IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130719

Docket: M102078

Registry:
Vancouver

Between:

Mei Lee

Plaintiff

And

Thanh Thien Phan

Defendant

Before:
The Honourable Mr. Justice Blok

Reasons for Judgment

I.                
Introduction

[1]            
Mei Lee was injured in a car-pedestrian accident that took place on
December 29, 2008.  Ms. Lee was the pedestrian.

[2]            
The issues of liability and damages were severed by order made December
21, 2012 and a trial proceeded on liability alone.  These reasons for judgment
address the issue of liability.

[3]            
Wintery conditions played a significant part in the events giving rise
to the accident.

II.              
Witnesses

Mei Lee

[4]            
Ms. Lee, who is currently 52 years old, is originally from China
but she immigrated to Canada in 1986.  She gave her testimony through an
interpreter.

[5]            
The accident occurred in the 1300-block of Renfrew Street in Vancouver.  At
that time Ms. Lee lived on nearby Kitchener Street.  She drove home from
work and, while she usually parked her car in the garage of her house, the
accumulation of snow prevented access and so she drove north along Renfrew Street
to find a place to park.  As she proceeded along Renfrew she saw a parking spot
across the street, so she turned into Charles Street, turned around, and
proceeded slowly southbound on Renfrew, retracing her route in part.

[6]            
Ms. Lee said that the roads generally were snow-covered, and
Renfrew in particular was covered with snow, with only one lane available for
travel in each direction.  Renfrew Street normally has two lanes of travel in
each direction.

[7]            
Ms. Lee said that she parallel parked in the available spot, but it
took several attempts because her car was hitting the snowbank next to the curb.
Once parked, there were vehicles parked both ahead of her vehicle and behind
it and there were piles of snow around the vehicles.  Ms. Lee went to get
her groceries out of the trunk, but because she could not get access to the
rear of her car she instead accessed the trunk from the corner of her vehicle
on the driver’s side.

[8]            
Ms. Lee said that it was her intention to go to the sidewalk
directly from the rear of her vehicle, but the pile of snow that was in between
prevented her from doing so.  There was even more snow to the south of her car
(that is, in the direction she intended to go) so she headed the other way,
carrying two bags of groceries.  She said she was wearing dark, jean-type pants
and dark shoes, and later evidence established that she was wearing a white-coloured
jacket with a hood.

[9]            
Ms. Lee walked northbound past the vehicle that was parked behind
hers. She was focused on finding a spot to gain access to the sidewalk. She
said:

At that time I saw lights, lights
that were shining right at me, and I also heard noises, noises so loud, and
before I knew it this car was right there and hit me, right in front of me. What
happened was I ended up in the snow.

[10]        
In cross-examination she agreed that there was no car parked behind the
vehicle immediately behind hers, but she said she could not access the sidewalk
even at that point because of the pile of snow.  She said that as she walked
northbound from her car she was no more than an arm’s length out from the rearward
vehicle as she passed it, but she did not continue in a straight line and was instead
walking on a pile of snow in the parking lane.  She had walked one to one and a
half “house lengths” from her car before the accident happened.

[11]        
When it was suggested to her that she had time to take one or two steps
to get out of the way of the oncoming car, Ms. Lee said that she had one
foot on top of the snow but the other one was buried in the snow and she could
not move that foot.  She denied that she tripped or fell, maintaining that she
was struck by the vehicle.

[12]        
She acknowledged that the accident location was in between two street
lights, but said that she could see clearly.

[13]        
Ms. Lee said that her leg ended up under one of the wheels of the
car that struck her.  She said that the driver of the vehicle got out of the
car, had a look and then went back inside his car.  She thought he was going to
drive away, and that she was going to die, so she called at him to stop, and he
did.  He then tried to pull her leg out from under the tire.  Ms. Lee was
able to make a phone call to her sister, telling her what had happened and indicating
she thought she “wasn’t going to make it”.  Ms. Lee said she did not
recall how her leg was eventually freed from under the tire.

