IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141118

Docket: M124813

Registry:
Vancouver

Between:

Tyler Wotherspoon

Plaintiff

And

Jenelle Hameluck

Defendant

Before:
The Honourable Chief Justice Hinkson

Reasons for Judgment

[1]            
In the late evening of July 27, 2009, the plaintiff sustained serious
injuries when he was involved in a collision with a motor vehicle that was at
that time owned and operated by the defendant. The collision occurred in the
intersection of Austin Avenue and Gatineau Place in Burnaby, British Columbia. Pursuant
to the order of the Registrar, dated March 28, 2014, the determination of
liability for the collision was ordered to be heard separately from the
assessment of damages. These reasons for judgment will therefore address only
the liability issues in the case.

Background

[2]            
The plaintiff was born on August 14, 1991. He was 17 years of age, and
lived with his parents and his sister in Port Moody on the date of the
collision. He had concluded his high school education in Port Moody, but was
attending summer school during the day in order to complete the requirements
for grade 11 Social Studies. He had a loosely enforced curfew of 11:00 pm.

[3]            
Although he resided in Port Moody, the plaintiff was fully familiar with
the area and the intersection where the collision occurred. He estimated that he
had been there 200 or more times before the collision, and I accept his
evidence in that regard.

[4]            
July 27, 2009 was a clear summer evening in Burnaby, British Columbia. That
evening, the plaintiff was wearing a grey T-shirt, a pair of long purple, black
and white shorts, and black running shoes with metal studs and bright red
laces. He had a long board and headphones with him.

[5]            
When the collision occurred, the defendant, her fiancé Mr. De La
Cour, (who is now her husband), and a third person, were returning from a
birthday celebration for a friend of the defendant’s fiancé in the defendant’s
1992 Hyundai Elantra motor vehicle. The celebration had taken place in
Vancouver, and the defendant was returning to Coquitlam to drop off her two
passengers.

[6]            
The defendant was also familiar with the area and the intersection, and
agreed that it was not unusual for people to be crossing Austin Avenue at its
intersection with Gatineau Place if the Skytrain had recently stopped. She said
that she noted pedestrians to her right, beyond the intersection of Austin
Avenue and Gatineau Place, as she headed east along Austin Avenue prior to the
collision.

[7]            
The traffic control lights at the intersection of Austin Avenue and
Gatineau Place rest with a green light for traffic travelling along Austin
Avenue. The control lights for traffic on Gatineau Place will only turn green
if there are vehicles waiting on Gatineau Place at the intersection, or if
pedestrians on Gatineau Place push the button to activate the crosswalk signal
to cross Austin Avenue.

[8]            
If the lights for traffic or pedestrians on Gatineau are triggered, the
control device will not change until there is a three second gap in the traffic
on Austin Avenue, after which the lights controlling traffic on Austin Avenue
will turn yellow for four seconds, and then all of the lights for traffic and
pedestrians in all directions at the intersection will turn red for one second,
following which the light for traffic on Gatineau Place will turn green. If the
pedestrian crosswalk light has been pressed, the crosswalk signal will turn to
a “Walk” signal at the same time that the lights for traffic on Gatineau Place
turn green.

[9]            
Once activated, the crosswalk signal for pedestrians on Gatineau will
display a “Walk” signal for seven seconds, following which, a “Do not Walk”
signal will be displayed for twenty-one seconds, while the lights allowing
traffic on Gatineau Place to cross Austin Avenue will remain green, and the
lights for traffic on Austin Avenue will remain red.

[10]        
Travelling east on Austin Avenue from the Lougheed Highway there is a
Skytrain station on the right hand side of Austin Avenue near the intersection
of Austin Avenue and Gatineau Place, and the Lougheed Shopping Mall to the
left. There is one left turn lane on Austin Avenue at Gatineau Place for each
of the east and west bound traffic and three eastbound and three westbound
through lanes. There are two through lanes for each of the north and south
bound traffic on Gatineau Place at Austin Avenue. There are marked crosswalks
on all four sides of the intersection.

[11]        
The distance from the south curb on Gatineau Place to the north curb on Gatineau
Place is twenty-seven metres at Austin Avenue. The distance from the west curb
on Austin Avenue to the east curb at Gatineau Place is twenty-six metres. The
crosswalks are roughly three metres wide. The distance from the intersection of
the Lougheed Highway to Gatineau Place on Austin Avenue is 147 metres.

[12]        
A vehicle travelling at a speed of 45 kmh will cover 12.5 metres per
second, and a vehicle travelling at 50 kmh will cover 13.9 metres per second.

The Parties’ Pleadings

[13]        
The plaintiff alleges that the defendant entered the intersection of
Austin Avenue and Gatineau Place (“the intersection”) when the traffic control
device for traffic eastbound on Austin Avenue was red, or in the alternative,
yellow. He alleges that the defendant was negligent in so doing, and
particularizes her alleged negligence as follows:

(a)        operating
the Hyundai without due care and attention and in violation of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 and amendments thereto;

(b)        operating
the Hyundai while her ability to do so was impaired by any one or more of
alcohol, drugs or fatigue, or any other impairment that may be proven at trial;

(c)        operating
the Hyundai without any brakes or, in the alternative, defective brakes, or, in
the further alternative, in failing to apply the Hyundai’s brakes in time to
avoid a collision in the circumstances;

(d)        operating
the Hyundai at an excessive rate of speed in the circumstances;

(e)        failing
to reduce the speed of the Hyundai reasonably or in time to avoid the collision
or failing to stop the Hyundai reasonably or in time to avoid the collision;

(f)         failing
to keep a proper and careful lookout;

(g)        failing
to keep the Hyundai under proper or any control;

(h)        failing
to confine her attention to operating the Hyundai;

(i)         failing
to take any evasive action;

(j)         failing
to take proper, or any, precaution to avoid a collision in the circumstances;

(k)        failing
to exercise due care to avoid colliding with a pedestrian on the highway;

(l)         failing
to yield the right of way to a pedestrian;

(m)       driving
a mechanically defective Hyundai; and

(n)        such further particulars as
shall be proven at trial.

