IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130712

Docket: S20923

Registry:
Chilliwack

Between:

Kyla Taggart, an
infant, by her Litigation Guardian, Collin Taggart

Plaintiff

And

Elly Heuchert and
Eddy Adolf Heuchert

Defendants

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

Table of Contents

I.  Overview.. 3

II.  Witness Testimony regarding the accident. 8

A.  The
defendant, Elly Heuchert 9

B.  Dr. J.
Hankey, the defendant’s optometrist 11

C.  Christina
Taggart, the plaintiff’s mother and third party. 12

D.  Les
Cartwright 14

E.  Jason
Linn, northbound eyewitness. 16

F.  Leslie
Mohoric. 18

G.  Paul
Duguay, southbound driver, stopped at Hillcrest Avenue. 20

H.  Tasha
Brueckert, who crossed the road with the plaintiff 20

I.  Stephanie
Devereaux. 23

J.  Kurt
Ising, engineer 23

1.  Summary
on Mr. Ising’s expert opinion. 26

III.  Overview of positions of parties. 26

A.  The
defendant’s position. 26

B.  The
plaintiff’s and the third party’s positions. 27

C.  The
Law. 28

1.  Motor
Vehicle Act provisions. 28

a)  Section
119. 29

b)  Section
179. 29

c)  Sections
180 and 181. 29

2.  Case
law. 30

D.  Discussion
and findings. 33

E.  Contributory
negligence. 38

IV.  the third party negligent parenting claim.. 43

A.  Overview
of parties’ positions. 43

B.  Testimony
of the third party and other witnesses on community standards. 45

C.  Legal
principles, parental negligence third party claim.. 47

D.  Analysis
of liability on the third party claim.. 48

1.  General
factors known to the third party. 48

2.  Specific
circumstances known to the third party. 51

I.       Overview

[1]            
These reasons decide which party
bears responsibility, or partial responsibility, for a motor vehicle-pedestrian
accident that occurred September 26, 2006 in Abbotsford, B.C.

[2]            
On March 3, 2010, by litigation
guardian the plaintiff began her action against the defendant driver, Elly
Heuchert and Eddy Adolf Heuchert, the owner of the Mercedes SUV that Mrs. Heuchert
was driving. The defendants deny liability; in the alternative, they claim the
plaintiff was negligent and that her own negligence caused her injuries. On
June 14, 2011, the defendants joined the infant plaintiff’s mother, Christina
Taggart, (“Ms. Taggart”) as a third party. They allege Ms. Taggart
had failed to teach her daughter how to cross roads safely and, that on the day
of the accident, she failed to supervise her properly. Therefore, they say she
should be held partially responsible for her daughter’s injuries. The plaintiff
through her litigation guardian commenced her action March 3, 2010. The trial
began August 13, 2012, but five days proved to be too little and it was set for
continuation in April 2013 for a further three days.

[3]            
I will usually refer to Mrs. Heuchert
as the defendant.

[4]            
The plaintiff, who I will usually refer
to as Kyla, was 10 years old when the accident occurred on Gladwin Road, in
Abbotsford, B.C., within a 30 km/h maximum speed school zone. It was around
3:00 p.m. The school day at Centennial Park Elementary School (“Centennial
School”) had just ended and the children all let out. Kyla and two school
friends, also ten, were attempting to cross from west side of Gladwin Road to
the east side on an unmarked crosswalk, as defined by section 119 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 [the MVA].

[5]            
The intersection where Kyla was
struck is a T-intersection. The intersection and surrounding area are somewhat
atypical.

[6]            
Gladwin Road is a busy four-lane
north and south road in the main commercial part of Abbotsford. Centennial
School is, situated on the west side of Gladwin Road. Ms. Taggart had
driven to the school to pick up Kyla and a younger child and drive them home. Kyla
asked her mother if she could walk home with two of her ten-year-old
classmates. She agreed. The girls planned to cross Gladwin Road to get home.

[7]            
Weather or road conditions were
not a factor.

[8]            
On both sides of Gladwin Road is a
north-south sidewalk. On the east side of Gladwin, a road cuts through the
sidewalk to give drivers access to the parking lot of Sevenoaks Shopping Centre
(the “mall”), the largest mall in Abbotsford. The sidewalk, at that point,
curves into the mall access road and follows it into the parking area.
Pedestrians who want to continue north on the sidewalk walk north across the
mall access road and then continue again on the sidewalk.

[9]            
After Kyla crossed to the east
side of Gladwin, she could walk along the mall access sidewalk to the mall
parking lot. As her home was in a residential area just outside the south
margin of the parking lot, Kyla could reach home by walking a short distance
across it.

[10]        
Taking the bird’s-eye view of the
area around the intersection, much traffic circulates through it. A school zone
extends north, about 121 feet from the northern boundary of the school grounds.
The exact southern range of the zone was not specified in the evidence, but I
assume it extends a proportionately similar distance to the south.

[11]        
Drivers enter and leave the school
zone to reach a wide variety of destinations aside from wanting to access the
mall. South Fraser Way, Abbotsford’s busiest east and west road lies not far
north. Another east and west road, Hillcrest Avenue lies about 330 feet south
from northern edge of the east and west unmarked crosswalk at the south side of
the intersection. From east and west Hillcrest Avenue, another T-intersection,
(that does not extend east of Gladwin), drivers can obtain access to the back
of another mall, West Oaks Mall; or choose to drive on to other destinations
west of Gladwin.

[12]        
Both Sevenoaks and West Oaks malls
front on South Fraser Way.

[13]        
Hillcrest Avenue lies roughly 330
feet, (100 metres) south of the northern edge of an unmarked crosswalk near Centennial
School. Hillcrest Avenue offers pedestrian control signals and a marked
crosswalk, which is why the defendant says Ms. Taggart should have
directed the children to cross there, instead of allowing them to cross in the
unmarked crosswalk near Centennial School.

[14]        
A large church and parking lot lies
just south of Centennial School. Parents who want to pick up their children at
the school can access the church parking lot through a 33-foot wide driveway,
whose southern edge lies 17 feet from the north edge of the unmarked crosswalk.

[15]        
Centennial School sits above the
roadway, surrounded by a low cement wall and a chain-link fence. Students
leaving the grounds can walk north-east along a 4-foot wide walkway on the
school grounds that leads south to where the church parking lot covers a large
area. The 4-foot wide walkway exits through an ungated opening in the
chain-link fence that surrounds the school. Students can then walk down to
another path, about 7½ feet wide, that leads about 45 feet east from there to
the sidewalk on the west side of Gladwin Road. A student exiting there will
see, nearly straight across Gladwin, the mall access road and sidewalk.

[16]        
So that the location and
dimensions of the unmarked crosswalk make sense, I should explain that the
sidewalks that line both sides of Gladwin Road are nearly 8 feet wide. But the
location and width of the unmarked sidewalk is taken from the dimensions of the
sidewalk on the south side of Gladwin, after it completes its curvature to the
east to chase the edge of the mall access road. As the sidewalk gradually
curves along the edge of the access road, it also narrows, to a width of 5’3”.
It is that narrowed and straightened portion of the sidewalk whose lateral
lines, extended east and west across Gladwin Road, establish the location and
dimensions of the unmarked crosswalk.

[17]        
Although not discussed during
submissions, it occurs to me that a child, or an adult for that matter, who
looks across Gladwin from the west side might find it difficult to establish
the precise 5’3” dimensions of the unmarked sidewalk by visually extending the
lateral lines of the mall access road after it has straightened and narrowed to
5’3”. There are no visual aids, such as some yellow painted marks on the
sidewalk, to precisely establish the edges of the unmarked crosswalk. I note,
as well, that a person arriving at that point on the west side of Gladwin Road
will have just come off a path about 7½ feet wide, and find themselves standing
on a sidewalk that is almost 8 feet wide, neither of which, of course, are the
dimensions of the unmarked crosswalk.

[18]        
That aside, the parties have not
contested that the lateral lines of the 5’3” wide mall access sidewalk extended
from the point where it straightens and narrows to 5’3”, is, in accordance with
the definition of “crosswalk” in s. 119(1)(b) of the MVA, an
unmarked crosswalk.

[19]        
In the centre of Gladwin Road is a
raised centre median that extends 100 feet south from the intersection. Its
northern point is roughly 8 feet from what would be the southern edge of the
unmarked crosswalk, assuming its width would be 5’3” wide. To someone wanting
to cross in the unmarked crosswalk, the northern point of the median would be
somewhat to the right. The left (north) edge of the unmarked crosswalk lies
thirteen feet to the north of the northern tip of the raised median. Assuming
the unmarked crosswalk is 5’3” wide, the south edge of it would lie about 8
feet from the most northern point of the concrete median.

[20]        
The widths of the north and south
sidewalks, the raised concrete median, and other visual cues would not strongly
signal the exact location of the edges of the unmarked crosswalk, But, in my
view, the way the path from the school grounds lines up with the sidewalk on
the east side of Gladwin would suggest that is the place to cross. Speed Scene
photos 29 to 32 show this fairly well. Also noteworthy are Speed Scene photos
33 to 38. These show the dip in the sidewalk opposite to accommodate access to
the marked crosswalk to the north side of the mall access road. In my view,
that sends a visual signal of where to cross, and take pedestrians to the south
of the north edge of the unmarked crosswalk.

[21]        
Plaintiff’s counsel and counsel
for the third party say the plaintiff was struck when she was in the unmarked crosswalk,
or near to it. The defendants say she was some distance south of the unmarked
crosswalk when struck.

[22]        
When the accident occurred,
Gladwin southbound consisted of two lanes and a left turn bay into Sevenoaks
mall. Gladwin northbound consisted of two lanes northbound. Since then, the
city has added bicycle lanes to both sides of Gladwin, leaving one northbound
vehicle lane and one southbound, the left turn bay into the mall parking lot.
Otherwise, the dimensions are the same.

[23]        
Another curved raised median
extends from the south side of the intersection north, the full distance to
Hillcrest Avenue. That is designed to accommodate vehicles that want to turn
left into the mall parking lot. The purpose of the raised median on the south
side of the intersection is not so obvious. But it does mark the presence of
the mall entrance and it could guide drivers who are leaving the mall parking
onto the southbound side of Gladwin. It does not appear to be intended as a
safe haven for pedestrians. It lies about seven feet north of the southern edge
of the unmarked crosswalk.

[24]        
The raised median on the south
side of the intersection is not fenced or planted with shrubbery so as to
discourage pedestrians who want to cross Gladwin from using it is as crossing
point. No signs have been raised on it to tell pedestrians they should not
cross Gladwin there, or direct them to Hillcrest Avenue.

[25]        
As for the school zone sign, the
one facing southbound traffic is located 90 feet (27.4 metres) from the north
edge of what would constitute the unmarked crosswalk.

[26]        
Although Hillcrest Avenue is
located about 100 metres to the north, the evidence indicates that the unmarked
crosswalk has, for a long time, been used quite commonly by both children
attending the school and by adults who choose to cross there for whatever
reasons. Further, parents sometimes park in the mall parking area and then
cross Gladwin to drop off or pick up their children at the school. I understand
this was more common when parking adjacent to the school was more restricted.
Kyla’s father had parked in the mall on occasion; and on cross-examination,
Kyla agreed that she had some recall that she had crossed with her father at a
point on the median. I will discuss this later, but I did not see reason to
place as much significance on it as did defence counsel.

