IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150210

Docket: 12-3074

Registry:
Victoria

Between:

Michael Paul
Vandendorpel

Plaintiff

And:

Beverly Camillis
Evoy and Sheila Louise Evoy

Defendants

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment

Introduction

[1]            
On the morning of Saturday, 9 October 2010, the plaintiff Michael
Vandendorpel was walking to his place of work in Colwood, B.C. While he was in a
pedestrian controlled crosswalk, Mr. Vandendorpel was struck by a vehicle driven
by the defendant, Mr. Beverly Evoy.

[2]            
In this action for damages, Mr. Vandendorpel says the accident and
his resulting injuries were caused by Mr. Evoy’s negligent manner of
driving. Mr. Evoy denies any negligence on his part and asserts that Mr. Vandendorpel
is solely responsible for the accident.

Issues

[3]            
The first issue for me to address is liability. If Mr. Evoy bears
any responsibility for the accident, then I will need to consider the nature
and quantum of damages Mr. Vandendorpel suffered as a result of the
accident. If I conclude Mr. Evoy is not liable for the accident, then there
is no need for me to address the question of Mr. Vandendorpel’s damages: Russell
v. Wang, 2000 BCSC 534.

Summary of the Evidence

[4]            
The principal evidence relating to what occurred at and around the time
of the accident is the testimony of Mr. Vandendorpel and Mr. Evoy. Supplementing
that evidence is the testimony of Constable Brian Lucas, an RCMP officer who
attended at the accident scene shortly after the collision, and the testimony
of Ms. Helen Lockhart, a City of Colwood employee who explained the
sequencing of the relevant traffic control signals and pedestrian control signals.
There is also the expert opinion evidence of Mr. Gerald Sdoutz of Forensic
Dynamics Inc. and Mr. Kurt Ising of Mea Forensic, as
well as documentary evidence, including an Agreed Statement of Facts.

The Accident
Scene

[5]            
The accident occurred at the “T” intersection created by the termination
of Mount View Avenue at Sooke Road (the “Intersection”). Although Sooke Road at
this location is oriented generally southwest-northeast, the parties and
witnesses at trial referred to it as being oriented north-south and in order to
maintain consistency, I will adopt the same approach.

[6]            
Sooke Road has five lanes of travel at the Intersection:

·      
Two northbound lanes (“Lane One” being the curb lane and “Lane
Two” being the center lane);

·      
A third northbound lane for traffic turning west onto Mount View
Avenue (“Lane Three”); and

·      
Two southbound lanes (“Lane Four” being the centre lane and “Lane
Five” being the curb lane).

[7]            
There is a double yellow line that divides the southbound and northbound
traffic on Sooke Road (the “Centre Line”). North of the Intersection, the
Centre Line separates Lane Two from Lane Four. Immediately south of the
Intersection, the Centre Line divides Lane Three and Lane Four.

[8]            
The Intersection has three marked crosswalks: one that traverses Mount
View Avenue and two that traverse Sooke Road (one to the north of the
Intersection and one to the south of the Intersection). Only the two crosswalks
that traverse Sooke Road have pedestrian traffic control signals.

[9]            
The distance from the eastern sidewalk of Sooke Road to the Centre Line
is approximately 10.9 metres. The width of Lane Four is approximately 3.1 metres
and the width of Lane Five is approximately 4 metres, meaning the distance
from the Centre Line to the western sidewalk of Sooke Road is approximately 7.1 metres.
The total width of Sooke Road is approximately 18 metres.

[10]        
The distance between the northern stop line for southbound traffic to
the southern crosswalk where Mr. Vandendorpel was struck is approximately 25.4 metres.

  The Traffic Control
Signals and Pedestrian Traffic Control Signals

[11]        
The traffic control signals at the Intersection, as well as the
pedestrian traffic control signals for the southern crosswalk, were operational
at the time of the accident. The traffic control signals for northbound and
southbound traffic on Sooke Road approaching the Intersection normally flash
green. The pedestrian traffic control signals normally display the outline of a
raised hand prohibiting pedestrians from crossing Sooke Road.