[14]        
The defendant denies liability for the collision, and alleges that at
the time of the collision, the plaintiff:

(a)        was riding his long board without due care and
attention;

(b)        failed to keep any, or, in the alternative, an
adequate lookout;

(c)        failed to keep his long board under proper or any
control;

(d)        failed
to take reasonable or proper or any precaution to avoid the collision;

(e)        failed
to reduce the speed of his long board seasonably or in time to avoid the
collision, or in the alternative, in failing to stop his long board in time to
avoid the collision;

(f)         failed
to turn seasonably or in time to avoid the collision or failed to direct the
course of his long board to prevent it from coming into the collision when the
same was, or should have appeared imminent;

(g)        riding
his long board on a roadway without proper care and attention having regard to
the time and place of the collision, the climatic conditions, the nature of the
roadway, the traffic that was on the roadway, the mechanical condition of his
long board and his own physical and mental condition;

(h)        failed
to give any or adequate warning to the defendant when the collision was, or
should have appeared imminent;

(i)         directed
his long board into the path of the defendant’s vehicle in such a way that the
defendant had no opportunity to avoid the collision; and

(j)         failed
to wear proper protective safety garments including reflective clothing or a
safety helmet.

(k)        disobeyed the pedestrian
traffic control device and crossed contrary to the don’t walk signal.

Discussion

a)             
The Applicable Statutory Provisions

[15]        
Sections 125, 128, 129, 132, 178 and 181 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 [Motor Vehicle Act], are relied upon
by one or other or both of the parties. The relevant parts of these sections
provide that:

125. Unless otherwise directed by a peace officer or a person
authorized by a peace officer to direct traffic, every driver of a vehicle and
every pedestrian must obey the instructions of an applicable traffic control
device.

128 (1) When a yellow light alone is exhibited at an
intersection by a traffic control signal, following the exhibition of a green
light,

(a) the driver of a vehicle approaching the intersection and
facing the yellow light must cause it to stop before entering the marked
crosswalk on the near side of the intersection, or if there is no marked crosswalk,
before entering the intersection, unless the stop cannot be made in safety,

129  (1) Subject to subsection (2), when a red light alone is
exhibited at an intersection by a traffic control signal, the driver of a
vehicle approaching the intersection and facing the red light must cause it to
stop before entering the marked crosswalk on the near side of the intersection,
or if there is no marked crosswalk, before entering the intersection, and
subject to the provisions of subsection (3), must not cause the vehicle to
proceed until a traffic control signal instructs the driver that he or she is
permitted to do so.

(4) When a red light alone is
exhibited at an intersection by a traffic control signal,

(a) a pedestrian facing the red light must not enter the
roadway unless instructed that he or she may do so by a pedestrian traffic
control signal,

(c) a pedestrian proceeding across the roadway and facing
the red light exhibited after he or she entered the roadway

(i)   must proceed to the sidewalk as quickly as possible,
and

(ii)   has the right of way for that purpose over all
vehicles.

132  (1) When the word
"walk" or an outline of a walking person is exhibited at an
intersection by a pedestrian traffic control signal, a pedestrian may proceed across
the roadway in the direction of the signal in a marked or unmarked crosswalk
and has the right of way over all vehicles in the intersection or any adjacent
crosswalk.

(3) When the word
"wait", the words "don’t walk" or an outline of a raised
hand are exhibited at an intersection or at a place other than an intersection
by a pedestrian traffic control signal,

(a) a pedestrian must not enter the roadway, and

(b) a pedestrian proceeding across the roadway and facing
the word "wait", the words "don’t walk", or an outline of a
raised hand exhibited after he or she entered the roadway

(i)   must proceed to the sidewalk as quickly as possible,
and

(ii)   has the right of way for that purpose over all
vehicles.

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.

…

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.

 b)       The Duty of Care of Drivers and
Pedestrians

[16]        
The plaintiff relies upon the incontestable premise that pedestrians and
drivers owe a common law duty to take reasonable care for the safety of others
and themselves when using a roadway. That duty is, of course, supplemented by
the statutory duties found in the Motor Vehicle Act.

[17]        
As Mr. Justice Anderson stated for the majority in Cook v. Teh,
45 B.C.L.R. (2d) 194 (C.A.) at 203:

…s. 181(1) and (2) does not
constitute an exclusive code relating to rights of way between pedestrians and
vehicles. They are not a substitute for the common law duty of care owed by
pedestrians and drivers to exercise due care for their own safety and the
safety of others.

[18]        
The plaintiff contends that the case law establishes that once a
pedestrian is lawfully on a highway, the driver of a vehicle must yield the
right of way to a pedestrian.

[19]        
In Royal Trust Company v. Toronto Transportation Commission,
[1935] S.C.R. 671, Mr. Justice Davis, with whom the majority of the court
agreed, stated at 674:

Generally speaking, a motorman on
a street car is entitled to assume that a pedestrian or a motorist approaching
the street car tracks will stop to permit the street car to pass by and there
was in this case a statutory right of way in favour of the street car. But the
existence of a right of way does not entitle the motorman on the street car to
disregard an apparent danger that confronts him.