[27]        
The parties focused most of their
advocacy on the question of which party had the right of way; Kyla’s pace
crossing the road; Mrs. Heuchert’s speed, her sightlines, and her
opportunity to avoid striking Kyla; whether her vision problems were a
causative factor; whether Kyla was contributorily negligent; and whether Ms. Taggart,
the third party gave sufficient safety instructions to Kyla and supervised her
properly when she crossed Gladwin Road.

* * * *

II.    Witness
Testimony regarding the accident

[28]        
Apart from the plaintiff, who does
not recall the accident, the parties between them called thirteen witnesses
including:

§  Elly Heuchert, the defendant driver who stated in her
statement to ICBC that she was travelling 30 km/h; and did not recall having
vehicles beside her;

§  Dr. Hankey, the defendant’s optometrist;

§  Christina Taggart, the plaintiff’s mother and the
third party;

§  Les Cartwright, a bystanding parent, who was picking
his son up at school;

§  Jason Linn, a firefighter and a first aid attendant,
who was proceeding northbound in the curb lane. He saw the plaintiff and the
girls with her. He stopped his vehicle. He saw the accident and rendered first
aid;

§  Leslie Mohoric, a southbound driver and witness to the
accident;

§  Paul Duguay, another southbound driver and witness to
the accident;

§  Tasha Brueckert, a classmate;

§  Stephanie Devereaux, a schoolmate;

§  Michele Devereaux, mother of Stephanie Devereaux (and
whose testimony I discuss in Part IV which deals with the Third Party liability
claim);

§  Kurt Ising, a professional engineer;

§  Constable Andrew Wood, a police officer; and

§  Michael Miles, an independent adjuster retained by
ICBC.

A.   
The defendant, Elly Heuchert

[29]        
The defendant was 75 years old
when the accident occurred, 80 years when she testified. She said her memory
then was not as good as it had been, which I expect is the also the case for
other witnesses.

[30]        
The defendant had lived on Gladwin
Road for twenty years; so, naturally, had driven by the area of the accident
many times. Testifying was a difficult experience for her.

[31]        
She denied vision problems, but
granted she was not comfortable driving at night. She said Dr. Hankey had
never told her she should not drive. She could not recall that she had an
appointment with her eye doctor the following day, although evidently she did.
She testified on examination for discovery that she was not wearing
prescription glasses the day of the accident.

[32]        
She knew children were let out of
school at about 3:00 p.m. She was aware she was in school zone. She knew
children were around and agreed this was normal for the area.

[33]        
Although one of the witnesses, Mr. Linn,
testified the defendant had told her she had been travelling between 30 and 35
km/h, she denied travelling over 30 km/h. On examination for discovery, she
said she was driving 30 km/h and she confirmed this speed at trial.

[34]        
As she drove south on Gladwin
Road, nothing obscured her vision. To her left, right and forward she had clear
sightlines. She knew she was in a school zone and that children were around the
school.

[35]        
She said at trial that she did not
expect children to cross where the children did in this case because she
believed there was no crosswalk there. When questioned on cross-examination,
she evidently did not understand the concept of an unmarked crosswalk. She
agreed that children sometimes make their own crosswalk. They just take a
chance sometimes and can unexpectedly jump out.

[36]        
She said that her normal practice
was to stop if she saw a vehicle in the curb lane slowing to a stop to allow
people to cross. She understood that if a vehicle was stopping at an
intersection to allow people to cross, she could not overtake or pass the
vehicle. She did not see a vehicle stopping in the curb lane to her right,
moments before the accident.

[37]        
Asked why she did not see the
three girls before the collision, Mrs. Heuchert stated at trial (T: April
26, 2012 at p. 36, lines 21-25; and p. 37, lines 1-7):

A:         Because
… my eyes were in front of me. I was going straight ahead. I don’t watch
what’s going on right — right in — in moving traffic so I — I just looked
straight ahead as I drove.

Q:        So
you weren’t paying attention to what was happening in the right lane?

A:         Well,
l — like I said, no … [my] sight was in front of me where I was driving, not
what … the next — driver is next to me or what — where he’s going.

B.   
Dr. J. Hankey, the defendant’s optometrist

[38]        
Dr. Hankey has practiced as
an optometrist since 2004. Since 2006, she has been the defendant’s
optometrist.

[39]        
The defendant’s last visit with Dr. Hankey
was June 27, 2006, for an evaluation after her cataract surgery on May 9, 2006.
Testing confirmed that without glasses the defendant’s left eye vision was
20/40. At that same appointment, a slit lamp examination revealed the
defendant’s right eye had a cortical cataract. Dr. Hankey testified that
the cataracts can affect peripheral vision and produce “many, many symptoms
which would fit into the category of cataract symptoms”.

[40]        
Dr. Hankey was referred to
the consultation report of Dr. Blaylock, the surgeon who performed the
defendant’s cataract surgeries. Dr. Hankey explained that Dr. Blaylock’s
report indicated that the centre of the defendant’s eye lens was beginning to
break down so that it was no longer transparent and that this could affect a person’s
vision. She said that is “exactly what a cataract is.”

[41]        
Dr. Hankey on
cross-examination testified that while she has the power to revoke driver’s
licences she did not revoke the defendant’s. She explained people can continue
to drive during the day so long as they have 20/50 vision in one eye, or for
night driving, 20/40 vision. I note that Dr. Hankey could not extrapolate
from the defendant’s right eye vision unaided of 20/40 what it would be without
glasses.

[42]        
It is not clear from the evidence
whether any discussions occurred between Dr. Hankey and the plaintiff
about whether the defendant needed to wear prescription lenses when driving.
The evidence also did not reveal the outcome of the plaintiff’s medical
appointment regarding her right eye the day following the accident.

[43]        
The defendant testified that her
peripheral vision to the right was not affected on the day of the accident.
With her left eye vision at 20/40 unaided, she could drive during the day. Her
right eye aided vision was 20/40, but from Dr. Hankey’s evidence, it was
not clear whether, with 20/40 aided vision, she should not have been driving
without prescription lenses. I will discuss this issue further later.

C.   
Christina Taggart, the plaintiff’s mother and third party

[44]        
Besides Kyla, Ms. Taggart and
her husband have two other children, ages now 12 and 10. In June 2006, Kyla was
in grade 5 and Victoria in grade 2. She described Kyla as a good student,
“pretty mature” with no particular behavioral problems. She was engaged in
sports and recreational activities. The family had had lived in the area for
quite a while before the accident. The home was located on the other side of
the Sevenoaks mall parking and about five minutes from the school.

[45]        
Usually, either parent drove or
walked Kyla to and from school. Kyla had not walked home alone from school
before the accident.

[46]        
The day of the accident, Ms. Taggart
had driven to the school at 2:40 p.m., shortly before the children were let out
of school at 2:45 p.m. She saw Kyla on the school grounds and went there. Kyla
asked if she could rollerblade home Ms. Taggart told her no. Kyla argued
about this, but Ms. Taggart took the roller blades from her. Ms. Taggart
had planned to drive Kyla home herself; but a friend had called earlier and
asked her to pick up her two younger children. As Ms. Taggart had to drive
her daughter and her friend’s two children home, she decided that this would be
a good time to allow Kyla to walk home with two friends, also ten years old,
Tasha Brueckert and Stephanie Devereaux.

[47]        
Kyla had never walked home alone. Ms. Taggart
had never walked Kyla home, although her husband had done so.

[48]        
In summary form, Ms. Taggart
described the accident happening this way:

§  She belted the three younger children in the car,
which she had parked in the adjacent church parking lot. She saw the three
girls, Kyla, Tasha and Stephanie walk down from the school. Ms. Taggart
moved somewhat closer to sidewalk, standing between it and the children in the
car, 60 feet from where the girls stood on the side of the road, waiting to
cross.

§  The girls waited for about ten seconds at the side of
the road.

§  A southbound vehicle in the curb lane slowed and
stopped just before where the three girls were waiting at the side of the road.
Another southbound car in the curb lane stopped behind the first one. A third
one might have come up as well.

§  She looked at Kyla, told her to watch for cars, and
not to run out. Kyla turned to her and said, “I know mom.”

§  This was about three to four seconds before the girls
stepped off the curb; and also about the same time, the vehicles in the curb
lane had come to a stop.

§  The girls stepped off at about the same time. She saw
them take two steps and then turned her attention to the children in the car.

§  She said the girls crossed in the area where the north
end of the median ends. She had no problem with Kyla crossing at the location,
which she said was commonly used by kids to cross Gladwin.

§  When Kyla stepped off the curb, she walked at a normal
pace, with a “sense of purpose, knowing she was crossing the road”.

§  Ms. Taggart explained on cross-examination that
she had taught the children to be respectful of cars, to cross safely and to be
considerate of other people. She denied that Kyla was accelerating to a run.
Contradicting the evidence of Mr. Linn, she denied trying to pick up Kyla
on the road.

[49]        
Counsel for the defendant submits
that Ms. Taggart’s pre-trial inaccurate estimate of the distance between
her and the girls where they crossed Gladwin, her denial that she tried to lift
up Kyla on the road, and differences between her testimony and that of other
witnesses renders her an unreliable witness.

[50]        
Ms. Taggart gave a coherent
account of what transpired. I find her memory about trying to pick up Kyla from
the road was faulty, but she had good reason to recall other portions of her
evidence that had not become entangled with the fear she naturally would have
felt when he daughter was lying unresponsive on the road. She had a decent
vantage point. There were some differences between her testimony and that of the
witnesses, but credible witnesses supported large portions of her testimony.

D.   
Les Cartwright

[51]        
The plaintiff called Les
Cartwright. He knew the Taggart family through school, but did not socialize
with them. He went to the school to pick up his son. His location and the
vantage point it offered when the accident occurred were contentious. I find he
was standing at about the middle of the long wall of school that extends from
the main entrance to the east end; specifically, in the vicinity of two blue
doors visible in the Speed Scene booklet, particularly at photos 9, 10, 11 and
12.

[52]        
Using the Speed Scene scaled
diagram and its measurement of the raised median as a guide, I estimate this
would place Mr. Cartwright somewhere in the middle of 150 to 200 feet from
the west side of the unmarked crosswalk.

[53]        
Mr. Cartwright’s evidence
largely consists with that of the other witnesses called by the plaintiff,
except that he places the plaintiff’s mother nearer the girls as they stepped
onto Gladwin Road.

[54]        
Defence counsel submitted that Mr. Cartwright’s
vantage point was far from ideal. He points out that Mr. Cartwright was
looking at an angle, through a fence, with trees bordering the school
boundaries and that there were a lot of other children on the lawn, his son
among them, which he submits must have distracted him. But from the Speed Scene
Photographs, and from those taken by Mr. Unrau, it appears Mr. Cartwright’s
view from the area in front of the blue doors to the east side of the unmarked
crosswalk, would not be blocked by trees or the chain link fence. A tree trunk
near the corner offered some obstruction, but open areas remained that offered
a view to the area where the girls crossed.

