IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130516

Docket: 11347

Registry:
Nelson

Between:

Jennifer Scott

Plaintiff

And

John Lewis Brown

Defendant

And

Valerie
Scott

Third
Party

– and –

Docket: 11348

Registry:
Nelson

Between:

Raylee Armstrong

Plaintiff

And

John Lewis Brown

Defendant

And

Yvonne
Schoff

Third
Party

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]            
These actions, ordered to be tried together, concern liability for
damages arising out of the collision in 2003 between a sled, ridden by two
young girls, and a pick-up truck driven by the defendant.  The defendant, who
was 69 years old at the time of the accident and whose health was not good, was
deposed in 2005 prior to the trial and is now deceased.  The girls were nine
and ten years old at the time of the accident and suffered various injuries. 
Both testified at trial.  The girls’ mothers were joined as third parties but
the action was discontinued against them prior to trial.

[2]            
The plaintiffs contend that the collision was entirely the defendant’s
fault.  The defendant takes the position that the plaintiffs have failed to
establish negligence or causation.  In the alternative, if the defendant’s
actions contributed to the accident, the plaintiffs are substantially more to
blame.

[3]            
The accident took place in Nakusp, British Columbia, on November 25,
2003, at about 5:00 p.m.  It was snowing heavily.  The two girls, half-sisters,
were returning home from sledding at a nearby hill after school, accompanied by
Ms. Scott’s large black dog, Rocco.  They walked a friend home and then started
down the hill on 4^th Street to their respective homes.  They had
borrowed a GT racer from a friend.  It had a seat to sit on and wide runners to
stand on, with a front ski and steering wheel.  Ms. Armstrong was seated on it
and Ms. Scott was standing behind her.  The hill westward down 4^th
Street is gradual, about a five degree slope.  2^nd Avenue meets 4^th
Street at the bottom of the hill at a T-intersection, but except as a point of
reference, the cross street is not of significance in this collision.

[4]            
The following paragraphs are from an agreed statement of facts entered
as an exhibit.  References to photographs and diagrams have been omitted:

5.       The
Collision occurred on 4^th Street, near the intersection with 2^nd
Avenue.  4^th Street runs east-west and forms a T-intersection where
2^nd Avenue intersects from the south (the “Intersection”).

6.       At the
time of the Collision, the Defendant owned and was driving a 1995 Toyota
pick-up truck (the “Truck”) eastbound on 4^th Street.

7.       On the
afternoon of November 25, 2003, Jennifer, Raylee and a third friend had been
tobogganing at a hill in Nakusp.  After finishing that, Jennifer and Raylee
accompanied the third girl to her home and were then proceeding westbound on 4^th
Street on their way to their homes.

8.       4^th
Street east of 2^nd Avenue slopes down towards the Intersection and
Jennifer and Raylee were riding a snow sled (the “Sled”) westbound down 4^th
Street.  Raylee was sitting at the front of the Sled and Jennifer was standing
behind her with her hands on Raylee’s shoulders and with her feet on the Sled
runners.  It was snowing heavily and visibility was very limited.

9.       The
front of the Truck struck the Sled and both Plaintiffs.

10.     Snow was
piled up on both sides of 4^th Street.

…

12.     There is
a streetlight near the northwest corner of the Intersection which was lit at
the time of the Accident.

13.     Traffic
traveling north on 2^nd Avenue faces a stop sign at 4^th
Street.  There is no stop sign at 2^nd Avenue for traffic travelling
along 4^th Street.

14.     Neither
4^th Street nor 2^nd Avenue has sidewalks.

15.     The Defendant
said he was driving 47 km/h in the moments before the Collision.  The speed
limit along 4^th Avenue near the Intersection is 50 km/h.

…

19.     After
the Collision, the Truck stopped east of the Intersection.  Raylee was
underneath the Truck in or near the front driver’s side wheel-well.  Rocco was
underneath the Truck near the rear axle.  Jennifer was on the road behind the
Truck in the northwest corner of the Intersection.

…

24.     The
Defendant had lived in the Nakusp region for most of his life and in Nakusp
since 1988 or 1989.  At the time of the Collision, the Defendant had lived on 1^st
Avenue, near Fourth Street, or roughly 1-2 blocks from the Intersection, for
approximately 5 years.  He was very familiar with the Intersection, and would
have driven along this section of 4^th Street hundreds of times prior
to the Collision.

25.     At the
time of the Collision it was snowing heavily and the road was covered with
snow.

…

27.     Jennifer
was born in Nakusp and lived at 312 Second Avenue, three houses south of the
Intersection.

28.     Jennifer
suffered a variety of injuries in the Collision including:

a.       Fractures
to her face, including her nasal, erthmoid (bone at the roof of the nose) and
left zygoma (cheek) bone;

b.       Fracture
to the left elbow;

c.       Complex
comminuted fracture of the distal femur; and

d.       Fractures
of the lateral knee cap, tibial plateau and proximal tibial shaft.

29.     Raylee
was born in Alberta and moved to Nakusp approximately two years prior to the
Accident.  She lived at 311 Fourth Avenue, just over two blocks from the
Intersection.

30.     Raylee
suffered a variety of injuries in the Collision including:

a.       Lacerations
to her left cheek;

b.       Fracture
to the right wrist; and

c.       Lacerations
and ligamentous injuries to her left knee.