[20]        
In Hmaied v. Wilkinson, 2010 BCSC 1074, Madam Justice Dickson
discussed the relative duties of motorists and pedestrians at paras. 22 –
24:

[22]      When an accident occurs on a highway, the starting
point for analysis is a determination of who had the right of way. Generally
speaking, the party with the right of way is entitled to assume that other
highway users will obey the rules of the road: Enright v. Marwick, 2004
BCCA 259 at para. 22. In particular, drivers are ordinarily entitled to
expect that adult pedestrians will not jump out directly in front of them as
they are proceeding lawfully along their way: Enright, supra at para. 35;
Ibaraki v. Bamford, [1996] B.C.J. No. 724 at paras. 12-13.

[23]      Regardless of who has
the right of way, however, there is a duty upon drivers and pedestrians alike
to keep a proper lookout and take reasonable precautions in response to
apparent potential hazards: Nelson (Guardian ad litem of) v. Shinske
(1991), 62 B.C.L.R. (2d) 302 (B.C.S.C.); Karran v. Anderson, 2009 BCSC
1105. Depending on the circumstances, from a driver’s perspective one such
hazard may be a jaywalking pedestrian: Ashe v. Werstiuk, 2003 BCSC 184,
upheld 2004 BCCA 75; Claydon v. Insurance Corp. of British Columbia,
2009 BCSC 1077. If it is reasonably foreseeable or apparent that a pedestrian
will disregard the law and thus create a hazardous situation, a driver is
obliged to take all reasonable steps to avoid a collision. In such
circumstances, if the driver has a sufficient opportunity to avoid the
collision, but does not take appropriate evasive action, the driver will be
found negligent: Karran, supra; Beauchamp v. Shand, 2004
BCSC 272.

[24]      The standard required of drivers in responding to
pedestrian-created hazards such as jaywalking is not one of perfection. For
example, in Burke v. Leung, [1996] B.C.J. No. 938 (S.C.)
Kirkpatrick J. (as she then was) found the defendant driver was not negligent
when he struck a pedestrian who ran, mid-block, into his path, despite the fact
that other drivers in the area were able to stop in time: see also Addison
v. Nelles, 2003 BCSC 1860, upheld 2004 BCCA 623; Clifford v. Slater,
2007 BCSC 177. The applicable standard of care is one of reasonable prudence in
all of the circumstances.

[21]        
Nelson (Guardian ad litem of) v. Shinske (1991), 62 B.C.L.R. (2d)
302 involved a pedestrian who had crossed almost all of five lanes of a street
in a crosswalk, against the “Wait” signal. She was struck by the defendant’s
vehicle when she was only a few steps from the curb she was trying to reach.
The defendant did not see the plaintiff before she struck her with her vehicle.
Mr. Justice Fraser apportioned liability equally between the parties,
holding that the presence of the plaintiff in the crosswalk was not an
unforeseen emergency, but rather a reasonably apparent possibility, and that
had the defendant maintained a proper lookout, she would have seen the
pedestrian and could reasonably have avoided the collision.

[22]        
In Anderson v. Kozniuk, 2013 BCCA 46, the Court of Appeal upheld
the decision of the trial judge, apportioning fault 70% against the defendant,
and 30% against the plaintiff, for a collision involving the defendant’s
vehicle and the plaintiff pedestrian crossing the road in front of her outside
an unmarked crosswalk. The pedestrian was crossing at an unmarked crosswalk in
a well-lit intersection when he left the crosswalk to veer diagonally across
the road to get to a bus stop. There was no evidence that the defendant tried
to stop prior to the collision. The judge considered the plaintiff liable for
failing to remain in the crosswalk, where he was more visible to traffic, and
for not checking to make sure crossing outside the crosswalk was safe, but found
the defendant liable for not maintaining a careful lookout and reducing her
speed in an area where she should have known pedestrians were likely to be
crossing.

[23]        
In Claydon v. Insurance Corporation of B.C., 2009 BCSC 1077, a
pedestrian was walking across 152nd Street in Surrey, B.C. when she was struck
and knocked to the ground by a vehicle driven by an unknown person. The
plaintiff contended that the unknown driver was negligent in driving too
quickly without regard for the safety of pedestrians. Madam Justice Baker found
that where a pedestrian has established prior entry at an intersection she need
not yield the right of way to a vehicle, even when not crossing at a crosswalk.
She held that the accident was primarily the result of negligence on the part
of the unknown driver in driving at an excessive rate of speed, failing to
signal her intention to make a right turn, failing to anticipate pedestrians
crossing the street, and failing to yield to pedestrians on the street when
they were there to be seen.

[24]        
Baker J. also found that the plaintiff had failed to meet the standard
of care of a reasonably prudent pedestrian and was negligent in not crossing at
a crosswalk, cutting the corner, and crossing the street at an angle. Having
made herself less visible to right-turning vehicles by jay-walking, the
plaintiff failed to keep a careful look-out for traffic and was instead
attending to her conversation with her friend and therefore failed to see or
hear the unknown driver’s vehicle prior to impact. She found that the defendant
driver was 75% liable, the plaintiff 25%.