[12]        
According to the documentary evidence at trial and the evidence of
Ms. Lockhart that was not inadmissible hearsay, between 6:00 a.m. and
9:00 a.m. seven days per week the signals at the Intersection operate on a
90-second cycle. That is, only once every 90 seconds can the pedestrian control
device be activated to change the traffic control signals and pedestrian traffic
control signals and allow pedestrians to cross Sooke Road. If the traffic
control signals on Sooke Road have been flashing green uninterrupted for at
least 90 seconds, then upon depressing the pedestrian control device, the
following occurs:

1.     The
flashing green traffic control signals change to a solid green light for
5 seconds;

2.     The solid
green light then changes to a solid yellow light for 3.5 seconds;

3.     The yellow
light then changes to a solid red light, which remains lit for 29 seconds;

4.     Two
seconds after the yellow light changes to a solid red, the pedestrian traffic
control signal changes from an outline of a raised hand to an outline of a
person walking and remains that way for 7 seconds;

5.     The pedestrian
traffic control signal then changes back to the outline of a raised hand, which
flashes for 17 seconds. The raised hand then ceases flashing;

6.     Three
seconds after the pedestrian traffic control signal ceases flashing and returns
to the solid outline of a raised hand, the traffic control signals return to flashing
green for vehicular traffic on Sooke Road.

[13]        
Someone who depresses the pedestrian control device has to wait at least
10.5 seconds before the pedestrian traffic control signal changes to permit
them to cross Sooke Road.

  The Plaintiff

[14]        
Mr. Vandendorpel is 31 years old. He graduated from high school in St. Catherine’s,
Ontario in 2001. In late 2001 he relocated to Victoria, B.C. In 2006, he
completed a diploma in New Media Design from the Computer Master Institute of
Technology in Victoria, B.C. In January 2014, he returned to school and began
studying computer science at Camosun College. His goal is to transfer to the
University of Victoria and eventually obtain a degree in computer science.

[15]        
Mr. Vandendorpel is six feet tall and weighs approximately 280
pounds. For many years he has consumed about ¾ of a pack of cigarettes a day. In
his examination-in-chief he described himself as “a bit of a hermit”, in that
he only has a small circle of friends. He also explained that his favourite
hobby is playing video games. Before the accident, Mr. Vandendorpel’s
physical fitness activities were quite limited. Every couple of weeks he would
go for a walk of between ½ hour and 3 hours with his girlfriend and he also occasionally
participated in geocaching, which is a type of outdoor treasure hunting using
Global Positioning System devices. On cross-examination Mr. Vandendorpel agreed
that prior to the accident he avoided running as he found it too difficult.

[16]        
After arriving in Victoria, Mr. Vandendorpel worked at various jobs,
including at a Subway restaurant, a Chevron service station and The Home Depot.
Although the Agreed Statement of Facts indicates that on 8 September 2010 Mr. Vandendorpel
began working as an Assistant Manager at the Shell service station located at
the northwest corner of the Intersection, in his testimony before me he said he
started on 10 August 2010 and was being trained as an Assistant Manager. In
any event, his hope was to become a manager of another service station in the
not too distant future. Mr. Vandendorpel was pleased with his new
employment and wished to make a good impression on his employer. This included
attempting to regularly arrive 5 or 10 minutes early for work. Mr. Vandendorpel
often walked to work and it normally took him around 30 minutes to do so.

[17]        
Mr. Vandendorpel’s work shift on 9 October 2010 began at 7:00
a.m. Running late that morning, he left his home at approximately 6:25 a.m.
Although he testified that he did not feel he was rushing to work, he agreed on
cross-examination that he had picked up his pace and was perspiring at 6:52 a.m.,
the approximate time he reached the eastern end of the Intersection’s southern pedestrian
crosswalk on Sooke Road.

[18]        
Mr. Vandendorpel was completely dressed in dark clothing, including
a dark hooded pullover that was zipped up. None of his clothing had any
reflective qualities. He was also wearing headphones and listening to music. Given
the hour of the day and the time of the year, it was still dark outside. The roadways
were also wet as it had rained overnight.

[19]        
In his direct examination, Mr. Vandendorpel indicated that he came
to a complete stop at the eastern end of the crosswalk. He then depressed the
pedestrian control device and “waited a few seconds” as he scanned for traffic
on his left and right. Seeing no vehicles he decided to proceed into the
crosswalk and across Sooke Road. On cross-examination, Mr. Vandendorpel
acknowledged that he could not accurately estimate how long he waited after
activating the pedestrian control device before he began his walk across Sooke
Road, although he maintained it was “several seconds”. He also acknowledged
that in a prior statement, he had said he waited from between 5 to 10 seconds
and perhaps 15 seconds.