[14]        
Ms. Lee firmly denied the suggestion that she had, at any time, an
intention to jaywalk across Renfrew Street.

Thanh Thien Phan

[15]        
Mr. Phan, who was 42 or 43 at the time of trial, is originally from
Vietnam.  He immigrated to Canada in 1992.  He has taken some courses in
English language training, and he can read English a little bit, but he gave
his evidence at trial through an interpreter.  He works as a baker.

[16]        
On the evening in question he had worked from 3 to 9 p.m. at the bakery
and was on his way home.  He was driving a 1990 Toyota Camry, which he had
owned for two years, and the car was in good condition.  It had recently been fitted
with new tires and brakes.

[17]        
He drove home by his usual route, which took him from Main Street, then west
on Hastings Street, and then a right turn onto Renfrew.  His usual route then
takes him to 1st Avenue.  Had there been any problem with this route due to
snow or ice he would have taken an alternate one.  He knew to be extra careful
when driving because he had heard on the radio that the snowfall was the third
heaviest in history.

[18]        
Mr. Phan said that the conditions on Renfrew were “normal” until
close to the accident site.  He said he maintained a speed of 30 to 40 km/h on
Renfrew to the point that the road started going slightly uphill.  On the right
he saw a shadow moving, 10 metres away from his car.  He said he was not sure
if the person was on the sidewalk or on the road because there was a lot of
snow.  In discovery admissions read in at trial Mr. Phan said that the
pedestrian was on the snowbank.

[19]        
Mr. Phan said that he then glanced at his speedometer and looked at
the clock.  The clock indicated 9:20 p.m. and the speedometer indicated that
his speed was 40 km/h.  He then tapped on the brakes lightly because he was not
sure what the pedestrian’s intention was.  It seemed to Mr. Phan that the
pedestrian was proceeding to the east side and so Mr. Phan thought that
she was trying to cross Renfrew.

[20]        
When he tapped the brakes they did not help at all, so he knew that
there was ice.  He then glanced to the left side of the road and saw some cars
coming the opposite way.  He then saw that there were no cars parked on the
right-hand side so he took his foot off the brake pedal, turned on his
emergency lights, honked the horn, and steered the car into the snowbank on the
right hand side.  His car ended up with the front about a metre and a half from
the curb at an angle of 60 degrees compared to road, with a snowbank at the
front of the car.

[21]        
Mr. Phan said it was the snowbank that stopped his car.  The
snowbank was one to three feet high and higher than the height of his car’s
bumper.  Asked when he last saw the shadow that was the pedestrian, he said he
did not pay attention to the shadow anymore, as he just tried to control his
car and steer it into the snowbank.  Mr. Phan said that as he went over
the snow his car made a loud noise.  His car ended up being stuck in the snow.

[22]        
There were street lights in the area but they were not very bright, and
the pedestrian was not wearing anything that separated her from the darkness.  It
was only later that he saw that the pedestrian was a woman.

[23]        
After his car stopped he opened the door, got out, took two or three
steps and looked to the front.  He saw a woman about 55 years old wearing very
thick glasses, a white coloured jacket with a hood, hair covering her eyes, and
wearing a big pair of shoes with fur.  She was lying in the snow.  Her eyes were
closed and she was “shaking a little bit”.  He did not try to communicate with
her.  Instead, he ran out into the street trying to flag down other cars for
help.  The police arrived and five minutes later an ambulance came on the scene.
Mr. Phan said that when the police attended, one of the officers slipped
and fell on the icy road.

[24]        
Mr. Phan denied that his car hit the pedestrian at any point.  He
said that he was confident in saying that because there was no sound of an
impact, when he stopped he saw that the woman’s body was still three or four
feet away from his car, and if he had hit her he would have heard her “yelling
or something”, which he did not hear.  He also said that there was no damage to
his vehicle as a result of this accident.  He said that he did not move his car
until everyone else had left.