[25]        
In Ashe v. Werstiuk, 2004 BCCA 75, at trial Mr. Justice
Metzger found the appellant to be 75% at fault and the respondent 25% at fault
as a result of a motor vehicle accident in which the respondent was struck by a
backhoe driven by the appellant while the respondent was crossing a street in
Kelowna at mid-block. The Court of Appeal allowed the appeal, setting aside the
division of liability stated by the trial judge and replacing it with an equal
division of liability. The Court of Appeal agreed that the respondent was not
crossing in a crosswalk and chose to take a risk by crossing mid-block; she was
therefore obligated to yield the right of way to vehicles on the road but did
not do so. The Court stated that there is some duty that a pedestrian must take
reasonable care for her own safety but concluded that each party had a duty to
exercise care and that the question of degrees of fault are based upon the evidence
in each case.

[26]        
In Niitamo v. ICBC, 2003 BCSC 608 at para. 22, Madam Justice
Ballance held that a marked crosswalk is precisely the place where a motorist
could reasonably expect to encounter another user of the road, and that in
approaching a marked crosswalk in anticipation of crossing through it, a
motorist assumes a heightened duty to take extreme care and maintain a vigilant
lookout for those who might be in the crosswalk.

[27]        
Niitamo was considered by Mr. Justice Brown in Dobre v.
Langley, 2011 BCSC 1315, where, at para. 43 he stated that “[o]ne need
not adopt the statement at para. 22 of Niitamo that a driver
approaching a marked crosswalk must exercise "extreme care" to concur
with the gist of the point that heightened vigilance is expected of a driver
approaching a marked crosswalk, especially one that is so clearly marked by
road painting, overhead signs and flashing lights, once activated.”

[28]        
In Salaam v. Abramovic, 2010 BCCA 212, the trial judge dismissed
a claim by Mr. Salaam arising from a motor vehicle collision. Mr. Justice
Groberman, for the Court of Appeal, overturned the dismissal, finding that the
defendant Abramovic had a duty to take care when he approached Salaam’s car in
the intersection, having had ample warning that she was not following the rules
of the road. He concluded that a reasonable driver would not have insisted on
the right of way, and certainly would not have driven aggressively through the
intersection, aiming to pass within inches of Salaam’s moving vehicle.

[29]        
At paras. 25 and 26 of his reasons, Groberman J.A. commented that:

[25]      A driver like the defendant, who is in a dominant
position, will not typically be found to be liable for an accident. Drivers are
generally entitled to assume that others will obey the rules of the road.
Further, though defensive driving and courteous operation of motor vehicles are
to be encouraged, they do not necessarily represent the standard of care for
the purposes of a negligence action. A driver will not be held to have breached
the standard of care simply because he or she failed to take extraordinary
steps to avoid an accident or to show exceptional proficiency in the operation
of a motor vehicle.

[26]      The oft-quoted passages
from the concurring judgment of Cartwright and Locke JJ. in Walker v.
Brownlee, [1952] 2 D.L.R. 450 at 460-61 (S.C.C.), succinctly set out the
duties of a driver in the dominant position:

The duty of a driver having the statutory right-of-way has
been discussed in many cases. In my opinion it is stated briefly and accurately
in the following passage in the judgment of Aylesworth J.A., concurred in by
Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223:
"Authority is not required in support of the principle that a driver
entering an intersection, even although he has the right of way, is bound to
act so as to avoid a collision if reasonable care on his part will prevent it.
To put it another way: he ought not to exercise his right of way if the
circumstances are such that the result of his so doing will be a collision
which he reasonably should have foreseen and avoided."

While the judgment of the Court of Appeal in that case was
set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in
the judgments delivered in this Court to throw any doubt on the accuracy of the
statement quoted.

In applying this principle it is necessary to bear in mind
the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7 C.R.C.
408 at p. 417, [1908] A.C. 260 at p. 269: "Traffic in the
streets would be impossible if the driver of each vehicle did not proceed more
or less upon the assumption that the drivers of all the other vehicles will do
what it is their duty to do, namely, observe the rules regulating the traffic
of the streets."

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that when A, the driver in
the servient position, proceeds through an intersection in complete disregard
of his statutory duty to yield the right-of-way and a collision results, if he
seeks to cast any portion of the blame upon B, the driver having the
right-of-way, A must establish that after B became aware, or by the exercise of
reasonable care should have become aware, of A’s disregard of the law B had in
fact a sufficient opportunity to avoid the accident of which a reasonably
careful and skilful driver would have availed himself; and I do not think that
in such circumstances any doubts should be resolved in favour of A, whose
unlawful conduct was fons et origo mali.

 c)       The Evidence of the Parties

[30]        
The plaintiff gave evidence that on the evening of the collision he had
been spending time with two friends. He said that he had consumed a single beer
and smoked one marihuana joint, but that by the time he got off the Skytrain at
the Lougheed Mall at 11:00 pm (he said that time was stamped on his Skytrain ticket),
he was no longer feeling the effects of either the beer or the marihuana.

[31]        
The plaintiff gave evidence that he had intended to take a bus from the
bus loop near the Lougheed Skytrain Station, but that as he missed his bus, he
must have been going to the Tim Horton’s restaurant at the Lougheed Mall when
he came into collision with the defendant’s motor vehicle.

[32]        
The plaintiff has suffered a memory loss as a result of the injuries
that he sustained in the collision. His last real memory before the collision
is of getting off the Skytrain at the Lougheed station, and his next
recollection is of being in hospital. Although he described what might be termed
an out-of-body experience during a dream that permitted him to give evidence of
aspects of the accident, I do not accept that his evidence based upon this
experience is either admissible or reliable and I reject it.

[33]        
The defendant gave evidence that she travelled back to Burnaby along the
Trans-Canada Highway, and took the Gaglardi Road exit from the highway. She
followed that exit to the Lougheed Highway, and then travelled along the Lougheed
Highway until she reached a traffic light at the intersection of the Lougheed
Highway and Austin Avenue. She stopped at that intersection as the light for
traffic travelling in her direction was red.