[5]            
Throughout the oral evidence given at trial, despite the use of “sled”
in the Agreed Statement of Facts, “toboggan” was used as a general term to
cover sleds, sleighs, and toboggans.

[6]            
Jennifer Scott, now 20 years old, testified that she remembered very
little of the accident and could not distinguish between what was a memory and
what she had been told.  She said she had been taught to stop, look and listen
at cross walks, to pay attention, and if a vehicle was coming, to move way
over.  She knew she should walk on the left facing traffic.  She was allowed to
play road hockey and roller blade on the road.  Although the usual hill to use for
tobogganing was one called “Stevie’s Hill”, she was never taught not to
toboggan on 4^th Street.  She said it was common for kids to toboggan
anywhere.  She agreed that her mother did not know she had tobogganed on the 4^th
Street hill.  She acknowledged that she had done an earlier run down the hill that
evening and had been on the left-hand side of the road.  There were no further details
of that event offered in evidence.

[7]            
Ms. Scott acknowledged that she knew better than to go down a hill if
she saw lights coming, and that she ought to have been able to see headlights
all the way down to 6^th Avenue – that is four blocks beyond the
accident scene to the west.

[8]            
Valerie Scott, Jennifer Scott’s mother, testified that her daughter
lived in Nakusp her whole life.  The town is small, about 1,500 people, and
children play in the streets.  She learned of the accident when the defendant, John
Brown, came to her door and said he had hit some girls.  She ran to the scene. 
She said her daughter was 25 to 30 feet behind the truck.

[9]            
She had taught her daughter to watch for cars, get off the road, walk
facing traffic, stop at stop signs and look before crossing.  She had allowed
Jennifer to do one or two runs on the 4^th Street hill when she was five
or six when she was there herself.  She agreed with her discovery evidence that
she had told Jennifer not to sleigh on public streets, although she had not
told her that day.

[10]        
Raylee Armstrong, born in 1993, recalls nothing of the accident.  She testified
she did not recall learning the rules of the road, but is sure she heard “stop,
look and listen”.  She was aware that it would be dangerous to toboggan down a
street with cars coming and that she should check for cars before going down.

[11]        
Yvonne Schoff, Raylee Armstrong’s mother, testified that Ms. Armstrong
has always lived in small towns or in the country.  She did not teach her a lot
about road safety as they were mainly out of town on a farm.  She taught her to
stay to the side of the road or on the sidewalk when in town.  She did not
teach her not to play on the road, as all the kids played on the road.  She
said if Raylee had asked her about tobogganing on a street she would not have
accepted it but they did not discuss it.  She learned of the accident when a
friend called her and she ran to the scene.

[12]        
According to their mothers, Ms. Scott had on blue clothing; Ms.
Armstrong was wearing a blue jacket and pink snow pants.

[13]        
The defendant testified that he was returning from a trip to Vernon, and
turned onto the residential street about six blocks from the collision site,
travelling east.  It was quiet, with no traffic.  He said he checked his
speedometer and noted he was going about 27 miles per hour, which he thought
was approximately 47 kph.  The road was covered in snow and was slippery.  The
snow was falling heavily in big wet flakes, making it difficult to see.  The
conditions were some of the worst he had seen.  Visibility was about 100 – 200
feet.  His tires had good traction.

[14]        
Mr. Brown had his lights on dim, as headlights on high beam reflected
even more brightly off the snow.  He said the light from his headlights
projected 100 – 200 feet.  He could see the streetlights four blocks away but
could not see anything in between the lights as he drove toward them.  As he
went under the streetlights, the downward cast light made it even more
difficult to see.  He slowed down a bit and considered lowering his speed,
given the weather conditions.  He said he wasn’t flying up the street, but he
was going at “a good clip”, given the conditions.

[15]        
As he went through the intersection at 2^nd Ave, about halfway
through the street light, a black object came “flying out of the darkness” going
“at a good clip” towards him.  He testified that there was a split second
between seeing the object and the impact.  He had no time to do anything but
slam on his brakes.  He testified that he knew as soon as he hit them that it
was kids sleigh riding – “it had to be”, he said.

[16]        
Mr. Brown testified that after he slammed on his brakes, he slid 15 – 20
feet before the impact, and came to a stop with the rear end of his truck about
10 feet from the east side of the intersection.  He said the truck ended up
about where the object was when he first saw it.  Ms. Armstrong was pushed
forward by the front left wheel.  Ms. Scott was across the intersection behind
the truck, toward the left side of the road, maybe six to ten feet behind,
although he was uncertain of her exact location.  He never did see Rocco, the
dog, who was under the truck and unfortunately had to be put down after the
accident.

[17]        
Mr. Bruneau, a resident of Nakusp for 25 years, came by after the
accident, travelling down the hill in the same direction as the sled.  He said
it was snowing and the road conditions were slippery.  Visibility was “not the
greatest” but he could see the aftermath of the accident when he was halfway down
the hill.  He could not confidently give any estimates of positions, but said
Ms. Scott was 20 to 40 feet behind the truck.  He said he drove that street
regularly and did not recall ever seeing children sledding or tobogganing on
that hill, although he acknowledged it is common in Nakusp to see people
walking on the roads, riding bikes, and playing ball hockey, day or night,
winter or summer.