[55]        
Mr. Cartwright stated he
stood further left than the view shown in Mr. Unrau’s first photograph at
Exhibit 7. Scene photographs are very useful, but we should not forget that
still photographs are exactly that; and that they do not reproduce movements
and the full range of impressions available to human senses. Further, a small
photograph does not give a reliable impression of a scene in the same way that
the high-quality panoramic images contained in the Speed Scene diagrams do.

[56]        
I find that Mr. Cartwright’s
vantage point, while not ideal, would have allowed him to see vehicles stopped
north of the unmarked crosswalk. From photographs, one cannot reliably discern
what portion of the girls Mr. Cartwright could see as they set out across
Gladwin Road, but at the least, he should have been able to see their top half.

[57]        
Mr. Cartwright said he saw
three vehicles stopped in the southbound curb lane. He would have had a view of
that. He said the girls crossed a few seconds after the vehicle stopped. He
also noticed a northbound vehicle stop before the girls started to cross the road.
This likely would have been the vehicle owned by Mr. Linn, whose testimony
I will discuss in a moment. He placed the girls’ position before they crossed
somewhere between the church parking lot and the retaining wall on the
sidewalk. He said they crossed Gladwin Road at a normal walking speed.

[58]        
He said he had often seen people
cross Gladwin at that location.

[59]        
In summary, although Mr. Cartwright’s
vantage point was less than ideal, it exposed sufficient visual information to
him to give a coherent account; one that conforms to the testimony of other
reliable witnesses.

E.    
Jason Linn, northbound eyewitness

[60]        
The plaintiff called Jason Linn, a
Langley firefighter, 36 at the time of the accident. He was driving northbound
on Gladwin Road, in a GMC Canyon (mid-sized) truck. He was familiar with the
area because his girlfriend lived just down the street, so he travelled to see
her several times a week. His vision is 20/20. He recalled the weather that day
was sunny and warm. The speed limit was 30 km/h. He witnessed the accident.

[61]        
He was travelling at 30 km/h, in
the curb lane. He saw children on the left side of the road where there are
“always kids coming through” from the school. He saw that three children were
getting ready to cross the road, so he started covering his brake and stopped
about 100 feet or less short of the entrance to mall access road. Based on the
Speed Scene diagram, this would place his stop position more towards the north
end of the raised 100-foot long median that extends south of the intersection.

[62]        
He saw a vehicle in the curb lane
opposite come to a complete stop, about 3 to 5 feet short of where the girls
were waiting at the curb. He did not notice if other vehicles also had stopped
behind it.

[63]        
He watched the children start to
cross the road at what he described as a brisk walk. From his vantage point, he
had a clear view of the accident at (his) estimated 30-metre distance, on the
diagonal. He did not take his eyes off the scene. As he watched, he saw an SUV
approaching from the north. He did not know how far to the north of the curb
lane the SUV was when he first noticed it. It was not speeding, but it did not
look as if it was going to stop. He thought he might have sounded his horn, but
was unsure.

[64]        
He said one child was about two
feet ahead of the other girls. The girls were beginning to enter the centre
lane. He thought all the girls would be struck by the approaching SUV. As it
came in front of the area where the girls were crossing, the SUV temporarily
blocked his view. He saw that one of the girls had been struck and thrown by
the impact. The striking SUV continued down the road for an estimated distance
of three-quarters the length of the raised median. He put on his four way
lights, asked someone to control traffic and ran to the girl to give her first
aid. He was equipped to do so because, at the time, he worked as a first aid
attendant and firefighter at Weyerhaeuser.

[65]        
He estimated the accident happened
about five seconds after the curb lane SUV stopped.

[66]        
He noticed the girl was lying prone.
She was not responsive. Because part of his first aid training taught him that
the speed of the striking vehicle affects the level of intervention, he asked
the defendant how fast she was travelling. She told him 30 to 35 km/h.

[67]        
He recalled the plaintiff’s mother
kept trying to lift up the plaintiff. He agreed with defence counsel she was
hysterical at the time. As noted, the plaintiff’s mother had no recollection of
this.

[68]        
He gave a statement to an ICBC
adjuster.

[69]        
Defence counsel submitted Mr. Linn’s
testimony that the defendant’s SUV stopped about three-quarters the length of
the median was at odds with what all the other witnesses said, i.e. that she
had stopped her vehicle almost right away. Two of the witnesses, Ms. Mohoric
and Ms. Taggart, testified the defendant stopped “quickly,” which is a
relative term and not inconsistent with Mr. Linn’s evidence that the
defendant stopped three-quarters the length of the median. I do not find his
testimony at odds with what other witnesses said in this regard. From his
stated position, he was best placed to say where the defendant came to a stop.
Defence counsel also criticized Mr. Linn’s testimony on this point
because, he submitted, it did not match the rough sketch Mr. Linn had
drawn. It placed him nearer to the mall access entrance. He also criticized Mr. Linn’s
testimony because he had not mentioned it before, even as recently four days
earlier, when he had spoken to Mr. Linn; but Mr. Linn testified that
he had explained to counsel he was at work and as such had no time to answer
detailed questions. It is possible Mr. Linn was parked closer to the
entrance to the mall access road, but this does not detract from his evidence.
He was not cross-examined on the scale accuracy of his sketch.

[70]        
I found Mr. Linn was an impartial
witness. At the scene, he followed through with his training. He was very
familiar with the area. He was observant enough when he approached the
intersection to notice children and the presence of the girls at the curb
wanting to cross. He explained he stopped short of the mall access road because
he had it in mind he would more likely be rear-ended if he stopped too close to
it.

[71]        
He had a good unobstructed view of
the accident.

[72]        
I find Mr. Linn asked the
defendant what her speed was and that she replied, 30 to 35 km/h.

F.    
Leslie Mohoric

[73]        
Ms. Mohoric is 43. She was
traveling southbound on Gladwin Road in a compact car. She stopped for a red
light on Hillcrest Avenue. She continued in the curb lane. Ahead of her, about
20 feet, was an SUV. She roughly estimated her speed at 20 to 25 km/h. She said
the SUV was travelling a few km/h faster. She noticed the SUV had started to
slow, and began braking very slowly. She began to apply her brakes too. She
said she stopped about 15 to 20 feet behind the SUV, with the front of her at
about the middle of the driveway into the church parking lot.

[74]        
She said people and kids were
everywhere, both in the schoolyard and in the church parking lot.

[75]        
She testified that she had first
noticed the defendant’s SUV to her side when it was about 5 feet between the
front of her vehicle and the back of the SUV in front of her. Questioned by me
to clarify what she meant by 5 feet, she pointed out something in the
courtroom, which I estimated in the range of 10 to 12 feet from the witness
box. Ms. Mohoric was unsure about speed and distances.

[76]        
She testified in part:

… The next thing I know
there was an SUV – type vehicle beside me. … [M]ore in front of my vehicle in
the next lane. And I saw… I believe, three girls on the sidewalk up by the
corner of the SUV.

[T: August 16, 2012, p. 5,
line 27.]

[77]        
Ms. Mohoric drew a sketch of
the area not long after the accident, Exhibit 8, which showed where the girls
were standing before they crossed Gladwin Road. Her sketch decidedly placed the
girls north of the school perimeter fence, closer to the parking lot. During
cross-examination, Ms. Mohoric had suggested the girls were standing south
of the corner of the perimeter fence. She granted her recollection six years
ago was better. Her sketch, rough as it was, did clearly place the girls north
of the school fence, the line of which she had clearly drawn. Also marked out
was the driveway into the parking lot.

[78]        
It is unrealistic to expect
precision testimony from witnesses six years after the event, but Ms. Mohoric’s
testimony, distilled, and allowing for her partly limited vantage point behind
the SUV, places the girls within or near what would be the boundaries of the
unmarked crosswalk across Gladwin Road.

[79]        
In a line of cross-examination
questions about her testimony that “the little girl bolted out” from right in
front of the SUV stopped in front of her, and was then struck by the mirror of
the [defendant’s] SUV, she was somewhat unsure at first whether two or three
children stopped at the curb. She agreed the girls all looked alike. Whichever
the number of girls curbside, she agreed she could not see them after they
stepped onto Gladwin Road. And, she could see the girl who had come from the
front of the SUV ahead of her only for a split second before she was struck.
Counsel suggested she had not noticed that one of the girls had set off before
two of the girls; and that when saw a girl appear sooner than expected, she
assumed she had bolted.

[80]        
Whether that counsel theory is
correct or not, a split second is insufficient time to form a reliable
impression of a pedestrian’s movement. When an event unfolds so fast, common
sense suggests a witness to an unexpected startling “split second” event could
conflate a pedestrian’s pace with the general rapidity with which the impact
occurred. In any case, the vantage points and time other witnesses had gave
their fields of view more markers against which to judge speed.

[81]        
I give Ms. Mohoric’s
testimony that the plaintiff bolted little weight. I prefer the testimony of Mr. Linn
and other better positioned witnesses, at least on this point.

[82]        
She had seen children cross the
road in that area sometimes.

[83]        
I note that Ms. Mohoric’s
testimony that she saw the girls standing at the front right corner of SUV
ahead of her and that the plaintiff was maybe two feet north of its front end
when she “bolted” right out in front of it, tends to place the plaintiff in
close proximity to the front end of the stopped curb-lane SUV. This also tends
to locate her within the unmarked crosswalk, or near to it, when she was
struck. Put another way, it does not support a finding that the plaintiff had
moved diagonally in the direction of the raised median or was significantly
south of the front end of the SUV stopped in front of Ms. Mohoric.

[84]        
She said the defendant’s SUV
stopped fairly quickly after it struck the plaintiff.

G.   
Paul Duguay, southbound driver, stopped at Hillcrest Avenue

[85]        
Mr. Duguay, retired,
testified. However, his testimony was too incongruent on matters on which other
witnesses largely agreed on. I accept that he had stopped his vehicle in the
curb lane at Hillcrest Avenue. He then proceeded in the curb lane until he
stopped behind other vehicles already stopped in that lane, and that he was
fourth in line, but give no weight to other portions of his testimony.

H.   
Tasha Brueckert, who crossed the road with the plaintiff

[86]        
Tasha Brueckert was 16 when she
testified. She was 10 at the time of the accident. She was in grade 5 with the
plaintiff. She testified that all she could remember was that Kyla had started
crossing the road before “we started”. She could not recall anything about the
way Kyla crossed the road. She recalled Stephanie Devereaux was present. She
recalled Kyle’s mother telling them to be safe when crossing the road. She
recalled waiting for the car to stop. She recalled walking. She said the vehicle
in the first lane had stopped. She said they had thought the second lane had
also stopped. She recalled, Kyla’s mother telling them that Kyla’s father was
waiting for them at Sevenoaks Mall.

[87]        
She was unsure if she had been
interviewed about the accident in December 2006. Defence counsel put a written
statement to her. Ms. Brueckert said it did not refresh her memory as to
the details surrounding the accident.

[88]        
Counsel for the defendant sought
leave to cross-examine Ms. Brueckert pursuant to section 9(2) of the Canada
Evidence Act, R.S.C. 1985, c. C-5 [CEA]. (The CEA did
not apply in this case, but this did not come up until later submissions).