[34]        
The defendant gave evidence that she turned left from the Lougheed
Highway onto Austin Avenue, and then headed east in the left hand through lane
of Austin Avenue toward the next intersection at Austin Avenue and Gatineau
Place. Her vehicle had an automatic transmission. She gave evidence that she
was accelerating up the inclined street to reach the speed limit of 50 kmh, but
that she had not quite reached that speed before the collision.

[35]        
The defendant said that she had a green light for her direction of
travel from the time that she turned onto Austin Avenue from the Lougheed
Highway, and that the light never changed to yellow, let alone red, before the
collision with the plaintiff.

[36]        
The defendant gave evidence that the collision between the plaintiff and
her motor vehicle occurred around 11:00 pm. She said she was looking ahead of
her when she entered the intersection. She did not see the plaintiff nor apply
her brakes before the collision. Her first appreciation of the collision was
when her windshield exploded. Thereafter she applied her brakes, braking
steadily and hard, and on exiting her vehicle saw the plaintiff lying on the
road.

d)       The Evidence of Other Witnesses

[37]        
The plaintiff called two independent witnesses: Mr. Huxley and Mr. Snow,
who both testified that they were at the Lougheed Mall on the evening of the
collision. Mr. Huxley’s evidence was that earlier in the evening, he had
been at a friend’s house playing video games and smoking marihuana, but that at
around 10:00 pm he left the friend’s house and walked to the Tim Horton’s
restaurant at the Lougheed Mall. On his way to the restaurant he encountered Mr. Snow
and another friend, and the three men walked to the Tim Horton’s, purchased
coffee, and then walked along the sidewalk adjacent to the west side of the mall
to the southwest corner of the mall where there are benches. The three men
stopped at the benches to drink coffee and smoke cigarettes.

[38]        
One can see the overhead traffic control lights for the intersection of
Austin Avenue and Gatineau Place, but not the roadway or the crosswalks from
that corner.

[39]        
Mr. Huxley’s evidence was that at around 11:00 pm, he was standing
near the benches with his back to the mall, with the Skytrain station to his
left when he heard a screeching sound that he recognized to be tires squealing.
He said that almost immediately he looked up and to his left towards the
intersection of Austin Avenue and Gatineau Place and noted that the traffic
light for travellers on Gatineau Place was green.

[40]        
Mr. Huxley also gave evidence that he and Mr. Snow went to
view the scene of the collision and that Mr. Snow suggested that it was
the plaintiff, who Mr. Huxley knew to see, lying on the roadway. Although
the police attended the scene before Mr. Huxley left, he did not identify
himself to them or to any of the emergency personnel who also attended at the
scene.

[41]        
Mr. Snow gave evidence that he had been at his own home, playing
video games during the evening of July 27, 2009, but left his home to get
coffee at the Tim Horton’s restaurant at the Lougheed Mall at about 9:30 pm. He
arrived at the restaurant at about 10:00 pm, and encountered Mr. Huxley
and another friend outside the restaurant. He said that the three of them
walked to the same benches described by Mr. Huxley, where they remained
for about an hour.

[42]        
Mr. Snow’s evidence was that he sat on the top of the back of one
of the benches, leaning against a concrete wall, with his feet on the seat of
the bench, facing Mr. Huxley. He said he heard a thump followed by a
screech coming from the direction of the intersection of Austin Avenue and
Gatineau Place, and looked up immediately, noting that the light for southbound
traffic leaving the Mall parking lot onto Austin Avenue at Gatineau Place was
green, and that the light for traffic travelling on Austin Avenue was partially
visible, and displayed a red glow.

[43]        
Mr. Snow confirmed the evidence of Mr. Huxley that they walked
to the accident scene, and on seeing the male lying on the roadway, debated
whether or not it was the plaintiff whom he knew, and felt that he recognized.

[44]        
Mr. De La Cour was called as a witness by the defendant. His
evidence was that as the defendant’s vehicle proceeded along Austin Avenue from
the Lougheed Highway, the traffic light for eastbound traffic at the
intersection of Austin Avenue and Gatineau Place remained green. He said that
he saw no pedestrians trying to cross Austin Avenue at that intersection and that
the first time that he was aware of any collision was when the windshield of
the defendant’s vehicle exploded.

[45]        
Mr. De La Cour was cross-examined about the various conversations
he had engaged in with the defendant, including conversations during the course
of the trial. His evidence differed slightly from hers as to what they shared
about the proceedings at trial. I am not persuaded from his cross-examination
that Mr. De La Cour was other than credible, despite the differences
between his evidence and that of the defendant as to what they had discussed
during the trial.

 e)       The Plaintiff’s Conviction for Disobeying
a “Don’t Walk” Signal

[46]        
The defendant alleges that the plaintiff was charged with and convicted
in Provincial Court of disobeying a “don’t walk” light on January 25, 2012
after a trial. There was a trial of the violation charge at which witnesses
were called, including the plaintiff. The Certificate of Conviction that was
filed as an exhibit before me describes the plaintiff’s offence as “Disobey
don’t walk sign or walk against wait light” in violation of s. 132(3) of
the Motor Vehicle Act on July 27, 2009. The plaintiff received a
suspended sentence for this violation in traffic court by Judicial Justice Lim.
The plaintiff did not appeal the decision of Judicial Justice Lim.