[18]        
No measurements or photographs were taken the night of the accident, but
the attending officer did a not-to-scale diagram showing the approximate
location of the truck, and the plaintiffs when he arrived.  The officer was not
called as a witness but his diagram was admitted by agreement.  The rough
diagram shows Ms. Scott’s position at about one truck length behind the
truck.  According to the plaintiff’s expert, the truck is five meters in
length.  None of the pictures or diagrams show other street lights to the east
of the intersection, that is, on the block up the hill where the girls began
their descent.

[19]        
The brake pedals on the sled were bent; the skis were gouged and broken,
and the frame and bench were twisted.  One of the lights beside the left
headlight of the truck was cracked, and the left corner of the plastic front bumper
was broken.  Both right and left corners of the plastic molding under the truck
were damaged.  It is not clear from the evidence what, if any, of this damage
occurred in this incident.

[20]        
The plaintiffs retained an accident reconstructionist, as did the
defendant.  The two experts had only the defendant’s evidence and the rough
diagram to go by.  Each was somewhat selective in the evidence they used to
offer an opinion.

[21]        
The plaintiff’s expert, Mr. Rempel, assumed Mr. Brown was travelling at
47 kph, and that the truck came to rest beyond the intersection so that
the front end was at most 15 meters east of the east edge of 2^nd
Avenue.  He assumed that when Mr. Brown initially saw the plaintiffs they
were beyond the east side of the intersection, and impact occurred at or near
the east side of the intersection.

[22]        
Taking the reaction time from perceived hazard (average response time is
1.5 seconds) and the average emergency stopping distance required when
travelling at a speed of 47 kph on a snow covered road, a vehicle would travel 48.5
meters or 159 feet before stopping.  Thus, the speed that would allow the
driver to stop within limits of visibility of 100 feet would be 26 kph.  Mr.
Rempel suggested that 2.5 seconds as a reaction time would be more appropriate
in order to assure a good margin of safety.  However, using an emergency
reaction time of 1.8 seconds, a driver could stop within visibility distances
of 60, 80 and 100 feet at 20, 25, and 29 kph respectively.  For Mr. Brown
to have stopped where he did, travelling at a speed of 47 kph, he had to have
seen the sled 45 meters west of the rest position.  All of Mr. Rempel’s
calculations for reaction time were based on the other object being stationary.

[23]        
He considered an alternative scenario of reduced speed for the truck and
movement of the sled across the intersection, and was of the opinion that a
collision would only have occurred if the sled had gone straight across the
intersection instead of veering to the north, and thus the slower the truck was
going, the more time the plaintiffs would have had to move out of the way.

[24]        
In cross-examination, he acknowledged that he did not work with
visibility distances beyond 100 feet, and he did not consider the other object
to be in motion.  He also acknowledged that there was no scenario in which Mr. Brown
could have been going as fast as 47 kph, first saw the object where he said he
did (as he passed under the streetlight), and have stopped at the rest location
Mr. Rempel had been asked to use for his calculations.  If Mr. Brown’s evidence
of “first sight” and final rest locations were accepted, Mr. Brown would have
been going less than 30 kph.

[25]        
Mr. Rempel acknowledged that the sled had to come into Mr. Brown’s field
of vision before he could do anything, and that was not necessarily related to
the light cast out by his headlights.  It is more likely the sled would become
visible as a matter of decreased density of the snow between the sled and the
truck as the sled came closer.

[26]        
Mr. Rempel acknowledged that it is technically conceivable that the sled
could have been going between 10 and 15 kph.  At 10 kph, the sled would be
moving 2.8 m/sec.  At 15 kph, the sled would be moving 4.2 m/sec.

[27]        
Mr. Rempel agreed that if Mr. Brown were going 47 kph when he first saw
the sled and slowed to 32 kph by the point of impact in 2.75 seconds, and
then took a further 3.2 seconds to come to rest, Mr. Brown’s evidence that he
came to rest where he first saw the sled would make sense.

[28]        
The defendant’s expert, Mr. McInnis, stated that the usual factors
required to give an opinion (visibility, coefficient of friction,
perception/reaction time, speed of truck, speed of sled, and whether the sled
was being braked or steered) were not available.  They depended on witness
statements and findings by the court.  Assuming the point of impact as
described by Mr. Brown, the resting positions of Ms. Scott and the pickup
truck from the not-to-scale diagram, the resting position of Ms. Armstrong
in front of the wheel, he concluded that the pickup truck was likely going 18 to
24 kph and the sleigh was likely going 20 to 30 kph when they collided.

[29]        
His estimate of the speed of the sled was based on the slope and an
estimated coefficient of friction, as well as an informal study done by a
student in Maryland which Mr. McInnis used to understand the speeds at which
children enjoy sledding.  He considered that the truck may have been stopped at
the point of impact because Ms. Armstrong was up against the tire and he would
have expected more injuries if she had been pushed ahead of the wheel.  He
acknowledged Mr. Brown’s evidence about his rate of travel, but said 47
kph was simply not consistent with seeing the girls in the intersection and
stopping where he did.

[30]        
Mr. McInnes’ opinion was that the headlights of the truck should have
been visible to the girls.  Mr. Brown would have had light reflected back at
him from his headlights on the snow; the girls would not have had to cope with
reflected light and should have been able to see the approaching headlights.