[20]        
Mr. Vandendorpel testified that prior to entering the crosswalk he saw
no vehicles approaching from any direction. He confirmed on cross-examination that
standing at the eastern border of the crosswalk, he could see approximately 100 metres
north up Sooke Road.

[21]        
Mr. Vandendorpel acknowledged that against the raised hand on the
pedestrian traffic control signal facing him, he began walking across Sooke
Road towards its western sidewalk. He further testified that after entering Lane
Three he noticed that the traffic control signal to his right had changed to yellow
for northbound traffic. Based on this evidence along with the evidence about
the sequencing of the Intersection’s traffic control signals, Mr. Vandendorpel
must have depressed the pedestrian control device between 5 and 8.5 seconds
prior to noticing the yellow traffic light. Moreover, at the point when he
observed the traffic control signal change, the pedestrian traffic control signal
in front of him must still have displayed the outline of a raised hand.

[22]        
According to Mr. Vandendorpel, when he reached the boundary between
Lanes Three and Four, near the Centre Line, he became aware of an approaching
southbound vehicle in Lane Five. As he described it, he then put his head down
and sprinted towards the western sidewalk of Sooke Road. Before reaching the
sidewalk Mr. Vandendorpel’s right foot was struck by the front passenger side
of Mr. Evoy’s vehicle, causing him to spin and fall onto the roadway. Mr. Vandendorpel
was not certain where in the crosswalk he was when he was struck. All he could
say was that it was after he had entered one of the southbound lanes, most
likely Lane Five. Relying upon Mr. Vandendorpel’s evidence and the
accepted measurements of the roadway, it would appear that he had travelled an
additional 3 to 7 metres across the road after he noticed the vehicle
approaching towards him.

  The Defendant

[23]        
Mr. Evoy has worked as a paramedic with the BC Ambulance Service
for approximately 25 years. At around 6:45 a.m. on 9 October 2010, he
was travelling southbound on Sooke Road in a 2003 Chevrolet Malibu that he and
his wife (the second named defendant) owned. He had just finished a 12 hour
work shift.

[24]        
On direct examination, Mr. Evoy testified that he was driving in Lane
Four at a speed of between 50 to 55 kilometres per hour. The headlights of his
vehicle were operational and turned on. On cross-examination, he remained firm
and convincing that his speed was no more than 55 kilometers an hour. He was
also steadfast in his evidence that he never changed lanes and was in Lane Four
at all material times.

[25]        
Mr. Evoy testified that as he approached the Intersection he saw the
traffic control signal change from a flashing green light to a solid green
light. This prompted him to think that someone was on one of the sidewalks and had
depressed the pedestrian control device. Mr. Evoy further explained that
his vehicle entered the Intersection as the traffic control signal for
southbound vehicles turned to yellow. As he proceeded through the Intersection,
still in Lane Four, he scanned the horizon from left to right. He only saw Mr. Vandendorpel
to the right side of his vehicle a fraction of a second before the accident. According
to Mr. Evoy he applied his vehicle’s brakes and attempted to avoid
striking Mr. Vandendorpel, but it was too late to avoid a collision. He
also testified that after the collision Mr. Vandendorpel was still on the
roadway and had not yet made it to the sidewalk.

  Weather / Road
Conditions

[26]        
Mr. Vandendorpel and Mr. Evoy agree that the roads were wet at
the time of the collision.

[27]        
Cst. Lucas testified that at 6:54 a.m. he was dispatched to an
accident at the Intersection. He arrived at the scene shortly thereafter. According
to Cst. Lucas, the weather conditions were cloudy and the ground was very
wet. He also noticed that quite a bit of artificial glare was created by the
headlights of his police vehicle reflecting off of the wet pavement.

  Lighting

[28]        
Given the hour of the day when the collision occurred, there was no
natural lighting at the Intersection. Mr. Vandendorpel and Mr. Evoy
agree that it was dark outside.