[89]        
During cross-examination, Ms. Brueckert
said she did not recall Kyla skipping across the road moments before the
accident happened or that she and Stephanie Devereaux were running across the
road behind Kyla when the accident happened. She said that would be false and
said that they were walking.

[90]        
Defence counsel also sought leave
to mark the statement taken by the adjuster as an exhibit. I declined, but
agreed to mark it as an exhibit for identification purposes with leave to
counsel to make submissions on that; and, as to what use could be made of it,
if any, for the purpose of making findings.

[91]        
Counsel for the plaintiff said
counsel for the defendant did not advise him he intended to rely on s. 9(2)
of the CEA, and said his submissions at the time were therefore
inadequate. He submits the reliance of defence counsel on s. 9(2) of the CEA
was ill-conceived. He referred to D.M. Paciocco and L. Stuesser, The
Law of Evidence (4^th ed. 2005) at pp. 468 – 469:

Despite the utility in doing
so, counsel is not free simply to confront disappointing witnesses with their
earlier inconsistent statements. Complex statutory provisions defined when and
how this is to be done. In criminal cases, or civil cases falling under the
purview of the Canada Evidence Act, subsections 9(1) and (2) govern the
admissibility of prior inconsistent statements made by a party’s own witness.
None of the provincial statutes has an equivalent to subsection 9(2), although,
insofar as proof of prior inconsistent statements are concerned, they are all
identical in substance to subsection 9(1).

[92]        
He points out the CEA did
not operate in the case at bar as it did not fall within federal jurisdiction.
Accordingly, he submits that counsel for the defendant should not have been
allowed to cross-examine Ms. Brueckert on the statement recorded by Mr. Miles,
who is the independent adjuster retained by ICBC to interview Ms. Brueckert.

[93]        
Further, he submits the statement
is inadmissible hearsay and lacks any of the necessary hallmarks of
reliability. He pointed to Mr. Miles’ December 5, 2006 report to ICBC
about his interview of Ms. Brueckert, which Mr. Miles characterized
as difficult, adding: “Tasha was very fidgety, demonstrative, dramatic and
unfocused. She seemed quite immature and this was compounded by her mother who
felt that the whole show seemed to be cute.”

[94]        
I note Ms. Brueckert did not
adopt the statement, which she had not signed. Although I do not doubt Mr. Miles
conducted the interview in a responsible way, I am not satisfied that what he
has written down is a reliable facsimile of what Ms. Brueckert, then age
10, truly recalled. It is obvious from Mr. Miles’ note to ICBC that he had
significant reservations about the interview.

[95]        
I note that the reference in the
statement taken by Mr. Miles to the plaintiff skipping and the girls
running is not corroborated by any witness who saw the girls when they walked
in front of the stopped SUV. I have already referred to Ms. Mohoric’s
impression that the plaintiff bolted from the front of the stopped SUV; but for
reasons noted, I find it is an impression insufficiently supported by the amount
of time she had to observe the plaintiff and by other markers a witness needs
to form a reliable impression.

[96]        
Defence counsel’s precise summary
of Ms. Brueckert’s evidence goes about as far on relevant points as the
circumstances allow:

[She] recalled that the
plaintiff is slightly ahead of her and Stephanie Devereaux. She could not
recall in what manner the plaintiff crossed the road. Her memory was not
refreshed by reviewing her statement which is taken in the presence of her
mother and signed by her mother, but not her.

[97]        
I will not mark the December 2006
statements exhibit or give it weight.

I.      
Stephanie Devereaux

[98]        
Stephanie Devereaux was one of the
three girls. Counsel for the defendant submits she was in the best position to
say where the girls crossed and how the plaintiff moved across Gladwin Road.
She testified the accident occurred to the right of the sign on the raised
median. I do not see a measurement for it in the Speed Scene diagram, but
looking at photographs 33 to 38, I would place the sign about six feet from the
north edge of the raised median. She said the plaintiff proceeded ahead of her,
“almost jogging.”

J.    
Kurt Ising, engineer

[99]        
The defendants rely on a collision
investigation report prepared by Mr. K.W. Ising of MEA Forensic Engineers
& Scientists Ltd., a well-regarded firm of professional engineers. He was
qualified as an expert in the field of accident reconstruction and/or human
factors.

[100]     At page 1 of his report, Mr. Ising states that he
was:

… [A]ware that my duty as an
expert witness is to assist the court and not to act as an advocate for any
party. I have prepared this report in conformity with that duty. If called on
to give oral or additional written testimony, I will give my testimony in
conformity with that duty.

[101]     The defendant asked Mr. Ising to opine on the
point of impact, on the defendant’s sightlines and visibility as she approached
the point of impact, on the speed of her vehicle as she approached the point of
impact; and, on her chances of avoiding the impact.

[102]     At page 8 of his report, he concluded:

1.       The defendant was traveling less than the posted 30 km/h speed
limit. He calculated speed at between 17.92 and 19.9 km/h with 95% confidence.

2.       At impact, he opined Ms. Taggart was likely about 5.6 to
11.5 metres south of the north end of the centre median.

3.       At the instant she “ran out”, Ms. Taggart would have been
hidden from the defendant’s view by the lead black SUV. Based on the assumed
initial spacing of approximately 5 feet between the front of the defendant’s
vehicle and the rear of the black SUV, he opined there was a sightline at the
moment the black SUV applied his brakes that lasted for approximately 0.7
seconds.

4.       There was insufficient time available for the defendant to avoid
impact if she reacted upon sight and Ms. Taggart “running out” from in
front of the lead black SUV.

5.       Given the angle to the brake lights on the lead SUV, he believes
it is unlikely the defendant would have detected them.

6.       Even if the defendant applied her brakes just 0.45 seconds slower
than expected in a clear emergency situation by applying her brakes at the same
rate as that assumed for the black SUV, there would be a greater than 50%
probability that she would still block Ms. Taggart’s path at the point of
impact.

[103]     The plaintiff’s counsel closely cross-examined Mr. Ising
on the assumptions that underlie his report. They include:

§  Ms. Taggart ran from the curb as soon as the lead
curb lane SUV stopped. Based on calculations of how long this would have taken,
the distance the defendant’s vehicle would have had trouble he calculated his
estimated speed for the defendant to 17.9 km/h.

§  Mr. Ising also assumed that when the driver of
the lead SUV applied his brakes to stop for the girls, 5 feet separated the
front of the defendant’s vehicle and the rear of the lead SUV Mr. Ising
agreed with counsel that were he to assume the defendant’s vehicle was
positioned further north of the lead SUV when its driver started to apply
brakes, the defendant’s speeds would be proportionately higher: for example, at
15 m, her speed would increase to 22 km/h. As for the defendant’s sightlines as
she approached the point of impact, plaintiff’s counsel pointed out that Mr. Ising’s
analysis failed to account for the fact that Mrs. Heuchert was driving a
SUV, which would render the lead curb lane SUV less opaque an object than if
she had been driving a sedan.

§  As for the point of impact, Mr. Ising confirmed
his calculations assumed that when the defendant heard the sound of Ms. Taggart’s
head striking her side view mirror she commenced full braking. He also assumed
the defendant’s reactive braking fell at the 50^th percentile, i.e. a
0.9-second perception response time. He also assumed the defendant was moving
at 30 km/h or less. He agreed with counsel that if anything delayed the
defendants response time, or if she responded with anything less than full
braking, or if she had a slower than 0.9 second perception response time, the
point of impact would lie further north than the 5.6 to 11.5 metres south of
the north end of the raised centre median 5.6 he proposed.

[104]     Further on the subject of sightlines, counsel pointed
to the contents of an email that Mr. Ising wrote defence counsel. In it, Ms. Ising
wrote:

The issue working against us
here there is that [the plaintiff] would have been visible prior to the
braking. It seems from the speeds assumed and calculated that the lead SUV may
have caught up to and passed Heuchert, so she would have had a clear sightline
to the child for an unlimited time prior to the breaking. This would likely be
a concession in cross-examination.

[105]     Asked by counsel for the plaintiff why he did not
mention this in his report, Mr. Ising explained he felt it was something
for cross-examination and that he was preparing the report based on the
instructions of his client.

[106]     In his outline of submissions, counsel for the
plaintiff sharply criticized Mr. Ising’s accident avoidance section, which
proposes the defendant had no time to react to the SUV slowing in the curb
lane. He points out at least two vehicles had stopped to allow the girls to
cross. (On Mr. Duguay’s testimony, likely four vehicles).

1.    
Summary on Mr. Ising’s expert opinion

[107]     Mr. Ising wrote his report mostly reliant on
facts he was asked to assume. I note the defendant herself estimated her speed
at 30 km/h, or 30 to 35 km/h to Mr. Linn. The evidence does not support a
finding on the balance of probabilities that Ms. Taggart ran from the
curb. In my view, Mr. Ising’s report requires too much speculation and
questionable extrapolations not soundly supported by the eyewitness evidence.
Further, and most critically, it fails to address the highly salient
possibility raised in Mr. Ising’s email to counsel that the lead curb lane
SUV had caught up to the defendant and “that the defendant would have a clear
sightline to the child for an unlimited time prior to the braking.”

[108]     The defendant grants that she was aware of
schoolchildren in the area.

III.   Overview
of positions of parties

A.   
The defendant’s position

[109]     Defence counsel stressed the importance of
establishing which party had the right of way because the statutory right of
way provisions serve the dual purposes of showing whether the driver breached
the standard of care and of whether the pedestrian is guilty of contributory
negligence. Annapolis County District School Board v. Marshall, 2012
SCC 27.

[110]     In that case, although the plaintiff, at four years of
age, was deemed too young to be guilty of contributory negligence due to his
age, the Court found at para. 7 that the trial judge had correctly
instructed the jury that:

[7]        … [A]bsent special
circumstances, where the driver has the right of way, he or she can reasonably
proceed on the assumption that others will follow the rules of the road and
yield the right of way to drivers.

[111]     Defence counsel further submits that even if the
defendant did breach s. 179(3) by overtaking slowing vehicles in the curb
lane, the brake lights on the SUV were likely positioned at an angle which made
it difficult for her to see the brake lights. He therefore, submits a
reasonably prudent driver easily could have missed the slowing SUV, and the
circumstances made the collision virtually unavoidable.

[112]     The defendant submits, in the alternative, that if the
plaintiff is found to have been in the unmarked crosswalk she was still in
breach of s. 179 (2) because she left the curb jogging ahead of the other
two girls. He submits this made it impracticable for the defendant to yield the
right of way to her. Accordingly, should the defendant be found at fault for
the accident, the defendant submits the plaintiff should be found negligent to
a very significant degree.