POSITIONS OF THE PARTIES

The plaintiffs

[31]        
The plaintiffs say the law is clear:  a driver must drive at a speed
consistent with maintaining control of his vehicle within the limits of
visibility (McDermid v. Bowen, (No. 3), [1938] 3 D.C.R. 617 (B.C.C.A.); Provincial
Transport Co. v. Dozois [1954] S.C.R. 223.  It is their contention that Mr.
Brown drove blindly through a snow storm in a residential area where he should
have expected to see people on the road.  To drive at such a speed,
particularly through the white-out under the streetlights, was negligent.

[32]        
The plaintiffs say that, in the circumstances here, the winter driving
conditions, blinding snow, and the additional white-out curtain created by the
overhead street light required Mr. Brown to drive much slower than 47
kph.  In fact, Mr. Brown admitted that he considered slowing down as he went up
4^th Street, passing under the street lights.  He had his lights on
dim, and testified that the low-beam does not go out more than 100 feet.

[33]        
Counsel for the plaintiffs suggests that visibility was limited to 60
feet, and thus the appropriate speed was 18 kph or less.  Even at 29 kph or
less, Mr. Brown could have stopped at or before the 2^nd Avenue
intersection, thus avoiding an accident.  The plaintiffs suggest Mr. Brown was
going at such a speed that he ran through the point of impact by 40 feet.

[34]        
There were no sidewalks and there were snow banks on the side of the
road.  Therefore, the plaintiffs say the defendant ought to have anticipated
the presence of pedestrians on the road, as s. 182 of the Motor Vehicle Act
requires pedestrians to walk on the extreme left side of the roadway, facing
traffic, if there is no sidewalk.  The defendant was required to drive at a
speed that would allow him to react to the presence of people on the road,
including adjusting his speed as he went under the street lights.

[35]        
If the defendant is found to be negligent, the burden is on him to
establish that the infant plaintiffs were also negligent.  The issue is whether
the children exercised the care to be expected from a child of similar age,
intelligence and experience: Connell (Guardian ad litem of) v. Dyck,
1998 CarswellBC 1656 (S.C.), relying on McEllistrum v. Etches [1956]
S.C.R. 787.

[36]        
The plaintiffs argue that there is no evidence to show any conduct of
the girls led to the accident.  Children always played on the street in Nakusp,
but in any event, the girls could not have been travelling at any speed beyond
a walk, and pedestrians are expected to be on the streets in Nakusp in the
winter.  There are no sidewalks and nowhere else to walk.  The children cannot
be expected to have appreciated the effect of the defendant’s headlights
reflecting off the snow.  Even if the girls were negligent, their conduct was
not causative, as the accident would have happened in any event.

The defendant

[37]        
The defendant says he was driving at a safe speed for the road
conditions.  He testified that visibility was 100 to 200 feet and he was
driving at 47 kph.  He was driving at a speed that would have allowed him to
stop safely for a stationary object. He would have been able to cope with
pedestrians on the side of the road.  However, he should not have had to
anticipate a sled moving towards him close to the middle of the road, out of
the snow and darkness.  Mr. Bruneau testified that in all the years he had been
in Nakusp, he had never seen anyone sledding down that hill.

[38]        
The defendant submits that requiring a driver to drive particularly
slowly because of the possibility that a hazard may appear on the highway is
too high a standard to set for drivers.  There is no requirement that a driver
must drive at a speed that would enable him to bring his vehicle to a
standstill without collision after the driver, keeping a reasonable lookout,
sees a stationary object in front of him (see Pitts Enterprises Ltd. v.
Farkes et al, 2004 BCSC 1493, and cases cited therein, including McCannell
v. McLean [1937] 2 D.LR. 639 (Ont. C.A., aff’d by S.C.C. in same cite).  [I
note that a reading of McCannell shows that the court was more limited
in its statement – that is, there is no categorical rule that requires a driver
to drive at such a speed; whether he was negligent is a finding of fact dependent
on all the circumstances.]

[39]        
Given that the sled was moving, counsel for the defendant argues, there
was no opportunity for Mr. Brown to avoid it.  Unless Mr. Brown should have
known that children could be sledding down into his lane of travel, he had no
obligation to take extra precautions, and even if he had been travelling more
slowly, he would have had no opportunity to avoid the moving sled.  Even where
extra precaution is required around children, the plaintiffs must still show
that the defendant, acting as a reasonably competent driver, could have avoided
the collision (Brewster (Guardian ad litem of) v. Swain 2007 BCCA 347).

[40]        
Mr. Rempel, the plaintiff’s expert, admitted that Mr. Brown could not
have been travelling at 47 kph if he first saw the sled as he passed under the
street light.  If Mr. Brown’s evidence as to his resting position is correct,
he would have been travelling 29 to 35 kph.  Mr. Rempel’s opinion is based upon
the sled being stationary.  If it had been, the truck would have stopped before
hitting it.  It was the movement of the sled, not the speed of the vehicle that
caused the collision.  As well, Mr. Rempel did not deal with scenarios of
visibility beyond 100 feet, and Mr. Brown testified visibility was 100 to 200
feet.

[41]        
The defendant submits that even if there is some negligence on the part
of the defendant, the children should be allocated the larger share of blame
since their conduct created the greatest degree of risk.  They were old enough
to appreciate the situation and its consequences.  Ms. Scott admitted that she
could see lights all the way down the hill, and if she had noticed car
headlights she would not have gone down.  Her mother testified that she had
told Ms. Scott not to sled on public streets.