[25]        
In cross-examination, Mr. Phan agreed that he never lost control of
his vehicle.  He said that after he tapped on the brakes and realized that the
road was icy, he took his foot off the brake pedal and used the steering wheel
to steer into the snowbank.  He said that his car “zigzagged” in response to
his tapping of the brakes.  When this happened he turned on his warning
flashers and then he honked his horn three or four times.  Asked at what point
he looked at his speedometer, he said that it was at the point that he was 10 metres
away from the pedestrian.  Asked what the pedestrian was doing during this
time, he said that he did not pay attention to that.  He said, however, that
from the time he looked at the speedometer to the time of impact he thought
that about 15 seconds elapsed, over a distance of perhaps 8 to 10 metres.

[26]        
Mr. Phan agreed that he never saw the pedestrian take any step away
from the snowbank, saying that when he first saw her he did not know what she
was doing, so he focused on controlling his car.

Other Witnesses

[27]        
Ms. Lee’s nephew, Tyler Tsui and her son, Calvin Chan, also gave
evidence.  Both are university students.

[28]        
At that time, Mr. Tsui resided at the same address as his aunt and
his own mother.  On the evening in question his mother received a call that his
aunt had been hit by a car, close to their home.  Mr. Tsui and his mother
ran outside to Renfrew Street looking for the accident site.  Eventually they
found it when an ambulance pulled up.  They then crossed Renfrew Street at
Charles Street.  Mr. Tsui said that they did not cross mid-block because
there was too much snow piled up.

[29]        
At the site he saw his aunt lying on her back, parallel to the curb,
with her feet facing north.  He yelled at her in Cantonese, but she did not
respond and seemed unconscious.  His aunt was on a snowbank. Mr. Tsui
described the snowbank as being approximately up to his knees in height,
although at some points it was up to his mid-thigh.  At its lowest it was up to
his shin.  He said the snowbank became higher toward the curb.  The snowbank encompassed
the entire parking lane and “spilled a bit” into the driving lane.  His aunt
was lying approximately in the middle of the parking lane.  He said the road
conditions were slightly icy, but it was not too bad and of the three or four
vehicles he saw travelling on Renfrew he did not see any that seemed to be
having any control problems.

[30]        
Mr. Chan, Ms. Lee’s son, did not attend at the accident scene (he
was not home at the time) but went to see his mother at Vancouver General
Hospital as soon as he heard about the accident.  He saw her strapped in a bed
wearing a neck brace, and barely communicating either to him or to the nurses.  A
nurse pointed out his mother’s injuries, and he saw that her legs were swollen
and red, with horizontal marks and redness just below her knee on her right leg.
He had not observed those marks on her leg prior to that night.  On discharge
from hospital his mother had difficulty walking and she had not had any walking
difficulties prior.

[31]        
Mr. Chan took a photograph of the accident scene around mid-morning
the next day.  I will comment on this photograph later.

[32]        
A police officer, Constable Sommerville, testified as part of the
defence case.  At that time of trial he had been with the Vancouver Police
Department for nine years.  In preparation for his testimony he reviewed the
documents on file that related to the December 29, 2008 accident.  Asked if he
had a specific recollection other than what he had read in the file, he said
his recollection was limited to “just how bad the road conditions were.”  He
said that they had noticed how slick and unpredictable that stretch of Renfrew was,
from Hastings Street to 1^st Avenue, the slipperiness occurring in
patches.  As a result of their observations they had just called their dispatch
in order to ask for a city crew to come out.  Cst. Sommerville thought that
this had taken place about 10 minutes prior to receiving the call for the
subject accident, which call came at about 9:40 p.m.  Cst. Sommerville said
that “we had driven it and were all over the road and that it was probably the
worst or one of the worst I had seen in nine years, because of the
unpredictability.”  He noted as well that there is modest slope on that part of
Renfrew Street.

[33]        
When he and his partner arrived they saw a vehicle ahead of them that
was angled toward the curb.  He described the scene as being “really dark and
really slippery.”  He said that his partner almost fell when he got out of the
police car.  He was unable to make any observations of the victim because she
was already in the back of the ambulance and the ambulance was just leaving.  The
car that had been involved in the incident was located in the parking lane.  He
said that snowplows had pushed up clumps of snow on an intermittent basis, some
probably knee high.