B.   
The plaintiff’s and the third party’s positions

[113]     Counsel for the plaintiff, relying on para. 19 of
Callahan (Guardian ad litem of) v. Cairns, [1995] B.C.J. No. 2663
(C.A.)[Callahan], submits that Mrs. Heuchert’s failure to respond
to curb lane traffic that was slowing and came to a stop in the curb lane
before the unmarked crosswalk divested her of the right of way. In Callaghan,
the 12-year-old plaintiff had stepped a foot or two into the intersection,
somewhat outside the unmarked crosswalk. The driver of a pickup truck stopped
his truck hard in the curb lane. Other vehicles traveling behind him managed to
stop. The plaintiff either ran or loped across the road. She passed safely in
front of the stationary pickup truck. After she moved past it, she looked
neither to her left nor to her right. The defendant’s centre lane vehicle
struck her. The Court stated the pedestrian could not claim the right of way
because she was outside the crosswalk, but neither could the defendant driver.
As the Court explained:

[19]      … [T]he pedestrian
plaintiff may well not have had a right to cross at that point, a right over
vehicles being dependent on the existence of a crosswalk. It will also be
apparent that the defendant may not have had a statutory right of way at that
point because the pick-up truck had stopped at an intersection. That is whether
or not there was a crosswalk. Since the stopping of the pick-up truck may well
have been to permit a pedestrian to across the highway, the defendant’s vehicle
would not be said to have had the right of way, whether or not the plaintiff
could be said to have been crossing in a crosswalk or not.

[114]     The plaintiff’s position is that she was in a
crosswalk, alternatively that she was so near to the south edge of unmarked
crosswalk that she had the right of way; that the defendant was in breach of
s. 179 (3) of the Act; and that even if it were found she was not
so close to the unmarked crosswalk as to remain vested with the right of way,
considering her age and the circumstances, she is not guilty of contributory negligence.

[115]     Counsel for the third party agreed with plaintiff’s
counsel that the plaintiff had the right of way, and that considering all the
circumstances she was not negligent, even applying the standard for adults. He
stressed the fact that Ms. Mohoric had noticed the defendant’s SUV only
after the lead curb lane SUV had come to a complete stop, the implication of
this being she had ample time to notice the curb lane vehicles had been slowing
to a stop well before the unmarked crosswalk.

[116]     Counsel for the third party pointed out that the
defendant’s 20/40 vision in the right eye was aided prescription vision
and she was not wearing prescription glasses the day of the accident.

C.   
The Law

1.    
Motor Vehicle Act provisions

[117]     The relevant sections of Part 3 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] are:

a)     Section 119

(1)

"crosswalk"
means

(a)        a
portion of the roadway at an intersection or elsewhere distinctly indicated for
pedestrian crossing by signs or by lines or other markings on the surface, or

(b)        the
portion of a highway at an intersection that is included within the connection
of the lateral lines of the sidewalks on the opposite sides of the highway, or
within the extension of the lateral lines of the sidewalk on one side of the
highway, measured from the curbs, or in the absence of curbs, from the edges of
the roadway. …

b)     Section 179

179 (1) Subject to section 180, the driver of a vehicle
must yield the right of way to a pedestrian where traffic control signals are
not in place or not in operation when the pedestrian is crossing the highway in
a crosswalk and the pedestrian is on the half of the highway on which the
vehicle is travelling, or is approaching so closely from the other half of the
highway that he or she is in danger.

(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.

(3) If a vehicle is slowing
down or stopped at a crosswalk or at an intersection to permit a pedestrian to
cross the highway, the driver of a vehicle approaching from the rear must not
overtake and pass the vehicle that is slowing down or stopped.

(4) A pedestrian, cyclist or
the driver of a motor vehicle must obey the instructions of an adult school
crossing guard and of a school student acting as a member of a traffic patrol
where the guards or students are

(a)        provided
under the School Act,

(b)        authorized
by the chief of police of the municipality as defined in section 36 (1), or

(c)        if
located on treaty lands, authorized by the chief of the police force
responsible for policing the treaty lands.

c)     Sections 180 and 181

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,

(b)        give
warning by sounding the horn of the vehicle when necessary, and

(c)        observe
proper precaution on observing a child or apparently confused or incapacitated
person on the highway.

2.    
Case law

[118]     In Perez-Alarcon (Litigation guardian of) v. Lee,
2013 BCSC 408, Justice Griffin dealt with the case of a plaintiff who had
started out within the bounds of an unmarked crosswalk and traveled in it or
close to it, in an area of the intersection. Justice Griffin referred to the
remarks of Justice Donald in, Dao (Public Trustee of) v. Sabatino (1996),
24 B.C.L.R. (3d) 29 [Dao] at para. 39 (C.A.), and stated at para. 122
of Perez-Alarcon, that:

[122]    … [T]he pedestrian
was close enough to the unmarked crosswalk that an oncoming driver should have
been alert to the possibility of a pedestrian’s presence in that area. … [I]t
was not “impracticable” for him to yield within the meaning of s. 179(2)
of the Motor Vehicle Act, as Mr. Lee only had to slow down or break
and Mr. Alarcon would have been safe.

[Emphasis added.]

[119]     The facts in Dao did not engage s. 179(3)
because the defendant driver had not passed vehicles in the curb lane that had
stopped to allow the plaintiff to cross. Justice Donald explained (at para. 39)
that what was important is that:

[39]      … [T]hat there is
a legal regime giving pedestrians a right of way in unmarked crosswalks and
that motorists approaching an intersection should be cautious in ensuring that
no one is crossing behind stopped traffic. The same duty of care rested on Mr. Sabatino
whether the children were just in or a few feet out of the crosswalk.

[120]     Counsel for the plaintiff points out that s. 179(3)
prohibits passing a vehicle stopped to permit pedestrians to cross the highway
“at a crosswalk or at an intersection”. Counsel submits, therefore, that even
if the three girls had attempted to cross slightly outside the unmarked
crosswalk, they were in the intersection and the curb lane vehicles had stopped
to permit them to cross the intersection.

[121]     Both parties referred to Coso v. Poulos, [1969]
S.C.R. 757 [Coso]. In Coso, the 29-year-old pedestrian appellant
was attempting to cross north to south across the six east-west lanes of
Broadway and Laurel. As he was about to leave the curb, he saw a truck
approaching from the east in the curb lane near to him. The approaching truck
slowed, which the appellant took as a signal to cross Broadway. The appellant
saw no other vehicle approaching from the east. The approaching respondent’s
vehicle was catching up to the truck in the curb lane, which hid the
respondent’s vehicle from the appellant’s view. The appellant, therefore,
focused his attention on traffic coming from the west. The respondent’s vehicle
struck him as he proceeded further.

[122]     At trial, Chief Justice Wilson found the defendant wholly
at fault. The Court of Appeal attributed 20% negligence to the plaintiff on the
finding that he moved too quickly and because a “quick look before entering the
southerly lane would have sufficed to enable him to avoid being struck down”, (para. 11,
cited to SCC decision). The appellant looked to his left but did not see the
respondent’s vehicle because it was still hidden by the truck he was passing in
front of. He therefore concentrated his attention on traffic coming from the
west. After he taken a few steps beyond the front of the truck, the
respondent’s automobile struck him. At para. 9, the Court referred to the
remarks of the Chief Justice at trial as follows:

[9]        This is one of the
most common situations in city motoring. The defendant could not, because of
the truck, see to the right where the plaintiff was. When he saw the truck on
his right slow or stop he ought at once to have known that danger was present
and that in all probability the danger was that of striking a pedestrian coming
from the north of the truck, where he had no view. It became his duty at once
to slow or stop his car to avert the possibility of an accident and he did not
do so but drove on until he saw the plaintiff when it was too late to stop. His
speed, reasonable under other circumstances, was excessive, because, so soon as
he was the truck slow or stop (and he was behind it) he should have so
controlled his car as to avoid any chance of striking a pedestrian in the
crosswalk.

[123]     Regarding contributory negligence, the Chief Justice had
stated at para. 10:

[10]      Was the plaintiff
guilty of contributory negligence? He had the right-of-way and was entitled to
expect that motorists would respect it. The truck did respect it. Was he not
then entitled to expect that vehicles to the south of the truck would observe
the action of the truck and act accordingly? I think he was. I do not say that
he might not, by the exercise of extreme vigilance, have avoided this accident,
but I do not think that in the circumstances such a degree of vigilance was
required of him. I find that the defendant is wholly liable.

[124]     The court also noted that the Court of Appeal had
misapprehended the evidence because the trial judge had not found that the
appellant was running or walking fast. This had been a statement of the
respondent, not a finding of fact, but an assumption which the court thought
had misdirected the thinking of the Court of Appeal.

[125]     Counsel for the plaintiff also referred the court to Woodhouse
v. Gill, [1996] B.C.J. No. 482 (S.C.) [Woodhouse], a case
involving a similar unmarked crosswalk in Vancouver. In that case, Justice
Huddart found the plaintiff might have been able to avoid the accident had he
been watching traffic in the third lane, where the defendant driver was coming
from as he entered it. But the plaintiff was looking to the east to see what
traffic was coming from that direction. Justice Huddart noted, at para. 8,
however, that when the plaintiff entered the unmarked crosswalk in front of a
bus that had yielded the right of way to the plaintiff:

[8]        … [The plaintiff]
was entitled to assume that all drivers would obey the rules of the road and
yield the right of way…. [I]n the absence of overt negligence on Mr. Woodhouse’s
part, Mr. Gill must bear full responsibility for the accident. This is
clear from a long line of authorities, especially Coso v. Poulos, [1969]
S.C.R. 757, 5 D.L.R. (3d) 465; and Jung v. Krimmer, (1990), 47
B.C.L.R. (2d) 145 (B.C.C.A.).

[126]     In Bourne (Guardian ad litem of) v. Anderson,
[1997] B.C.J. No. 915 (S.C.), Justice Hood considered the duty of a driver
proceeding through a residential area where the presence of children is known
to the driver or ought to have been known to them. The statement applies equally
to other circumstances, such as a school zone, in my view, particularly where
children are present, or where the driver ought to be aware of their possible
presence. He stated at para. 55:

[55]      … [Once] the
presence of a child or children on a road is known, or should have been known,
to the driver of a vehicle proceeding through a residential area were children
live, that driver must take special precautions for the safety of the child or
children seen, and any other child or children yet unseen whose possible
appearance or entrance onto the road is reasonably foreseeable. The precautions
include keeping a sharp look out, perhaps sounding the horn, but more
importantly, immediately reducing the speed of the vehicle so as to be able to
take evasive actions if required.

D.    Discussion and
findings

[127]     I find the defendant was travelling in the range of 30
to 35 km/h as she approached the unmarked crosswalk. This is what she testified
and agrees with what she told Mr. Linn.

[128]     Common to all the witnesses was their awareness of the
presence of many children in the area. The maximum speed was 30 km/h.
The presence of so many children in the area called on drivers to be extra
careful.

[129]     The Speed Scene photographs show the school zone sign
was visible looking south from Hillcrest Avenue.

[130]     As the defendant approached the unmarked crosswalk,
the evidence does not reliably reveal the position of her vehicle relative to vehicles
that had stopped in the curb lane.

[131]     Considering overall the distances involved and the
speeds of the vehicles and the roughly ten seconds the children waited for
southbound traffic to stop, I find that along the way of the defendant’s
approach to the unmarked crosswalk, she likely acquired a sightline that
encompassed children at the side of the road standing in the general vicinity
of the west side of the unmarked crosswalk. Even if she did not have continual
clear sightlines to their presence, I find vehicles slowing in the curb lane
should have alerted her to their likely presence. The lead vehicle was not the
only one slowing in the curb lane.