CASE LAW

[42]        
In addition to cases respecting the principles governing the
apportionment of fault (see for example, Zawadzki v. Calimosos 2011 BCSC
45, and cases cited therein, and Cempel v. Harrison Hot Springs Hotel Ltd.
43 B.C.L.R. (3d) 219 (B.C.C.A.), counsel provided a number of cases dealing
with children.  The plaintiff’s cases focus on the difficulty of holding
children contributorily negligent:

[43]        
Connell v. Dyck, [1998] B.C.J. No. 1792: The eight year-old
plaintiff was riding a bicycle and was struck by a motor cycle driven by the
defendant.  Both were travelling east.  The plaintiff was riding on the right
side of the road and turned left across the defendant’s path to go north. 
Liability was apportioned 35% to the child plaintiff and 65% to the defendant. 
The defendant, having seen the child, should have anticipated his conduct in
turning across his path.  The child failed to adhere to the basic safety rules
he had been taught.

[44]        
Lloyd v. Fox, (1991) 57 B.C.L.R. (2d) 332 (C.A.):  Two defendants
were driving in opposite directions on a narrow, hilly road and stopped to talk
near the crest of a hill.  The defendant motorcycle driver came upon them
unexpectedly, hesitated before braking, and then collided with one of the
vehicles.  The trial judge took into account the plaintiff’s familiarity with
the road and the obvious limited visibility.  Liability was apportioned 60% to
the defendants and 40% to the plaintiffs, upheld on appeal.

[45]        
Mawani v. Pitcairn, 2012 BCSC 1288: The plaintiff was walking on
the side of highway.  He was struck by the defendant.  The plaintiff had no
memory of the accident.  The defendant’s passenger died prior to trial, and the
defendant began to suffer from Alzheimer’s disease prior to his discovery. 
Despite the lack of evidence, the summary trial judge was able to find that the
defendant was driving too fast for the conditions and did not give himself time
to avoid a collision when a hazard came into view.  As well, he was driving too
close to the curb.  The court also found that the plaintiff stepped into the
highway to avoid bushes on the path.  Liability was apportioned 50/50.

[46]        
McDermid v. Bowen, (No. 3) [1938] 3 D.L.R. 617 (B.C.C.A.) “The
mere driving in a fog, in my opinion, while hazardous, is not negligence
providing that such driving is at a speed consistent with control of the car
within the limits of visibility.”

[47]        
Provincial Transport Co. v. Dozois, [1954] S.C.R. 223:  An
automobile travelling west collided with a bus that was travelling east before
making a left turn in heavy fog.  The bus driver, having stopped, looked and
listened before making his turn, did all he could.  The oncoming car was going
over the speed limit, which was especially dangerous because of the fog, and
was entirely to blame.

[48]        
Carson v. Pruden, [1990] B.C.J. No. 1226 (C.A.):  Eight and nine
year-old children were instructed how to cross the road.  The defendant noticed
the two girls standing on the side of the road.  They looked right and left and
walked out into his lane of travel.  The trial judge’s finding that the
defendant was negligent and the children exercised at most an error in judgment
and were not negligent was upheld on appeal.

[49]        
Christie v. Slevinsky, 1981 CarswellAlta 143, 12 M.V.R. 67 (Alta
Q.B.):  An eleven year old infant was driving a dune buggy at a high rate of
speed at dusk, while his vision was obscured by dust.  He was excited and not
paying full attention.  He struck the plaintiff, who was walking in the field
with his father.  The court held that the plaintiff was too young to appreciate
the danger and was not liable.

[50]        
The defendant cited the following cases:

[51]        
Ibrahim (Guardian ad litem of) v. Mclenahan, 1996 CanLII 550 (B.C.S.C.): 
The defendant was driving along a city street towards an intersection with a
cross walk controlled by a flashing signal.  A five year-old child ran out in
front of him from behind a rock wall and shrubbery.  The court held that the sole
cause of the accident was the infant plaintiff’s negligence.

[52]        
Feener v. McKenzie, 5 N.S.R. (2d) 660 (C.A.):  The defendant was driving
on the highway; some children were sledding down a gentle slope nearby to a
ridge of snow, which stopped them before they reached the road.  The defendant
saw the children at the top of the slope, about 60 feet away, but did not see a
sleigh and did not know they were coasting down the hill.  A five year-old boy
went down the incline, was not stopped by the ridge, and came into contact with
the defendant’s car.  The court found no liability against the defendant.

[53]        
Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347:  A
school bus driver was driving the bus along a residential street.  She saw
children playing on a cross street.  As she reached the cross street, a five
year-old boy rode his bicycle into the side of the bus.  While the bus driver
was required to exercise extra care because of nearby children, she was not
required to anticipate that one of them might ride through the stop sign.  Once
she was in a position to recognize that the child might enter the intersection
and the situation was dangerous, she had no time to take evasive action; the
accident was unavoidable regardless of evasive action she might have taken.  The
Court of Appeal held the driver was not liable.

[54]        
Chen (Guardian ad litem of) v. Beltran, 2010 BCSC 302: The
defendant struck an 11 year-old child who entered an intersection on a
skateboard, against a red light.  There was nothing to alert the defendant, who
was travelling at the speed limit, to such a sudden and unexpected situation. 
He had no chance to avoid hitting the boy.  The driver was held not to be liable.