[34]        
In cross-examination, Cst. Sommerville agreed that he made a record that
the car driver told him he had been travelling 40 to 50 km/h.

Expert Witnesses

[35]        
Both parties led evidence from accident reconstruction engineers as to stopping
times and distances and related subjects.  I will refer to some of the aspects
of the expert evidence in my analysis below.

III.            
Submissions

[36]        
The plaintiff submitted that the accident occurred because Mr. Phan
was inexperienced with driving in winter conditions and he either lost control
of his vehicle or he intentionally directed it off the road and into Ms. Lee.
Mr. Phan’s admission to the police officer that he was travelling at 40
to 50 km/h shows that he was proceeding at a speed suitable for clear
conditions, not those where snow and ice are prevalent.  Ms. Lee was off
the road, in a place of safety, and nothing she did was negligent in the
circumstances.

[37]        
The defendant submitted that the first question to be answered is
whether the defendant’s car struck the plaintiff at all or whether she merely
fell in the snow of her own accord.  She was probably intending to jaywalk, and
even if she did not have that intention, her presence on the road was negligent
and dangerous.  The conditions were treacherous, and Mr. Phan’s decision
to stop his car by driving into a snowbank was a reasonable one in the
circumstances.

[38]        
In the event that the Court might find that there had, in fact, been a
collision, the defendant submitted that fault ought to be attributed solely or
predominantly to Ms. Lee.

[39]        
Both parties made submissions that were critical of the credibility of
the other party.

IV.           
Discussion

[40]        
I begin by making a few credibility observations.  Both parties gave
evidence through interpreters and this created problems for counsel, for the court
and for the witnesses themselves, more so than in other cases involving
interpreted testimony.  Because of these problems I have given generous
latitude to each of the parties in assessing their credibility.  I found each
of the parties to be honest, giving their accounts of the events as they
perceived and remembered them.  Just how accurate were these perceptions and
recollections is the real question.

[41]        
The defendant says that the first question to be answered is whether
there was a collision at all. He says that there was no collision because: (1)
there was no damage to the defendant’s vehicle; (2) when he got out to look he
saw the plaintiff to be three or four feet away from his car; (3) there was no
evidence from any other witness that the plaintiff’s leg was pinned under the
tire, or that his car was moved to free her; and (4) there was no expert
evidence or photographs of the injuries said to have been caused by the impact.

[42]        
I conclude that it is more likely than not that the plaintiff was struck
by the defendant’s vehicle.  My reasons for this conclusion are as follows:

a)    Ms. Lee
said that she was struck by Mr. Phan’s car.  While Mr. Phan said he
did not strike her with his car, he also said that he did not pay attention to
“the shadow” once he was heading towards the snowbank.  He also said that he
did not see her fall. His observations of the event were therefore limited;

b)    I do not
consider that the lack of an impact sound or lack of damage to Mr. Phan’s
car is at all conclusive on this point.  As to the latter, I do not see that the
lack of vehicle damage means that there cannot have been an impact of any sort.
As to the former, Mr. Phan himself testified that his car was making a
loud noise as it travelled over the snow, and Ms. Lee testified to the
same effect.  I acknowledge that Mr. Phan testified that “when my car
smash in the snow the sound is different with the car hitting a person”, but I
find this evidence very difficult to accept;

c)     Mr. Chan,
Ms. Lee’s son, observed horizontal marks and redness on his mother’s right
leg, just under the knee, when he saw her in hospital.  While the defendant
made much of the fact that no photographs were taken of these injuries, I do
not see that this detracts from Mr. Chan’s evidence, which I accept.

[43]        
I recognize that there is a divergence in the evidence of the plaintiff
and defendant as to whether the plaintiff’s leg was under the wheel or whether
she was some three to four feet away from the car.  This difference is
irreconcilable on the evidence before me, although by way of possible
explanation I would note that the evidence also suggests that both witnesses
were in considerable distress at the time, with Ms. Lee thinking she was
going to die and then seemingly becoming unconscious, and Mr. Phan running
off to try to flag down help from a passing car without making any attempt to
communicate with Ms. Lee.