[47]        
The defendant relies upon the decision of the Supreme Court of Canada in
Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, for her assertion
that a previous conviction in a court of competent jurisdiction is, absent
special circumstances, conclusive proof of all of the essential elements of
that offence in a subsequent civil proceeding.

[48]        
In that case, a recreation instructor for the City was charged with
sexually assaulting a boy under his supervision. He pleaded not guilty. At
trial before a judge alone, he testified and was cross-examined. The trial
judge found that the complainant was credible and that the instructor was not. The
instructor was convicted, and his conviction was affirmed on appeal.

[49]        
The City fired the instructor who grieved the dismissal. At the
arbitration hearing, the City submitted the complainant’s testimony from the
criminal trial and the notes of his supervisor, who had spoken to the
complainant at the time. The complainant was not called to testify. The
instructor testified, claiming that he had never sexually assaulted the boy.
The arbitrator ruled that the criminal conviction was admissible evidence, but
that it was not conclusive as to whether the instructor had sexually assaulted
the boy. No fresh evidence was introduced. The arbitrator held that the
presumption raised by the criminal conviction had been rebutted, and that the
instructor had been dismissed without just cause. The Divisional Court quashed
the arbitrator’s ruling. The Court of Appeal upheld that decision.

[50]        
At paras. 52 – 53 Madam Justice Arbour, writing for the majority
and dismissing the appeal, (LeBel and Deschamps JJ. concurring in the result)
stated:

52        … from the system’s point of view, relitigation
carries serious detrimental effects and should be avoided unless the
circumstances dictate that relitigation is in fact necessary to enhance the
credibility and the effectiveness of the adjudicative process as a whole. There
may be instances where relitigation will enhance, rather than impeach, the
integrity of the judicial system, for example: (1) when the first proceeding is
tainted by fraud or dishonesty; (2) when fresh, new evidence, previously
unavailable, conclusively impeaches the original results; or (3) when fairness
dictates that the original result should not be binding in the new context.
This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

53        The discretionary factors that apply to prevent the
doctrine of issue estoppel from operating in an unjust or unfair way are
equally available to prevent the doctrine of abuse of process from achieving a
similar undesirable result. There are many circumstances in which the bar
against relitigation, either through the doctrine of res judicata or
that of abuse of process, would create unfairness. If, for instance, the stakes
in the original proceeding were too minor to generate a full and robust
response, while the subsequent stakes were considerable, fairness would dictate
that the administration of justice would be better served by permitting the
second proceeding to go forward than by insisting that finality should prevail.
An inadequate incentive to defend, the discovery of new evidence in appropriate
circumstances, or a tainted original process may all overcome the interest in
maintaining the finality of the original decision (Danyluk, supra, at para. 51;
Franco, supra, at para. 55).

[51]        
There is no suggestion that the proceedings before Judicial Justice Lim
were tainted by fraud or dishonesty.

[52]        
The plaintiff has offered the evidence of Mr. Snow, who did not
give evidence before Judicial Justice Lim, but his evidence does not meet the
requirements for new evidence as that term has been explained in R. v.
Palmer, [1980] 1 S.C.R. 759.

[53]        
In Araujo v. Vincent, 2012 BCSC 1836, the defendant was charged
under s. 193 of the Motor Vehicle Act, which provides:

The driver of a vehicle must not
cause the vehicle to move backwards into an intersection or over a crosswalk,
and must not in any event or at any place cause a vehicle to move backwards
unless the movement can be made in safety.

[54]        
The defendant paid the ticket but gave evidence before Madam Justice
Griffin that he did so because of discussions with his mother, who wanted to
just pay the $90 ticket.

[55]        
At paras. 29, Griffin J. concluded that:

[29]      This case is one of
those circumstances in which fairness dictates that evidence to rebut the prior
conviction ought to be admitted because the stakes in the original proceeding
were too minor to generate a full and robust response. In this regard, I rely
on the Supreme Court of Canada decision in Toronto (City) v. C.U.P.E., Local
79, 2003 SCC 63 at para. 53.

[56]        
I am not persuaded that fairness dictates that the original result
should not be binding in the context of the proceedings before me. In the
hearing before Judicial Justice Lim, the plaintiff was represented by counsel
who cross-examined the witnesses called for the Crown by Constable Faustino,
and who led the plaintiff’s evidence.

[57]        
I find that it would be an abuse of process to permit the plaintiff to
challenge the verdict reached by Judicial Justice Lim as to his conviction for
“Disobey don’t walk sign or walk against wait light” in violation of s. 132(3)
of the Motor Vehicle Act.

[58]        
That said, I find that the plaintiff is bound by the finding of Judicial
Justice Lim only with respect to the essential elements of the offence for
which he was convicted: that the light controlling vehicles and pedestrians
travelling in his direction displayed a don’t walk sign at some time during
which the plaintiff occupied the intersection of Austin Avenue and Gatineau
Place, and that he was a pedestrian at that time. I do not, however, consider
that the defendant is bound by the finding that the plaintiff was a pedestrian
at that time.

[59]        
If I am in error in finding that the plaintiff cannot challenge the
verdict reached by Judicial Justice Lim, I nonetheless find that the traffic light
for eastbound traffic on Austin Avenue at Gatineau Place was green from the
time that the defendant proceeded onto Austin Avenue from the Lougheed Highway
up to and including the time of the collision.

[60]        
The plaintiff contends that the evidence establishes that the defendant
must have entered the intersection of Austin Avenue and Gatineau Place on
either a red, or a stale yellow light for traffic proceeding east on Austin
Avenue. He relies on the evidence of both Mr. Huxley and Mr. Snow in
support of this contention.