[55]        
Pitts Enterprises Ltd. v. Farkes, 2004 BCSC 1493: The defendant
was driving a tractor-trailer unit in good winter driving conditions in the
dark.  He struck a moose standing in his lane.  The collision rendered his
steering inoperative and he struck the plaintiff in the oncoming lane.  The
plaintiff argued that the defendant simply failed to see the moose, or was driving
too fast in an area where wildlife was known to be present.  The court found
the stretch of road was not one where a moose might be expected, and the speed
was reasonable.  Even a slower speed would not have resulted in avoidance of
the collision.  The court held the driver was not liable.

[56]        
Currie v. Fitt, 1996 CanLII 3441 (B.C.S.C.):  A four year-old
child suddenly ran out in front of the defendant’s vehicle from a driveway that
was shielded by high grass.  The court found that the defendant was not aware
of the presence of children prior to the impact, but should have been, given
the nearby playground.  While the defendant should have been going slower, and
would thus have seen the child sooner, there was such a short time between
apprehension and impact that he would have been unable to stop in time to avoid
a collision in any event.  The court held that the driver was not liable.

DISCUSSION

[57]        
In my view, all the witnesses tried their best to recall the incident to
the best of their ability and to testify honestly.

[58]        
The plaintiff suggests that the court can make certain findings of fact
– that the defendant was travelling at 47 kph; that visibility was 100 feet or
under; that the children were pushing the sled slowly along the side of the
road; that the headlights of the defendant’s truck were not visible to them
until just prior to impact; and that Ms. Scott ended up about 40 feet back from
the end of the truck.

[59]        
However, from the rest positions of the girls and the evidence of the
defendant, there is no other conclusion to reach than that the girls were travelling
close to the middle of the road.  Ms. Armstrong ended up against the front of
the driver’s wheel, Ms. Scott landed behind the vehicle across the
intersection and toward the north side of the road, and the poor dog ended up
under the truck.  The girls simply could not have been pushing the sled on their
left side of the road facing traffic.  Even if the defendant had been driving
too close to his right side of the road, and there is no evidence that he was
doing so, the girls could not have been walking along the side of the road,
given their ultimate resting positions.

[60]        
Counsel for the plaintiffs submits that the sled would have had trouble
coming down the hill at all and it could have been moving at most at the speed
of a walk.

[61]        
There is no direct evidence that the plaintiffs’ sled was moving at the
speed of a walk.  Plaintiff’s counsel asks for that conclusion because the
slope was gentle, and the plaintiffs were two little girls who would be content
with pushing a sled along.  However, Ms. Scott said she recalled going down the
hill once before that night.  If one were to draw conclusions simply from the
fact of two little girls sledding on a hill, one might conclude they would not
bother to slowly push a sled twice down a hill that offered no sliding
surface.  However, the only evidence is from the defendant – the roads were
slippery and the sled was moving in the split second he saw it.

[62]        
The defendant says the sled seemed to him to be moving “at a good clip”;
he testified that they came “flying out of the darkness” at him.  I do not take
this to mean that the sled was travelling at a significant speed, but that,
from the defendant’s perspective, it appeared out of nowhere and was moving
when he first saw it.

[63]        
While the estimates of the speed of the sled from the defendant’s expert
are much too high to withstand scrutiny, the plaintiff’s expert acknowledged
that a speed of 10 to 15 kph was technically possible.

[64]        
The road was sloped and the surface was slippery.  I find that the sled
was moving at faster than a walk (which the plaintiffs’ expert said was 5 kph). 
There is no evidence as to whether Ms. Scott was assisting in propelling the
sled as she stood on the runners at the back.

[65]        
The expert evidence about the speed and stopping distance of the truck is
not of much assistance, for the reasons stated by Mr. McInnes.  There was no
objective evidence for the experts to use – no photographs, accurate scale
diagrams of the accident site, or measurements; there was no method by which an
accurate co-efficient of friction could be obtained.  Each expert had to rely
on the defendant’s evidence of speed, visibility, point when he first saw the
object, distance of his skid mark on the snow, and resting positions of the
vehicle and the girls.  However, those pieces of evidence are not all
reconcilable.  This is understandable, since the defendant was trying to recall
a traumatic event that took place in a few seconds a year and a half after it
had occurred.

[66]        
Mr. Brown described his reaction as dazed and dumbfounded; he testified
that he wondered how this could be happening to him, to run over two little
girls.  When questioned about Ms. Scott’s exact resting position and that of
the sleigh, he said:  “I don’t really know.  I – well, I was very upset and
emotional”.  He tried to describe Ms. Scott’s position on the road, but said: 
“Seemed to me she was about halfway between the truck and here.  Maybe not, I
don’t know.  Like I say, I was pretty disturbed.”

[67]        
The exact speed of the vehicle was obviously important to the experts. 
However, even that is not entirely clear.  At p. 12 of the transcript, Mr.
Brown was asked if he maintained a consistent speed of 47 kph and answered
“yes”.  At p. 23, when asked if he ever slowed down as he went up 4^th
Street, the defendant said:

A:       Slight bit, thought
about it. 

Q:      Why did you think
about it? 

A:       Because
of the vision.