[44]        
As to Mr. Phan’s evidence that he did not move his car so as to
free Ms. Lee’s leg, Mr. Phan also testified that Ms. Lee was in
the snow for about 30 minutes, during which time people attended to her, and he
observed her for just 10 minutes of that time.  What might have been done by
others during this time is unknown.

[45]        
In any event, the divergence in this evidence does not detract from Mr. Chan’s
evidence of horizontal marks on his mother’s right leg, which corroborates Ms. Lee’s
evidence that she was struck by Mr. Phan’s car.

[46]        
Another area of testimonial difficulty was Mr. Phan’s description
of his activities between the time he saw the shadow that was Ms. Lee and
the time his vehicle came to rest.  Mr. Phan said he saw the shadow when
it was 10 metres away from his car.  After that moment, Mr. Phan: (1) glanced
at his speedometer; (2) looked at the clock; (3) tapped his brakes; (4) determined
that the road was icy; (5) looked to his left to see that there was oncoming
traffic, then saw that there were no cars parked on the right; (6) steered
his car to the right; (7) turned on his warning flashers; and (8) honked his
horn three or four times.

[47]        
At a speed of 40 km/h a vehicle traverses 11.11 metres in one second.  According
to the evidence of Mr. Cliff, the defence engineer, at that speed the
stopping distance on an icy surface, using cyclical braking, is 79.6 metres and
the total stopping time would be 9.5 seconds.

[48]        
It is difficult to know what to make of Mr. Phan’s evidence on this
point.  The number of tasks he said he completed seems unlikely enough as it
is, but it is simply impossible that he could have accomplished these in the
time available if his distance estimate of 10 metres is at all accurate.  But
as with the earlier evidentiary point, I find it unnecessary to resolve it.  What
is apparent from the evidence is that Mr. Phan saw a pedestrian, thought
that the pedestrian was about to cross Renfrew Street and so he steered his car
to the right, into a snowbank where, as I find, he struck Ms. Lee.

[49]        
It is also apparent from the evidence that Mr. Phan directed his
car off the road because he was under the impression that a driver should never
apply brakes on a slippery or icy road.  In admissions read in from his
examination for discovery Mr. Phan said:

60        Q         Let’s
back up a bit.  In your own words tell me how the accident happened?

 A          At
the time when I was driving and then the road condition became more, like,
slippery. At the time about 10 metre ahead and I look on the right side, I saw
the movement of a person that — this lady, and then she was, like, moving. And
then she stopped and then my reaction that time that I would supposed to, like,
direct my vehicle to — towards the snow bank to make it stop. That two reason.
First I didn’t want because that slippery section my vehicle hit another vehicle.
And secondly, that I did not know that object, you know, that person, she would
cross the street. And then that — I tried to manoeuvre to find a way to stop
my vehicle.

61        Q         Let’s
just stop there and back up a bit. Now, you indicated that you saw a movement
of a person when you looked to the right side. Where did you see this movement?

 A          I’m not sure at the time. I just try
to make my vehicle stop.

62        Q         Why didn’t you just hit your brakes to
see if you could stop?

 A          It’s the slippery road and then I
can’t, like, apply brakes.

63        Q         So
you at the time decided to turn your vehicle towards the right in an attempt to
stop your vehicle in the snow bank?

 A          Because
on the left side there was oncoming vehicle, oncoming traffic, and then on the
right side it was snow bank.

64        Q         And
was this a manoeuvre that you have some training or have experience using to
stop your vehicle with a snow bank in that particular vehicle?

 A          It’s for any
vehicle when it’s slippery, like icy road, you can never apply brake.

[50]        
I find that Ms. Lee did not attempt to jaywalk across Renfrew
Street, nor did she intend to do so.  There was no evidence to support this
other than Mr. Phan’s impression that this is what “the shadow” seemed to
be about to do.  I conclude that Mr. Phan’s impression was an erroneous
one.