[61]        
As I have set out above, the defendant and her husband both gave
evidence that the traffic control signal for eastbound traffic on Austin Avenue
prior to and at the time of the collision was green.

[62]        
The defendant’s evidence from her examination for discovery, which she
confirmed at trial, was that the collision, “would have occurred between the
centre of the intersection and the second [east] crosswalk area.”

[63]        
I am not persuaded that the timing of the events that Mr. Snow and Mr. Huxley
described is so inconsistent with the events that occurred involving the
plaintiff that their evidence should be rejected on that basis.

[64]        
I accept that both Mr. Snow and Mr. Huxley endeavoured to
provide what they accept to be an accurate account of the events as they now
recall them, but do not accept that their mutually timed and serendipitous
observations of the traffic lights for traffic proceeding southbound on
Gatineau Place can be relied upon for either their timing or their accuracy.

[65]        
It was Mr. Snow’s evidence that he was not asked about the events
surrounding the collision until he was approached some two months before trial
by Mr. Huxley. I have no doubt that Mr. Huxley, without attempting to
influence Mr. Snow’s recollection would have shared his own recollections
with Mr. Snow in the course of this conversation.

[66]        
Mr. Huxley had been smoking marihuana that evening, and while he
denied any ongoing effect from the drug at the time of the collision, I am not
prepared to accept that the effects of the drug did not have some effect on his
observations and recollections.

[67]        
Mr. Huxley gave evidence that he heard the screeching of tires
before he looked up to see the traffic control lights. Mr. Snow testified
that he heard a “thunk and a screech” before he looked up to see the traffic
control lights.

[68]        
The defendant said that she stopped her vehicle after the collision, but
that she did not hear the screech of her tires. Constable Faustino attended the
scene within a half hour of the collision and found no tire marks indicating
rapid deceleration at the scene of the collision, I find that there was no
screeching or squealing of brakes before the collision. This finding removes most
of the basis for these men to have looked towards the traffic control device
for south bound Gatineau Place traffic. I reject as unbelievable the evidence
that these two men first looked to the traffic lights after hearing an impact.

[69]        
I prefer the evidence of the defendant and her husband to that of Mr. Snow
and Mr. Huxley. I found the defendant to be a careful and credible
witness. I do not consider that the cross-examination of her husband cast any
doubt upon his evidence on this critical issue.

[70]        
I find that the defendant was proceeding along Austin Avenue on a green
light at the time of the collision between her vehicle and the plaintiff, and
had her vehicle under proper care and control, paying proper attention to her
driving. I find as well that she had the statutory right of way.

  f)        The
Location of the Collision

[71]        
It is clear from the RCMP photographs taken the night of the collision
that the intersection was well lit, and the parties and the witnesses who gave
evidence before me do not suggest otherwise.

[72]        
The RCMP photographs show a broken long board in the eastern north/south
crosswalk at the eastern side of the intersection and a brightly coloured
blanket, a single running shoe, and a set of headphones in the left through
lane of Austin Avenue to the east of that intersection.

[73]        
The RCMP photographs also show the resting place of the defendant’s
motor vehicle to the east of the intersection, in the left through lane.

[74]        
The RCMP photographs also depict the damage to the defendant’s vehicle.
The front windshield is smashed in front of the driver’s seat, and there are
dents to the driver’s side of the vehicle immediately behind the front wheel
well.

[75]        
There was no evidence as to how the plaintiff had attempted to cross
Austin Avenue at Gatineau Place when he came into collision with the
defendant’s motor vehicle. It was his evidence that he planned to go to the Tim
Horton’s restaurant in the Lougheed Mall when he missed the bus at the Skytrain
station. That would have obliged him to cross Austin Avenue from south to
north.

[76]        
But the damage to the defendant’s motor vehicle was to the front and the
driver’s side of the vehicle. Counsel for the plaintiff conceded that it was
probable that the contact between the plaintiff and the defendant’s vehicle
occurred at the driver’s door. If so, the plaintiff must have been crossing the
intersection from north to south.

[77]        
The plaintiff contends that he must have been within the crosswalk when
the collision occurred. The onus of proof for this contention rests on the
plaintiff, and I am unable to reach such a conclusion. As I have set out above,
the photographs of the scene show the plaintiff’s long board in the north/south
crosswalk at the eastern side of the intersection and a brightly coloured
blanket, a single running shoe, and a set of headphones in the left through
lane of Austin Avenue to the east of that intersection.

[78]        
I find that the collision between the plaintiff and the defendant’s
vehicle occurred in the left hand eastbound through lane of Austin Avenue at or
near the eastern north/south crosswalk across Austin Avenue, when the plaintiff
contacted the driver’s side of the defendant’s vehicle.

  g)       The Defendant’s Alleged Negligence

[79]        
Unlike many of the authorities relied upon by the plaintiff, there is no
evidence here of how the plaintiff got to the left hand eastbound through lane
of Austin Avenue, nor any evidence that the defendant should or could have seen
him prior to the impact.

[80]        
I accept the evidence of the defendant that she ingested no alcohol on
the evening of July 27, 2009, and was not fatigued as she operated her vehicle
that evening. I also accept her evidence that she did not use the prescription
medication that she had been prescribed for post-operative pain on the evening
of the collision, and that she was not experiencing pain in her leg while
driving that evening.

[81]        
I reject the allegations that the brakes or any mechanical function of
the vehicle that the defendant was operating were defective, as there was no
evidence to support those allegations.

[82]        
I find that the defendant was operating her vehicle below the posted
rate of speed at the time of the collision, and that her speed at that time was
a reasonable one given the time of day, the lighting in the area, and the
traffic and pedestrians that she might reasonably expect to encounter as she
travelled east on Austin Avenue.