[68]        
As for the point where he first saw the object, and reading his evidence
as a whole, it appears that the defendant was reconstructing some of his
evidence, that is, he was working out what he thought must have happened,
rather than testifying from an actual memory.  For instance, at pp. 17 – 18 he
said, when trying to remember where he first saw the black object:

A:       I was about – no that would be impossible.  I
saw it about halfway through the streetlight, because if I would have not seen
it to that point, from where the accident was, I wouldn’t have had my brakes
on.  I couldn’t possibly put my brakes on in that…

Q:      Well, that’s helpful.  So you were halfway
through the streetlight when you saw the black object?

A:       I
kind of think that would be, approximately.

[69]        
At p. 19, he said, when asked about whether his wheels locked:

A:       Well, they, of course they did.  I just
finished telling you that I didn’t run over the girl.  If the wheels hadn’t
been locked, it wouldn’t have slid along the…

Q:      This is what I’m trying to understand, is
whether the vehicle was sliding on the snow or whether the tires were gripping
the snow and slowing the vehicle down.  That’s what I’m exploring.

A:       Well,
they would have to be slowing it down, because it wasn’t long after I stopped.

[70]        
The defendant testified to various visibility limits, an issue that was
important to the experts.  At p. 3 of the deposition transcript he said:

Without
the streetlight I could see approximately two hundred feet, I’d say.  …when
you get to the streetlight, it has a tendency to take your vision off beyond,
like, the brightness of the lights on the snow has a problem with your vision
seeing beyond that. 

[71]        
In cross examination, at p. 10, he was asked how far the low beam on his
headlights goes out:

I
couldn’t exactly tell you.  I never measured it…I’d say at the most it goes
out is a hundred feet.

[72]        
At p. 16, the following exchange appears:

Q:      You’ve told us that your low-beams gave you
about a hundred feet of driving distance visibility is that correct?

A:       Yes.

Q:      And this was a snow evening; it was snow
evening that impaired your visibility?

A:       I
couldn’t say exactly whether it’s a hundred feet or two hundred feet, really,
what the lights are.  I’ve never measured it.  But it’s in that neighbourhood
somewhere.

[73]        
This examination of the evidence is not done to show that there are
other precise speeds or distances that can be found or that should have been
used by the experts; it shows just the opposite.  None of the parameters that an
expert in accident reconstruction needs to give an informed opinion are
present.  The speed of the vehicle is questionable; the speed of the sled is
unknown; the visibility distances are guesses within wide margins; the point
where the defendant saw the sled is a matter of reconstruction.  The evidence
of the witnesses as to the distance between Ms. Scott’s resting position and
the truck varies widely – from 10 feet to 40 feet.  Assuming the police diagram
is roughly accurate, the distance would be about the length of the truck – 5
meters.

[74]        
The plaintiff’s expert started with the defendant’s evidence as to the
speed of the truck, took the shortest visibility distance, and assumed the sled
was stationary in order to come to the opinion that the defendant should have
been driving much more slowly in order to be able to come to a safe stop upon
seeing the sled.  That is, if Mr. Brown was driving 47 kph, as he said he was,
and his visibility was limited to 100 feet or less, he could not have stopped
for a stationary object. He had to be travelling at 26 kph or less.

[75]        
The defendant’s expert took the point where the defendant said he saw
the object, the sliding distance, and the resting positions of the truck and
Ms. Scott, and concluded that the truck was travelling at a slower speed than
the sled at impact.  That scenario is very unlikely.

[76]        
The point upon which both experts agree is that Mr. Brown could not have
stopped where he did if he was going 47 kph and if he saw the girls as he was
halfway through the street light.  Either he was going slower than he thought
he was, or he saw the girls some distance west of the light pole – 45 meters
west of the rest position, or 30 meters from the from the east side of the
intersection, according to Mr. Rempel.

[77]        
The evidence before the court is fraught with imprecision, but some
facts can be discerned.  It was snowing heavily; the road was slippery.  Visibility
was limited to between 100 and 200 feet, and was further curtailed by the
effect of the streetlights.  The streetlights themselves were visible for about
four blocks.  The defendant testified he was travelling at 47 kph and slowed “a
slight bit” and thought about slowing more, given the conditions, but
apparently did not.  There is no evidence to suggest that Mr. Brown was
travelling other than in his regular lane of travel.

[78]        
I have found that the girls were travelling down the road on the sled in
or towards the left side of Mr. Brown’s lane of travel.  The speed of the sled
is undetermined but I have found the sled was moving at the point of impact,
and its speed was faster than a walk.

[79]        
I am satisfied that the defendant’s vehicle had its headlights on, and
the headlights would have been visible to the girls.  While the defendant’s
headlights were reflecting off the falling snow, impeding his vision, the children,
who were in darkness, would have no such impediment to seeing the defendant’s
headlights approaching up 4^th Street, other than the falling snow
itself.  There were no streetlights on the portion of the hill they were on. 
There is simply no explanation for why the girls did not see the truck
approaching.

[80]        
The first issue is whether Mr. Brown was driving too fast for the road
conditions and was thus negligent.

[81]        
According to McCannell v. McLean, supra, there is no rule
that a driver is required to drive at a speed that allows him to bring his
vehicle to a standstill after the driver, keeping a reasonable outlook,
observes a stationary object confronting him.  Whether a driver is negligent
will depend on the individual facts.  The case relied on by the Supreme Court
of Canada in McCannell is Irvine v. Metropolitan Transport Co. Ltd.,
(1933) 4 D.L.R. 682, where the court said, at. p. 695:

A driver is not bound to
anticipate a breach of the law by other users of the highway nor to take anticipatory
precautions against the possible happening of illegal acts by others.  This
rule is subject to the limitation that if when he becomes aware or ought to
have become aware of the negligence or breach of duty of another he is able by
exercise of ordinary care to avoid the results of the other’s negligence he is
bound to do so.