[51]        
The defendant made much of Ms. Lee’s walking route, which he
described as “bizarre”.  The defendant also described the driving route Ms. Lee
took to find a parking spot as “circuitous, if not somewhat bizarre”.  As to
the latter, I find nothing illogical, much less bizarre, about Ms. Lee
identifying and then driving to a parking spot on the other side of Renfrew after
having seen that the access to her own garage was impeded by snow.  As to her
walking route, while it is true that she was walking north, away from her home
and away from a pedestrian-controlled light on Renfrew at Kitchener, she said
she felt that walking south was more dangerous so she walked the other way,
looking for a way through the snowbank in order to access the sidewalk.

[52]        
Walking in a direction that was facing the traffic was the safer option:
see Christie v. I.C.B.C. (1993), 79 B.C.L.R. (2d) 370 (C.A.) [Christie]
and s. 182(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

[53]        
In any event, the route Ms. Lee took undermines considerably the
suggestion that she was jaywalking, or that she intended to jaywalk, as she
would have had no need to walk north in the parking lane had it been her
intention to dash across Renfrew Street.

[54]        
Much of the remaining dispute between the parties centred on the issue
of Ms. Lee’s location at the time of impact.  On the evidence, I find as a
fact that Ms. Lee was walking in the parking lane of Renfrew Street.  I
base this conclusion on the evidence of both of the parties (Mr. Phan said
that she was on the snowbank and Ms. Lee said she was walking on top of
the snow) and Mr. Phan’s evidence that his car was halted by the snowbank one
and a half metres from the curb (which helps to fix the location of the
snowbank relative to the curb), together with the photograph of the scene taken
by Mr. Chan, which showed the snowbank as it was the next morning.

[55]        
A diagram of the scene, which by consent was marked as an exhibit and
agreed to be accurate, shows that there are two travel lanes in each direction
on Renfrew.  The lane closest to the centre line is 10’3” in width.  The other
lane together with the parking area is 21’ in width. Ms. Lee said that on
the night in question there was just one lane of travel in each direction, due
to the snowy conditions.  From the photograph of the scene taken the next day,
it would appear that the travel lanes were the ones nearest the centre line.  In
fair conditions this would mean that a pedestrian located in the parking area
would have no less than about 10’ of clearance (that is, at least the width of
the second travel lane) from the cars travelling in the lane closest to the
centre line.  In winter conditions and with the presence of the snowbank on the
night in question it is probable that the clearance was less than that.  Nonetheless,
I find that there was more than enough clearance for Ms. Lee to walk in
the area of the parking lane without being in any danger from traffic located
in the travel lane or interfering with that traffic in any way.

[56]        
Both parties cited a number of cases involving collisions with
pedestrians at crosswalks or collisions where wintery conditions were a
significant factor.  In view of my finding that Ms. Lee made no attempt to
cross Renfrew Street I do not find the crosswalk or jaywalking cases to be
particularly helpful.  The winter driving cases establish little more than the
general proposition that drivers should adjust their driving and use caution
appropriate to the conditions.

[57]        
Other cases cited by the parties were of more direct relevance.  The
plaintiff referred to Jensen v. Webb, [1982] B.C.J. No. 1268
(B.C.S.C.), where a pedestrian had been struck by a vehicle during wintery conditions.
The pedestrian was found to have been lawfully standing on the paved shoulder
after having crossed a two-lane highway.  The driver was found to be fully
responsible for travelling off of the roadway as he was driving too quickly for
the road conditions and there were no indications of braking, skidding or
evasive actions.

[58]        
The defendant cited Kilby v. I.C.B.C., 1990 CanLII 1711
(B.C.S.C.) [Kilby], where a pedestrian, walking on the paved shoulder of
a highway and on or near the the fog line, was struck by an unknown driver.  Lamperson
J. accepted the plaintiff’s version of events, though he was expressly hesitant
in doing so because the plaintiff’s injuries were not consistent with the
plaintiff’s version of the accident.  Lamperson J. found, however, contributory
negligence on the plaintiff’s part to the extent of 50% because the plaintiff
was not facing traffic when he was walking, he was not keeping any lookout and
was relying on motorists seeing him, and he was wearing dark clothing.