[132]     At 30 km/h, Ms. Mohoric would move at 27 feet per
second as she approached the unmarked crosswalk. Assuming she had kept or
adjusted her speed to that level well in advance of the school zone sign, which
was located about 460 feet from the stop light at Hillcrest Avenue to the north
edge of the unmarked crosswalk, she likely had over fifteen seconds to observe
the movement and slowing of vehicles to her right. I note the Speed Scene photographs
show the yellow school zone sign clearly visible from Hillcrest Avenue.

[133]     I find the defendant was focused on what was what was
occurring directly in front her at the expense of what was occurring to her
right; and had failed to notice that traffic slowing in the curb lane signalling
to her the likely presence of children either on the roadway or about to enter
it, once traffic had stopped to allow them to cross. She, therefore, overtook
slowing traffic in the curb lane. She failed to slow enough to allow her to
respond to the possible emergence of children from the curb lane. In the
circumstances, she should have stopped beside the SUV parked in the curb lane
before proceeding further, at least until such time as she could assure herself
no pedestrians were crossing Gladwin Road, or were about to. Had the plaintiff
responded right away to what was occurring to her right, she would have been
able to stop beside the curb lane SUV and not have to respond to the sudden
emergence of the plaintiff from the front of it. This is not a standard of
perfection, but one in conformity with what the conditions called for.

[134]     The defendant breached her duty under s. 179(3)
of the Act. She did not have the right of way.

[135]     Differing recollections are bound to populate witness
testimonies of a complex event six years after the event, even if the event is
a memorable one. As already discussed, each witness’s testimony falls short in
some respect. Of all the testimonies, I found Mr. Linn’s most
comprehensive and reliable, for reasons already stated. Counsel for the
defendant urged me to accept Stephanie Devereaux’s as the most reliable guide
to the location where the girls set off to cross Gladwin Road, and the witness
best positioned to see the plaintiff’s pace as she crossed the first lane of
traffic.

[136]     I disagree with counsel for the defendant that I
should prefer Stephanie’s testimony over that of all other witnesses. Stephanie
was ten when the accident happened. Adult witnesses and the layout of the area
do not support her testimony that the girls crossed the intersection to the
right of the sign near the northern end of the raised median. The raised median
and the sign about six feet south of its northern edge would stand in the
girl’s view, irrespective of where they were standing on the sidewalk. The
recollection of a ten-year-old child on a point so fine in the midst of so many
visual distractions is still worthy of consideration, but cautiously so, and in
light of all the other evidence.

[137]     The natural launching place to cross Gladwin Road is
the same area where the school pathway joins the sidewalk, within which would
lay the confines of the unmarked crosswalk, as fully discussed earlier. The
girls would have to go out of their way to cross to the right of the sign on
the raised median. Mr. Linn said he saw children coming down the school
path, as he often had before; and the girls standing and waiting to cross,
where he had seen children cross before, which also drew his attention.

[138]     The SUV in the curb lane appears to have stopped close
to where the girls were standing, between two and five feet away. Ms. Mohoric
had stopped in about the middle of the church driveway. She saw the plaintiff
pass from in front of the lead SUV. As stated earlier, diagram shows the girls
standing on the church side of the chain link fence. Ms. Taggart saw the
girls standing between where the path joined the sidewalk and the north end of
the raised median.

[139]     It is not possible to settle with confidence on the
exact position of the girls when Kyla stepped onto Gladwin Road. But
considering the evidence as a whole, I find it was either within the confines
of the unmarked crosswalk, or not so far from its south edge so as to divest
her of the right of way. Earlier, I noted some of the visual elements at the
scene, such as the slope in the sidewalk on the east side of Gladwin, which led
somewhat onto Gladwin Road; as well as the north and south crosswalk on the
east side of Gladwin that extended into the mall parking area and gave
pedestrians mall access. In my view, these visual elements could well signal to
a pedestrian, standing on the west side of Gladwin Road, the dimensions of an
unmarked crosswalk with width somewhat greater than 5’3”, but would not
encourage them to walk over the contract divider to the south of the unmarked
crosswalk.

[140]     This is not a case where the pedestrian had stepped so
far outside the confines of a clearly marked sidewalk that no one could conceive
they were never reasonably near to it. It is possible the girls were four feet
south of the southern edge of the crosswalk. But as Justice Donald noted in Dao,
(and as quoted earlier at para. 122 of these Reasons), this is not a
traffic court prosecution, where close measurements make a difference. “[W]hat
is important is that there is a legal regime that gives pedestrians a right of
way in unmarked crosswalks and that the motorists approaching an intersection
should be cautious in ensuring that no one is crossing behind stopped traffic.
The same duty of care rested on [the defendant] whether the children were in or
a few feet out of the crosswalk.”

[141]     In my view, considering all the circumstances, that
passage applies here. I find the plaintiff had the right of way when she
stepped onto Gladwin Road. She likely could not see around the defendant’s
approaching SUV when she stepped into the intersection. She was entitled to
expect traffic in the next lane would stop for her, and she did not lose her
right of way so long as she did not run or act in some other careless fashion
that prevented the defendant from avoiding the collision.

[142]     I find the defendant did not have the right of way and
breached her duty to slow her vehicle. I find that had she paid attention to
traffic in the curb lane, she would have become aware it was slowing and had
come to a stop. She failed to do so and did not notice the vehicles in the curb
lane to her right were stopping. Instead, she overtook them and continued
through the intersection without stopping to make sure children were not
crossing in front of the lead SUV in the curb lane. The presence of the
children on the right called for greater vigilance on her part. She should not
have continued at the maximum posted speed of 30 km/h, but should have lowered
her speed so she could respond to all eventualities.

[143]     As for the defendant’s eye problems, counsel for the
plaintiff stresses the fact that the defendant had undergone cataract surgery
on her left eye and that she had an appointment for the right eye the day after
the accident. According to Dr. Hankey, the defendant had 20/40 vision,
unaided, in the left eye after surgery and 20/40 vision in the right eye aided.
She is farsighted, although, with some impairment. The defendant was not
wearing prescription glasses the day of the accident. Counsel for the defendant
submits Dr. Hankey’s evidence adds nothing to the question of the
defendant’s negligence. It is not possible to presume, he argues, that the
defendant’s cataract in her right eye materially impaired her vision the day of
the accident. He further submits the evidence does not suggest that if the
defendant’s vision were impaired, she would be so irresponsible as to drive.

[144]     I note Dr. Hankey had not prohibited the
defendant from driving as she fell within acceptable parameters for daylight
driving. It was not clear from the evidence whether the defendant was required
to drive wearing prescription glasses during the day. As noted, she is
farsighted; she requires glasses more for close objects. I find the evidence
does not clearly resolve the question as to whether her eye problems materially
impeded her vision.

[145]     Justice Meiklem made some apt comments in Blackburn
v. British Columbia, 2001 BCSC 1076 [Blackburn], on the
subject of drivers who suffer from a disability and become involved in a type
of accident that raises the question of whether their disability was a
causative factor; and, if so, of whether, because of it, their care fell short
of the expected standard. In Blackburn, the plaintiff had a hearing
impairment that prevented him from hearing emergency police sirens on a police
car as it travelled through an intersection. A collision occurred. Justice
Meiklem split liability 80/20 against the plaintiff. He pointed out at para. 18
that:

[18]      … It is not
negligent for a deaf person not to hear a siren. But a deaf person driving a
car must reasonably be aware that their own safety and the safety of other
motorists might be affected by that disability if reasonable compensations are
not made. Visual attentiveness takes on added importance.

[146]     Justice Meiklem noted that a person with a profound
hearing impairment must be that much more attuned to visual clues that signal
the presence of an emergency vehicle, such as vehicles stopping or not
proceeding on a green light. He noted that, “this is not requiring a higher
standard of care of deaf persons, but rather requiring a specific component of
reasonable care in specific circumstances.”

[147]     The evidence in the present case falls short of
establishing what causative effect Mrs. Heuchert’s vision problems would
have had in the circumstances. It establishes that the defendant was aware she
had some deficiencies in her vision, which called for a heightened awareness on
her part. But the defendant’s denial that her eye problems prevented her from
seeing traffic conditions to her right is not refuted, on the balance of
probabilities, by Dr. Hankey’s evidence.

E.    
Contributory negligence

[148]     In Mitchell (Guardian ad litem of) v. James,
2007 BCSC 878, Justice Hinkson, as he was, distilled basic principles and some
of the case law that addresses contributory negligence of children. At paras. 54-57,
he states:

[54]      Where a child of
more than tender years is alleged to be contributorily negligent,

“The most common formulation
of the test is to ask whether the child exercised the care expected from a
child of like age, intelligence and experience.” (Linden in Canadian Tort
Law, 8^th edition, at p. 153).

[55]      The classic
statement of the law relating to contributory negligence on the part of
children is found in the decision of the Supreme Court of Canada in McEllistrum
Estate v. Etches, [1956] S.C.R. 787 at 793, where Chief Justice Kerwin for
the Court stated:

It should now be laid down
that where the age is not such as to make a discussion of contributory
negligence absurd, it is a question for the jury in each case whether the
infant exercised the care to be expected from a child of like age, intelligence
and experience. In the present case the trial judge so charged the jury.

[56]      In MacDonald
(Guardian ad litem of) v. Manson, 2000 BCCA 114, [2000] B.C.J. No. 291,
the British Columbia Court of Appeal dismissed an appeal from a finding that a
seven year old was not negligent when struck crossing a highway when she had no
right of way, despite concluding that a ten year old would, in the same
circumstances, have been held to have been contributorily negligent.

[57]      In Messenger et
al. v. Sears and Murray Knowles, Ltd. (1960), 23 D.L.R. (2d) 297, the Nova
Scotia Supreme Court, en banc, found contributory negligence against a
boy aged five years and nine months for running across the street behind a car
without being able to see and without regard to approaching traffic.

[149]     At para 12 of Connell (Guardian ad litem of) v.
Dyck, [1998] B.C.J. No. 1792 (S.C.) [Connell], Justice Meiklem
noted that it is characteristic of children to be more prone to distraction
than the reasonably prudent adult:

[12]      Children commit more
and greater errors of judgment than adults and a momentary lapse in awareness
is to be tolerated and does not result in a finding of legal responsibility
(see Gonzalez v. Stewart, [1997] B.C.J. No. 2631, (1997) Vancouver
CA021250 (B.C.C.A.).

[150]     The defendant referred to Cook v. Tully, [1969]
B.C.J. No. 156 (S.C.), a case that made its way eventually to the Supreme
Court. The adult pedestrian crossed in a marked crosswalk at Oak and 27^th
Avenue in Vancouver. It was in the early morning, dark and raining. The
plaintiff was a little over one-third of the way across the intersection and
had entered the centre lane when she was struck. The trial judge held the
plaintiff either walked hurriedly, or was running, and that she did keep an
adequate look out.

[151]     The Supreme Court of Canada reversed the trial judge’s
one-third/two-thirds apportionment against the plaintiff because it failed to give
enough weight to the fact the plaintiff was in a marked crosswalk.