[82]        
A driver, while required to take reasonable care, is entitled to rely on
certain assumptions:

Traffic in the streets would be
impossible if the driver of each vehicle did not proceed more or less on the
assumption that the drivers of all other vehicles will do what it is their duty
to do, namely, observe the rules regulating the traffic of the streets. Toronto
Railway v. King, [1908] A.C. 260, quoted in Swartz Brothers Ltd. v. Wills,
[1935] S.C.R. 628.

[83]        
I accept the obvious proposition that a driver is required to drive
safely within the limits of his visibility.  He must keep a reasonable lookout
and drive within the limits of his ability to control his vehicle.

[84]        
The accident happened at about 5:00 p.m.  There is no evidence that this
was a hill where children normally sledded; the evidence is to the contrary. 
Although children played on the roads in Nakusp, the evidence is they played
road hockey and other games.  While Mr. Brown should have had in mind the
possibility of pedestrians on the road, I cannot conclude that Mr. Brown should
have anticipated as a reasonable possibility that he would meet a sled coming
at him in his lane of travel.  Thus he was not required to drive at a speed
that would allow him to cope with such an eventuality.

[85]        
In any case, was Mr. Brown driving too fast for the winter conditions
and visibility?

[86]        
At 47 kph, Mr. Rempel estimated Mr. Brown would take 48.5 meters to
stop, which would be too fast to avoid a stationary object coming into his
visibility at 60 to 100 feet.  However, the evidence is that visibility was
between 100 to 200 feet with some reduction in visibility under the cone of the
streetlight, and that the sled was not stationary.  If Mr. Brown’s visibility
was 100 feet and the sled had been stationary, he was travelling at a speed
that would not allow him to stop once he saw it.  If his visibility was 200
feet, he had time to stop for a stationary object.

[87]        
It is not possible, on the evidence before the court, to determine which
of Mr. Brown’s estimates of visibility is more accurate or more likely.

[88]        
As well, in Mr. Rempel’s opinion, the headlights would not have
illuminated the sled in any event.  The sled would only have become visible as
it appeared through the snow, which means Mr. Brown had to drive at a speed
which would allow him to anticipate a sled suddenly coming at him in his own
lane of travel.  I have found that that was not a reasonably foreseeable event
and he was not required to drive at such a speed.

[89]        
Mr. Brown’s evidence of his speed is not reconcilable with the rest of
the evidence, that is, his estimate of his resting position (which is similar
to that on the police diagram) and his evidence of where he first saw the
object.  Mr. Brown’s evidence is the only evidence on those points.  While a
court need not accept evidence even if it is not contradicted, there is nothing
else to consider in this case, except Mr. Rempel’s attempt to explain the
discrepancy by saying Mr. Brown must have seen the girls much farther back. 
However, against this is Mr. Rempel’s evidence that it would not be possible to
see the girls through the snow in any event.

[90]        
Taking all of this into account, I am unable to conclude that the
plaintiffs have established that Mr. Brown was driving too fast for the road
conditions.

[91]        
Was Mr. Brown otherwise negligent in failing to avoid the collision?  The
plaintiffs must establish that Mr. Brown became aware, or by the exercise of
reasonable care should have become aware, of their presence as a hazard, and
that he had sufficient opportunity to avoid the accident of which a reasonably
careful and skilful driver would have availed himself (Brewster v. Swain,
supra, quoting Pacheko (Guardian ad litem) v. Robinson [1993]
B.C.J. No. 154 (C.A.).

[92]        
Mr. Rempel agreed that if Mr. Brown were travelling at 47 kph, and given
the average time to react after seeing the sled, and assuming the point of
impact was the east side of the intersection, he would have slowed to 32 kph by
the time of the impact and the front of the vehicle would stop at 23 meters
beyond the intersection.  He said Mr. Brown’s estimate that he came to rest
where he first saw the sled makes sense.  If the sled were moving at 10 kph, it
would move forward into the path of the truck, giving the driver no chance to
avoid a collision.  The result of that scenario is that Mr. Brown was driving
at a speed that would allow him to stop for a stationary object and it was the
movement of the sled that led to the collision, not the speed of the vehicle.

[93]        
If the sled were stationary in the middle of the road, using the figures
for speed and visibility most favourable to the plaintiffs, Mr. Brown would not
have been able to stop in time to avoid an accident once he perceived the
unexpected hazard.  However, those figures have not been established on a
balance of probabilities and the sled was not stationary.

[94]        
I am not persuaded that Mr. Brown had an opportunity, by the exercise of
reasonable care, to avoid this accident once he became aware of the sled
travelling towards him and recognized the situation as dangerous.  He had a
split second to react; he slammed on the brakes; he was able to stop in a very
short time.

[95]        
The paucity of the evidence and its obvious frailties has made the
plaintiffs’ task in this trial difficult.

[96]        
On a consideration of all the evidence, I am unable to conclude that the
plaintiffs have established that the collision was caused by any fault of the
defendant.  Both actions are dismissed.  Unless there is a reason to address
costs, the defendant is entitled to one set of costs at Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice Humphries