[59]        
Other “fog line” cases have had different results. In Eggleston v.
Watson, 2010 BCSC 890 [Eggleston], the plaintiff was walking on the
right-hand side of a roadway, facing away from traffic, one to two feet to the
left of the fog line (that is, on the travelled portion), when he was struck by
an impaired driver.  Davies J. distinguished Kilby and found that the
impaired driver’s conduct was so unforeseeable that no contributory negligence
could be found against the plaintiff.

[60]        
In Christie the plaintiff was walking with a companion along the
shoulder of a highway.  Both were wearing dark clothing.  They were walking
facing away from traffic, two and a half to three feet to the right of the fog
line.  The plaintiff was struck by a car that did not stop.  The trial judge
found the plaintiff 35% at fault for similar reasons as in Kilby.  The
Court of Appeal reduced the percentage of contributory fault to 10%, saying as
follows:

26.       While walking on the wrong side of the road may
have no significance in certain circumstances, to do so at night on the highway
in question here, dressed in dark clothing, for no reason other than
convenience, exhibits a want of care on the plaintiff’s part which enhanced the
likelihood of injury and so contributed to the injury he in fact suffered.

27.       With respect, however, the apportioned fault of 35%
is excessive and can only be attributed to the weight the trial judge attached
to the breach of s. 184 of the Motor Vehicle Act. The trial judge
found the plaintiff was walking inside the fog line and it is apparent that the
fault of the unknown driver was the major contributing cause of the plaintiff’s
injury.

28.       I would reduce the
plaintiff’s fault to 10%.

[61]        
To similar effect is Lang v. Porter (1991), 57 B.C.L.R. (2d) 253
(C.A.), where again 10% fault was attributed to the plaintiff because he was
not facing traffic as he walked.

[62]        
These cases are similar to the present insofar as they involve vehicles that
have hit pedestrians who were walking on non-travelled portions of roads.  In those
cases some plaintiffs have been found to have been contributorily negligent
because they were wearing dark clothing, they were not walking on the side
facing traffic or they were not otherwise keeping a lookout.  In one case (Eggleston),
despite the fact that the plaintiff was walking on the travelled portion of the
road while facing away from traffic, he was found not to be contributorily
negligent because the driver’s conduct was so unforeseeable, and the risk of
injury from the plaintiff’s failure to take more care so unlikely, that it was simply
not appropriate to find the plaintiff negligent.

[63]        
In the case at bar there are none of these contributory negligence
factors present.  While walking in the parking area Ms. Lee was well off
the travelled portion of the road, she was wearing a white coat and she was
facing traffic.  I also do not consider it reasonably foreseeable that a driver
would steer his vehicle off the road in an effort to stop where there is
nothing preventing that driver from simply proceeding straight ahead.

[64]        
Mr. Phan testified that he turned his vehicle into the snowbank
because he felt this was his only option given his conclusion that Ms. Lee
was about to jaywalk in front of him.  This, I have found, was an erroneous
conclusion.  Had he continued straight ahead there would have been no collision.
Mr. Phan also seems to have been under the impression that one should
never apply the brakes of a vehicle in icy conditions.  This is obviously wrong,
as the appropriate response is to apply cyclical braking, as confirmed by the
plaintiff’s engineer, Mr. Rempel.  For all of these reasons I conclude
that Mr. Phan was negligent.

[65]        
As for Ms. Lee, I am unable to accept the defendant’s suggestion
that she ought to be found to be contributorily negligent.  She was not in a
place that posed a hazard or obstruction to traffic, she was wearing a white
coat and she was facing in the correct direction towards oncoming traffic.  The
defendant has not established that Ms. Lee had any realistic opportunity
to get out of the way.  I see no negligence on her part.

V.             
Conclusion

[66]        
I conclude that the plaintiff was struck by the defendant’s car.  I find
the defendant entirely responsible for the accident.

“Blok
J.”