[152]     Counsel for the defendant submits Cook is
distinguishable from the present case because Kyla was either “walking quickly,
jogging or bolting”, was well outside the unmarked crosswalk, and was not
looking. He submits that either two-thirds apportionment of liability against
the plaintiff, or no less than a 50/50 split is called for. I note there is no
evidence to show Kyla did not look, although the evidence allows of that
inference.

[153]     In Miksch v. Hambleton, [1990] B.C.J. No. 1810
(S.C.), Mr. Justice Donald found blameless an adult pedestrian who had
briskly walked 4½ of six lanes of Broadway before she was struck in the centre
of the three lanes for eastbound traffic. He rejected the defence submission
that the plaintiff, who had hesitated for a moment before carrying on into the
striking lane, was half responsible. Donald J. referred to two similar cases, Petijevich
v. Law (1968), 1 D.L.R. (3d) 690; and Coso, supra; and to
s. 181(1) and (s) of the Act; noting that:

… [O]nce a pedestrian has
safely entered a crosswalk, absent any overt negligence such as running or
gesturing that could mislead motorists into thinking they may proceed safely,
the pedestrian may assume that the motorists will yield the right-of-way and
will share no responsibility if struck in the crosswalk.

[154]     Counsel for both the plaintiff and third party point
out that none of the cases cited by the defendant occurred in a school zone or
involved s. 179(3) situations where vehicles in the curb lane had stopped
to allow the pedestrians to cross.

[155]     Counsel for the defendant referred to Loewen v.
Bernardi, [1994] B.C.J. No. 1169 (C.A.) [Loewen]. The
sixty-nine-year-old plaintiff was attempting to cross from the south side of
South Fraser Way to the north side on a well-marked crosswalk. South Fraser Way
consists of five lanes, the centre one intended for vehicles that want to turn
left or right. A car in the centre westbound lane had stopped for the plaintiff,
indicating that the plaintiff had crossed the first two eastbound lanes, the
turning lane and the centre west bound lane, safely before he was struck. The
plaintiff waved a thank you to the driver who had stopped for him and then ran
into the next lane, the westbound curb lane, without looking. Justice
Carrothers noted that the trial judge had not adequately weighted the effect of
what is now s. 179(3). He thought the trial judge’s 25% apportionment
against the pedestrian was unfair and that, apart from the possible
contributory negligence of the plaintiff for running on without looking, he
thought the defendant was totally responsible. The Court reduced the
apportionment against the plaintiff to 10%.

[156]     Counsel for the plaintiff submitted the defendant’s
failure to recognize that vehicles in a school zone had slowed to a stop in the
curb lane, directly in front of an elementary school, in a school zone at about
3:00 p.m., with children clearly present in the area, was the sole cause of the
accident. He submits the earlier-cited passage in Coso and the Court’s
holding that pedestrians at a crosswalk where vehicles have stopped in the curb
lane to allow them to pass are entitled to expect vehicles in other lanes will
observe the actions of the curb lane vehicles, and also stop. The Court
commented that although extreme vigilance could have avoided the accident, the
circumstances did require the pedestrian to exercise it.

[157]     Each case of course must be decided on its own individual
facts. I will now summarize my findings regarding the right of ways of the
parties, followed by findings on contributory negligence.

[158]     In Lemieux (Guardian ad litem of) v. Evers,
2000 BCSC 1464, Justice Martinson found an 11-year-old boy canvassing a
neighbour on a fund-raising bottle drive with other children, and who had
crossed a street in response to his friends call over, was not contributorily
negligent. Justice Martinson found the defendant knew, or ought to have known,
children were present in the area and that the she had been speeding.
Commenting on whether the 11-year-old plaintiff was negligent, she commented:

[40]      Joey was an
intelligent 11 year old with some experience as to the rules of the road. He
was capable of being negligent. I conclude, however, that he was not negligent.
He acted like any 11 year old of similar intelligence and experience would be
expected to act. He did not dart out into traffic. Rather, he looked left
then right before entering upon the roadway. He stopped to check for traffic
once he could see past the van. It was safe to proceed at that point. He was
walking, not running. [Emphasis added.]

[159]     I find no
overt negligence on the part of the plaintiff occurred, such as running out in
front of the defendant’s vehicle, which would have prevented the defendant from
responding and stopping her vehicle in sufficient time to avoid striking the
plaintiff, had she responded appropriately to the vehicles in the curb lane
slowing and stopping at the unmarked crosswalk. This leaves the defendant
wholly responsible.

[160]     Therefore,
unless a finding can be justified that says the plaintiff failed to take
sufficient care for her own safety and so should see her damages reduced for
contributory negligence, the defendant is wholly responsible for the accident.

[161]     I find
that the plaintiff left the curb a little before the two girls standing there
with her. She was likely roughly two feet ahead of them as she entered into the
centre lane where the defendant’s SUV struck her. I find the plaintiff was
walking with purpose, at what most aptly, be called a brisk walk. I find that
she remained either within the confines of the unmarked crosswalk, or near
enough to its southern boundary, two or three feet, for her to retain the right
away. Further, as she was crossing an intersection where vehicles had slowed
and stopped for her to cross, even without a crosswalk, marked or unmarked, the
defendant was obliged to yield to her. And, as already noted, I find the
defendant had reasonable time and opportunity to stop her SUV before the crosswalk,
had she been more observant.

[162]     The
remaining question is whether the plaintiff failed to take reasonable care for
her own safety. Factors that weigh in favour of a finding are that she was age
10 at the time. As noted earlier, her mother testified that she was mature for
her age and generally a well-behaved child. She described the safety
instructions she gave Kyla to enable her to cross the street safely. This
included making eye contact with drivers. Kyla had not crossed the intersection
before, but she had crossed the intersection with her father. She had received
traffic safety instructions in school. Given her age and instructions, she is
capable of contributory negligence.

[163]     The
evidence does not show that Kyla failed to look before proceeding into the
centre lane, but that it is a reasonable inference. I note, however, that she
was crossing in front of an SUV and likely could not see the approach of the
SUV.

[164]     The way
Kyla crossed must be judged by the standard of a ten-year-old child of similar
intelligence and experience. Tasha and Stephanie, the two girls with Stephanie,
held back somewhat. I find they walked somewhat slower than Kyla did. They were
not struck. As noted earlier, Stephanie’s level of instruction was roughly
equivalent to what Kyla had received. Further, Kyla’s mother had called out to
her not to just run out, which was essentially a reminder to be mindful, which
Kyla acknowledged.

[165]     Finally, I
note again Justice Meiklem’s apt comment in Connell that children commit
more and greater errors of judgment than adults, and that a momentary lapse in
awareness is to be tolerated and does not result in a finding of legal
responsibility.

[166]     Had Kyla taken care to walk a little slower; and had
she stopped, looked and listened before entering into the next lane of traffic;
she could have avoided a collision. In Coso, the plaintiffs, through the
exercise of extreme vigilance, could have avoided being struck. I would not
characterize what was required of Kyla as ‘extreme vigilance’, but she was a
child not an adult. Considering the circumstances as a whole, I find that
Kyla’s failure to walk a little slower and her walking into the next lane
without checking, constitutes an error of judgment and a momentary lapse in
awareness. As Kyla crossed, she had to her left an SUV, which along with other
vehicles, had stopped to allow her and her friends to cross. She was in a 30
km/h school zone. It would not be unexpected of an adult, let alone a
ten-year-old child in a school zone, to feel a level of personal safety that
could momentarily distract them from all they had learned about safely crossing
intersections.

[167]     I do not find Kyla guilty of contributory negligence.

[168]     If I have erred in my reasoning, I would have followed
Loewen and not have found her more than 10% responsible.

[169]     I have not forgotten this accident has taken an
emotional toll on Mrs. Heuchert, the defendant driver, and so will say
something to her. I encourage her to appreciate that anyone can fall short of
what is expected of them at some point. These findings in no way reflect on her
good character. They determine who is legally responsible for what occurred.

[170]     Although this disposes of what I have been asked to
decide, in case this matter goes further, I must still deal with the
defendant’s claim against the third party for negligent supervision.

IV.  The
third party negligent parenting claim

A.   
Overview of parties’ positions

[171]     The defendant submits the third party breached the
standard of care of a reasonably prudent parent, considered in light of the
standard of care generally accepted by parents generally in the community. Arnold
v. Teno, [1978] 2 S.C.R. 287 [Teno]. The breaches alleged are:

a)       allowing the plaintiff to cross at the location of the unmarked
crosswalk;

b)       neglecting to require the plaintiff to cross at Hillcrest
Avenue, the nearby controlled crosswalk;

c)       assuming she crossed within unmarked crosswalk, failing to show
that the plaintiff had sufficient ability to safely cross such a busy road on
her own;

d)       failing to recognize the plaintiff’s lack of sufficient judgment
in light of her arguing that she wished to rollerblade home; and

e)       failing adequately to supervise the crossing, and to ensure the
plaintiff across all lines safely by waiting for traffic to stop in each and
every lane before allowing the children to proceed. Asserting that calling out
to the plaintiff “do not just run out” was an insufficient discharge of her
duty.

[172]     Counsel for the defendant submits that although an
unmarked crosswalk can lie within a T-intersection, their layouts make it hard
for drivers to see where an unmarked crosswalk lies within in them. This is
why, he submits, jurisdictions such as Alberta and Yukon do not recognize
T-intersections. He further submits given the presence of four busy lanes of
traffic north and south, with an unusual pattern at the intersection that
includes vehicles exiting the mall access road into the path of the children,
called for extra parental vigilance.

[173]     Counsel for the third party submits the defendants
failed to discharge their onus of proving Christina Taggart failed to meet
standard of care expected of an ordinary reasonably careful parent, and thereby
exposed the plaintiff to an unreasonable risk of foreseeable harm. He points
out the standard is not perfection: parents are not required to guard against
every risk of foreseeable harm, only against unreasonable risks.

[174]     In brief, the third party submits the evidence shows Ms. Taggart
had instructed her daughter properly; that she was mature enough to cross
safely at that time and that the unmarked crosswalk was commonly used by
schoolchildren and others in the community.

[175]     Defence counsel submits that Michele Devereaux gave
Stephanie safety instructions that were superior and more appropriate for a
ten-year-old child than those Ms. Taggart party gave the plaintiff.
Stephanie’s safety instructions included the importance of using only marked
and controlled crosswalks. He further pointed out that when Stephanie turned
age ten she had a “big conference” with her mother. In it, she stressed the
importance of using marked crosswalks. Ms. Devereaux testified that, in
her opinion, neither the unmarked crosswalk nor the raised median were safe
places for the children to cross.

[176]     Counsel points to Stephanie’s testimony that as the
plaintiff almost jogged, she walked, which he submits showed she had received
better instructions than the plaintiff. He also points to Stephanie’s testimony
that the only reason she was willing to cross over the raised median was that Ms. Taggart
had approved the girls having crossed at that location. It was not clear from
the evidence, however, whether the question of her crossing there had ever come
up before.

[177]     Counsel points out Stephanie had testified her mother
gave her a map to her workplace that led her only through marked crosswalks. I
note, however, that cross-examination of Stephanie’s mother revealed she did
use an unmarked crosswalk on the way to her mother’s workplace.