[83]        
I find that the defendant was operating her vehicle with the requisite
care and attention required of her at the time of the collision.

[84]        
In Pinsent v. Brown, 2013 BCSC 794, Madam Justice Ross commented
at para. 34 that:

The mere fact that the driver did
not see the pedestrian before striking him, is not in itself, sufficient to
establish that the driver kept an inadequate lookout: Plett v. ICBC
(1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle
so that he will be able to avoid striking a pedestrian who is crossing his path
in a reasonable manner: Funk v. Carter, 2004 BCSC 866.

[85]        
Section 181(a) of the Motor Vehicle Act provides that
notwithstanding ss. 178, 179, and 180, a driver of a vehicle must, “exercise
due care to avoid colliding with a pedestrian who is on the highway”.

[86]        
The question thus arises, was the plaintiff on Austin Avenue in time for
the defendant, if she was maintaining a proper lookout, to see him and had the
time, distance, and opportunity to reasonably avoid the collision.

[87]        
The defendant suggested that the plaintiff was riding his long board
across the intersection when he collided with her vehicle, at a speed which
prevented her from seeing him before the collision. In my view there is
insufficient basis upon which I could make such a finding. Such a conclusion
would be sheer speculation, in which I am not prepared to engage.

[88]        
The plaintiff contends that as the defendant was familiar with the area
where the collision occurred, her common law duty of care was to exercise
extreme care and maintain a vigilant lookout for pedestrians in the marked
crosswalks that she was crossing.

[89]        
In my opinion, this submission overstates the duty on drivers traveling
along a major thoroughfare at a speed less than the posted speed limit. The
comments regarding the appropriate assumptions of drivers in regard to other
drivers in Hmaied and Salaam apply equally to the assumptions
that drivers of vehicles are entitled to make with respect to the conduct of
pedestrians, subject to the provisions of the Motor Vehicle Act.

[90]        
As Mr. Justice Tysoe explained in Haase v. Pedro (1988), 21
B.C.L.R. (2d) 273 (C.A.) No. at paras. 279:

The onus was on the respondent to establish on a balance of
probabilities that the appellant could, by the exercise of reasonable care,
have avoided a collision with the respondent’s car. In my view this onus can be
discharged only by reliable evidence of time, distance, speed, the point at
which the respondent’s car became out of control and visible to the appellant
and the place on the highway where the collision occurred. There is no room for
guesswork or conjecture on these matters. Inference yes, but based on proven
facts.

I approach the evidence with the following considerations in
mind. When a person who has negligently created such a danger as the respondent
created endeavours to saddle a driver in the appellant’s position with a
portion of blame by means or partly by means of mathematical calculations of
distances and times, as is the case here, the premises on which the
calculations are based must be established by much more than vague and
ill-defined testimony. The evidence must be specific and accurate within very
narrow limits and not broad ones. And, as Cartwright J. (as he then was)
intimated in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 461 (S.C.C.)
[Ont.], any doubts should not be resolved in favour of the respondent, whose
unlawful conduct was fons et origo mali. In this case much of the testimony is
vague and ill-defined. Insofar as the appellant and respondent themselves are
concerned, this is understandable, for the salient events followed very quickly
one upon the other and the parties must have been under considerable stress and
in a state of excitement. Indeed, the impression of both of them was that the
expired time was no more than one second. It is difficult for a jury to
separate the wheat from the chaff in an emotionally charged trial lasting four
days.

[91]        
In my opinion, the contention that the defendant, who I find was travelling
below the posted speed limit for eastbound traffic on Austin Avenue, ought to
have slowed for each crosswalk along Austin Avenue in case a pedestrian was
disobeying the traffic control signals, is impractical and unnecessary.

[92]        
The plaintiff bears the onus of proving negligence on the part of the
defendant. As Ross J. commented in Pinsent, the mere fact that
the driver does not see the pedestrian before striking him, is not in itself,
sufficient to establish that the driver kept an inadequate lookout.

[93]        
I find that the plaintiff could not have been keeping an adequate
lookout for his own safety. He has offered no explanation as to why he failed
to avoid contacting the driver’s side of the defendant’s vehicle, and as I have
rejected the evidence of Mr. Snow and Mr. Huxley, the plaintiff has
been unable to offer any explanation as to how or where he entered the
intersection, or as to how the defendant could have been expected to observe or
anticipate him, so as to take any steps to avoid him coming into contact with
her vehicle.

[94]        
Unlike Nelson and Anderson where the Courts found that had
the defendants maintained a proper lookout, they should have seen the
pedestrians and could reasonably have avoided the collisions, I am not
persuaded that the defendant in this case failed to maintain a proper lookout.

[95]        
Nor am I prepared to make the findings that were made by Baker J. in Claydon,
that the defendant in this case was driving at an excessive rate of speed, or
failed to anticipate pedestrians crossing the street, or failed to yield to a pedestrian
who was there to be seen.

[96]        
The decision of Ballance J. in Niitamo must be read in the
context in which it was made. That context was that that the evidence before
her was that the plaintiff cyclist before her was riding at a "regular
pace", and was in a well-lit crosswalk and ought to have been seen by a
cautious motorist ahead of time.

[97]        
I find that the defendant drove her motor vehicle on July 27, 2009 with
reasonable care and prudence in the circumstances facing her, and conclude that
the plaintiff has failed to make out any negligence on the part of the
defendant. I therefore dismiss his action.

“The
Honourable Chief Justice Hinkson”