her estimate of distance she said she had not thought about the issue of
distance before her examination for discovery. She said she was not expecting
to be asked that question. Since that time, she has thought more about the
distance between her vehicle and Mr. Talbot. She said she could not be sure but
she believed the distance was greater than one metre.

[24]        
She also was unable to locate Mr. Talbot’s specific position on the
street when she first saw him. She said she thought he was in a “running
posture” but that she did not have enough time to notice if he had been running.

[25]        
Ms. Kijanowska maintained her vehicle traveled “maybe 1 metre” after
coming into contact with Mr. Talbot. She also claimed no screech sound emanated
from her tires on the pavement when she braked.

[26]        
The defence called two persons that resided in the close vicinity to the
accident who heard the screech of tires from Ms. Kijanowska’s vehicle. Ms.
Cynthia Butler resided in a house on the west side of Trutch just to the south
of the alleyway. She testified she heard a short screech of brakes and a thump.
She went outside to see what had happened. She saw a car stopped and a
pedestrian on the ground. She called 911. She said the man on the ground was
screaming “don’t touch me, don’t touch me” and he was “thrashing” about from
side to side. She stayed with the plaintiff for five to ten minutes assisting
the 911 operator with assessing his condition. She then approached the
defendant who appeared shaken and upset.

[27]        
Ms. Butler located the defendant’s car as partially blocking the west
side of the alleyway. She testified that the alleyway on the west side of
Trutch is offset to the south. That is, when proceeding along the alleyway from
east to west, the alleyway entrance west of Trutch is offset somewhat to the
south of the alley east of Trutch. Ms. Butler testified the plaintiff was lying
on the roadway about half way down the driver’s side of the vehicle and about six
feet from the vehicle. His head was closest to the vehicle and his feet were facing
away from it.

[28]        
She testified the back of the plaintiff’s car was just past the north
side of the alleyway on the west side of Trutch.

[29]        
Mr. Sebastian Demers who resided in the immediate vicinity of the
accident also heard a “rather short” screech of tires and a thump. He went
outside to investigate. He observed the plaintiff lying on the ground rocking
himself and looking in pain. He said he tried to assist the plaintiff who
yelled not to touch him.

[30]        
Mr. Demers also placed the plaintiff’s position on the ground as
perpendicular to and at the midpoint of the driver’s side of the defendant’s
vehicle. He also saw headphones on the ground beside the plaintiff.

[31]        
Both Ms. Butler and Mr. Demers described the area as generally quiet
with few pedestrians on the street at night.

Discussion

[32]        
Both parties were under a duty to keep a proper lookout and to take
reasonable care to avoid an accident.

[33]        
The defendant was required to drive her vehicle in a reasonable, prudent
and safe manner and in accordance with the circumstances that confronted her: Merrick
v. Baxter, [1990] B.C.J. No. 143, 1990 CarswellBC 1422 (C.A).

[34]        
It is acknowledged by Mr. Talbot that he was not crossing the street at
a crosswalk, marked or unmarked, at the time he struck or was struck by Ms.
Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a
common law duty on a person in Mr. Talbot’s position to take care of his own
safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309,
48 M.V.R. (3d) 56 (S.C.) at para. 17.

[35]        
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 codifies the duty of
pedestrians and drivers to take reasonable care of themselves and for the safety
of others. Sections 179(2), 180 and 181(a) provide as follows:

Rights of way between vehicle and pedestrian

179 …

(2) A pedestrian must not leave a curb or other place of
safety and walk or run into the path of a vehicle that is so close it is
impracticable for the driver to yield the right-of-way.

…

Crossing at other than crosswalk

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.

Duty of driver

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, …

[36]        
Both Mr. Talbot and Ms. Kijanowska endeavored to reconstruct how the
accident occurred to the best of their recollections.

[37]        
I prefer and accept the evidence of Ms. Kijanowska as to the
circumstances in which the accident occurred. I accept her evidence that she
was traveling approximately 27 kph and that she saw Mr. Talbot just as she
approached the mouth of the alleyway. I accept that when she saw him, he was
within a metre or two of the left-hand side of her vehicle, that he was moving
toward her and that he hit her vehicle about midpoint on the left hand side.
Much of Ms. Kijanowska’s evidence was corroborated by Ms. Butler and Mr. Demers,
who testified to the short duration of the screech of tires and the location
where Mr. Talbot was lying on the pavement after the accident.

[38]        
The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking
to his right must have come from Ms. Kijanowska’s approaching vehicle. There
were no other vehicles on the roadway at the time. Mr. Talbot was unable to
explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him
after having first observed it about one block away. Mr. Talbot was not able to
refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s
vehicle.

[39]        
The only conclusion that I can draw from these unfortunate circumstances
is that Mr. Talbot was simply not paying attention or having regard to his own
safety when he left the alleyway and walked onto Trutch. He may very well have
been distracted by listening to music on his headphones, which were observed
lying on the ground next to him.

Accordingly, on the facts as I find them I cannot attribute
negligence to the defendant. I conclude the accident of March 27, 2010 was
caused solely by the negligence of Mr. Talbot in failing to take care of his
own safety by keeping a proper lookout as he left the alleyway and walked onto
Trutch and into Ms. Kijanowska’s vehicle.

[40]        
The plaintiff’s action is dismissed. In the ordinary course the
defendant would be entitled to costs. If there are matters of which I am
unaware counsel may speak to the issue.

“Greyell
J.”