B.   
Testimony of the third party and other witnesses on community standards

[178]     Ms. Taggart testified that she and her husband
had been in the community for many years. During that time, she said, the
unmarked crosswalk had been a commonly used place for kids to cross. She added:

Because it’s commonly been
over the years – and we’ve been there many years. My son still goes to that
school. It’s a common areas for kids to cross. At that time it was even more
used than it is now, … [because] there’s a lot more parking spots available
at the church than there used to be. They repaved it. And also different
principals – the ones at time Kyla got hit would — they’d block off some spots
which would not allow them to be used, so people used to cross – or park across
at the mall and cross there.

[T: August 13, 2012, p. 75,
lines 46-47; and p. 76, lines 1-9.]

[179]     Les Cartwright, Jason Linn, and Leslie Mohoric
corroborated Ms. Taggart’s testimony that children commonly crossed the Gladwin
Road in that area.

[180]     Kyla confirmed she been taught road safety principles
both by her mother and at school.

[181]     Kyla was a good student with no behavioural problems.

[182]     As for safety instructions, Ms. Taggart testified
that she taught Kyla “the basics:” walking on the sidewalk; how to press the
button to make the lights change; to wait for hand signals and look both ways
before stepping off the curb; and to make sure cars are stopping. She says she
taught her children, before and after the accident, to be diligent about
looking both ways and to make eye contact with drivers.

[183]     Ms. Taggart was aware that Kyla had occasionally
walked home from school with her father and that she had crossed Gladwin Road
along the mall access road frequently, when weather permitted.

[184]     Ms. Taggart could not recall a specific time when
she had crossed a busy four-lane road with Kyla, but did generally recall they walked
a lot and occasionally had crossed such intersections.

[185]     As for Stephanie Devereaux, Ms. Taggart knew Stephanie
walked alone fifteen minutes to her mother’s workplace; and given this, thought
of her as an independent child.

[186]     As mentioned earlier, when the girls were standing at
the side of the road, Ms. Taggart reminded Kyla to look out for cars, and
not to just run out, which Kyla acknowledged by saying, “I know mom.”

[187]     On cross-examination, she disagreed it was a bad
parenting decision to allow Kyla to cross an unmarked crossing instead of
sending her to the intersection at Hillcrest Avenue, about 100 metres north the
school. On redirect, she explained why she disagreed with the suggestion.

Because my daughter was
intelligent. She was mature. She’s the oldest of my three. She has been on
several walks with us. She knows the rules of the road. That’s a school zone,
so you expect that people are taking extra cautions when they’re driving and
driving slower.

[188]     In sum, counsel submits that the training each parent
gave and the maturity of Kyla and Stephanie were roughly equivalent.

C.   
Legal principles, parental negligence third party claim

[189]     An error of judgment standing alone does not prove
negligence if the parent’s actions are those a reasonably careful parent might
have taken, viewed by the standard of care generally accepted in the community.
The standard of care is not one of perfection. It does not require a parent to
take every possible step to ensure the safety of the child. It includes both an
objective and subjective aspect.

[190]    
The objective aspect requires a determination
of the community standard at the time generally expected of a reasonably
prudent parent. The subjective aspect places the reasonably prudent parent in
circumstances identical to those Ms. Taggart faced at time, and knowing
only what she believed and understood. (See: Teno; and
LaPlante (Guardian ad litem of) v. LaPlante, [1995] B.C.J. No. 1303
(C.A.)).

[191]     The “community” is the community where the accident
occurred.

[192]     When drivers know children may be present, they must
take special precautions. Bourne (Guardian ad litem of) v. Anderson,
[1997] B.C.J. No. 915 (S.C.); and Lemieux (Guardian ad litem of) v.
Evers, 2000 BCSC 1464.

D.   
Analysis of liability on the third party claim

1.    
General factors known to the third party

[193]     In my view, the claim against the third party ought to
be dismissed.

[194]     Turning first to the community standard, one of the
more obvious markers of a community standard is the presence of road signs,
barriers, and other types of signs that caution, direct, or deter members of
the community. In the present case, the most obvious objective marker of
community standards are the school zone signs, and their limiting of speed to
30 km/h on school days and school hours – when the accident occurred.

[195]     Another marker of community standards is the legal
definition of an unmarked crosswalk. In this case, the definition includes an
unmarked crosswalk, as laid down in the way discussed earlier. If the community
thought an unmarked crosswalk in this location posed an undue risk to children crossing
alone and wished to deter them from using it, it could have erected a visual
barrier or notice to that effect. No signs directed the children wanting to
cross Gladwin Road to use the marked and signalled crosswalk 100 metres to the north
at Hillcrest Avenue. No evidence suggested the school had instructed the
children to do so. No evidence showed the school administrators had sent parents
notices asking them to ensure their children did not cross Gladwin Road at the
location of the unmarked crosswalk. These considerations are relevant to
determining the community standard, but of course they do no relieve a parent, or
a person standing in their stead, from making their own individual assessment
of risk based on all the facts known to them at the time.

[196]     While I agree with counsel for the defendant that the
intersection was in some aspects more complex than a typical four-corner
intersection; and that the presence of an unmarked crosswalk in that location is
not as obvious there as in some other places, the fact remains that an unmarked
crosswalk was present at that location. Members of the community, including
unaccompanied school children used it. The defendant did not know what makes up
an unmarked crosswalk and so could not have known what to look for in any case.
But given the defendant had lived on Gladwin Road for many years and was
familiar with the area around the school, I find that she previously likely
encountered children or adults crossing Gladwin at the location of the unmarked
crosswalk during school hours.

[197]     For a pedestrian on the west side of Gladwin wanting to
cross over to the mall at the location of the unmarked crosswalk instead of
walking the hundred metres to Hillside Avenue and cross the unmarked crosswalk
to the mall, the unmarked crosswalk represents a fairly obvious choice.

[198]     I find it generally known in the community,
particularly in the Hillcrest School community, that both accompanied and unaccompanied
children and adults make use of the unmarked crosswalk to cross Gladwin Road.
It is true that 100 metres to the north, Hillcrest Avenue, with its pedestrian
signal controls and its marked crosswalk, offered greater protection; but it is
not free of risks either. Hillcrest Avenue lies outside the school zone.
Southbound traffic can pass straight through the intersection at South Fraser
Way and approach the Hillcrest intersection at a higher speed than expected of
drivers in a school zone, thus leaving less of a margin for driver and
pedestrian error. This is not to say that the Hillcrest intersection is not a
safer location, all circumstances considered, but to point out it is not free
of risks to pedestrians who cross there, outside the controlled speed offered
in a school zone.

[199]     Ms. Mohoric described the scene at the school as
chaotic. Much activity outside a large elementary school at 3:00 p.m., when so
many children are outside the school and where parents and other caregivers are
coming and going, is only to be expected. But I heard no evidence to suggest
traffic where the girls wanted to cross was so chaotic at the material time that
it would give a reasonably prudent parent, aware of all the circumstances known
to Ms. Taggart, clear reason to prevent the children from crossing. Of
course, children’s movements can be unpredictable. The obvious presence of a large
number of children in the area called on drivers to exercise extra vigilance,
irrespective of whether the crosswalk was a signalled, a marked, or an unmarked
one.

[200]     No vehicles were parked on the side of the road and so
hide the presence of a child, as can occur in some cases. In this case, the
presence of the children around the school was obvious. The school zone sign cautioned
drivers entering the zone that their speed in the zone must not exceed 30 km/h
on school days between school hours, irrespective of whether children were
present outside the school. The presence of active children around the
school calls for additional vigilance that could in turn call on the driver to
drive less than the 30 km/h maximum posted, and more so, the closer they get to
where the children are active. I find a reasonably prudent parent, aware of
these circumstances, would reasonably expect drivers moving in the zone to be
extra vigilant as they approached the school.

[201]     I find a reasonably minded parent in Ms. Taggart’s
place would have considered all of these circumstantial factors when deciding
whether to allow Kyla and the other girls to cross the unmarked crosswalk.

[202]     Although Michele Devereaux testified she would not
choose to allow her child to cross at the location of the unmarked crosswalk,
counsel for the third party pointed out that Stephanie walked from the school a
distance of 15 minutes to her mother’s work place. The route to Ms. Devereaux’s
work place saw her cross four lanes of traffic on the busiest road in
Abbotsford, South Fraser Way. Not all the crossings on the way had signal
lights and a marked crosswalk. Ms. Devereaux granted she was concerned
about Stephanie’s safety despite her instructions. Counsel pointed out,
nonetheless, that Ms. Devereaux accepted the risk because she believed
that, with the safety instructions she had given Stephanie, she could complete
the route safely. Stephanie had navigated the route without incident.

[203]     In my view, a reasonably prudent parent would not
think Ms. Devereaux’s choice exposed Stephanie to an unreasonable risk of
harm.

[204]     I find the traffic safety instructions Ms. Taggart
gave Kyla were similar to those Ms. Devereaux gave to Stephanie. Both met
the standards that a reasonably prudent parent would find enough to equip a
well-behaved ten-year-old child of average intelligence and without any
relevant disability to cross an unmarked crosswalk safely.

2.    
Specific circumstances known to the third party

[205]     I turn now to summarize the specific circumstances
known to Ms. Taggart at that time. At least four drivers, one of them, Mr. Linn,
northbound on Gladwin, had stopped to let the children pass. Ms. Taggart
saw that vehicles had stopped in the curb lane to let the children stop. Ms. Taggart
considered this and expected other approaching vehicles to respond in the same
way.

[206]     She knew Kyla to be a good student, “pretty mature for
her age,” and well behaved. She had instructed Kyla on traffic safety,
including on occasions when opportunities arose, such as when they went on
walks, as they often did.

[207]     She called out a reminder to Kyla not to just run out
and Kyla called back, “yes, I know mom.”

[208]     While perfection might have called on Ms. Taggart
to stand by the unmarked crosswalk and oversee the three girl’s crossing, she
had three other younger children in her care. I find a reasonably prudent
parent, aware of all the circumstances, would not find her choice to stand
between the car with the children inside it and the unmarked crosswalk
unreasonable. She could communicate with the girls from there and did so. She
believed she had instructed her child how to cross safely. Kyla was crossing
with two other ten-year-old girls, who Ms. Taggart knew had acted
independently previously and were responsible.

[209]     Although Kyla made an unreasonable request to
rollerblade home, Ms. Taggart refused it, and took her rollerblades away.
There is no evidence of risky behaviour by Kyla from that point until the
crossing.

[210]     I agree with counsel that, even if Kyla was somewhat
outside the unmarked crosswalk when she crossed Gladwin, that would have no
material bearing on the Defendants’ claim against Ms. Taggart.

[211]     Considering these and all the other circumstances
referred to earlier in these reasons, I find, that Ms. Taggart’s actions
met the standard expected of a reasonably prudent parent in the community finding
themselves in the position that Ms. Taggart found herself in and
possessing the knowledge Ms. Taggart had at the time.

[212]     The case against the third party is dismissed. I find
the defendants fully liability for the accident. I do not find the plaintiff
guilty of contributory negligence. Disposition of liability on the main action can
be found beginning at paragraph 127.

“N. Brown J.”