[29]        
According to Mr. Vandendorpel, the Intersection was reasonably well
lit with an operating street light at the east end of the northern crosswalk as
well as the one at the west end of the southern crosswalk. He also testified
that there was light emanating from the service station on the northwest corner
of the Intersection.

[30]        
Mr. Evoy testified that the Intersection was not well lit and that
there was no artificial light to the right or west side of the Intersection.
Although he agreed that there was some light coming from the service station,
he claimed it did not assist in illuminating the Intersection or the southern crosswalk
that Mr. Vandendorpel used.

[31]        
The digital and video images of the Intersection that were entered into
evidence support Mr. Evoy’s description of the lighting at the
Intersection and I am not persuaded that the street light Mr. Vandendorpel
says was in place for the southern crosswalk was operating on 9 October
2010. I also accept Cst. Lucas’ evidence that while there was some light
emanating from the service station on the northwest corner of the Intersection,
the Intersection in general was “very poorly lit”, with very little artificial
light.

  Expert Opinion
Evidence

  Forensic
Dynamics Expert Report

[32]        
Mr. Gerald D. Sdoutz is a professional engineer with Forensic
Dynamics Inc. Mr. Sdoutz was retained by the plaintiff and testified at
trial as an expert in the area of accident reconstruction. The written report
dated 28 February 2014 that contains Mr. Sdoutz’s expert opinion was
also tendered into evidence (the “Forensic Dynamics Report”).

[33]        
In preparing his report, Mr. Sdoutz assumed that Mr. Vandendorpel
walked at a speed of approximately 1.5 metres per second and calculated
that it would have required approximately 7.3 seconds for him to have travelled
from the eastern sidewalk of Sooke Road to the Centre Line. Mr. Sdoutz
also assumed that Mr. Vandendorpel would have required an additional 1.5 to
3.4 seconds to reach the point of impact with Mr. Evoy’s vehicle,
depending upon whether that point was close to the dividing line between Lanes
Four and Five or was in Lane Five closer to the western sidewalk. Consequently,
Mr. Sdoutz concluded that Mr. Vandendorpel was in the crosswalk for between
8.8 to 10.7 seconds.

[34]        
Mr. Sdoutz also provided expert opinion evidence about what a
vehicle driver experiences when they observe a traffic control signal change
from green to yellow. Mr. Sdoutz explained that when a driver observes a
traffic signal change to yellow, he or she generally completes a “perception-response
process” involving identifying the traffic light changing to yellow,
determining the distance to the stop line, and deciding whether there is an
opportunity to stop. In Mr. Sdoutz’s opinion, when Mr. Evoy observed
the traffic light change to yellow it “would not have been an emergency response,
but a more typical traffic response” and that 2.5 seconds “would be a
conservative estimate of the time required to decide upon whether it is
appropriate to stop for the yellow light or not.” Mr. Sdoutz calculated
that Mr. Evoy’s vehicle would have travelled 38.3 metres during the
time it would take him to decide whether or not to stop. Though Mr. Sdoutz
did not provide an opinion on how much distance the vehicle would have required
to come to a stop, he did say that it would be less than 71 metres.

[35]        
Based upon the assumption that Mr. Vandendorpel waited 5 seconds
after depressing the pedestrian control device before commencing his trek
across Sooke Road, Mr. Sdoutz concluded that “the pedestrian walk sign
would have been on and the traffic signals for Sooke Road would have been ‘Red’
as the collision occurred.” He also concluded Mr. Evoy had sufficient time
to come to “a normal stop and avoid a collision”.

  Mea Forensic
Expert Report

[36]        
Mr. Kurt W. Ising, is a professional engineer and the principal of
Mea Forensic. Mr. Ising was retained by the defendants to provide expert
opinion evidence about motor vehicle accidents, including collision sequence,
pedestrian impacts, and vehicle speed analysis. Mr. Ising testified at
trial and his written report dated 18 March 2014 was tendered into
evidence (the “Mea Forensic Report”).

[37]        
Mr. Ising reviewed the Forensic Dynamics Report and was of the view
that Mr. Sdoutz’s estimate that on average it would require 2.5 seconds
for a driver to decide whether to stop was too conservative. To the advantage
of the plaintiff’s position, Mr. Ising adopted an average response time of
1.3 seconds for a driver to react to a yellow light.

[38]        
In formulating his opinion on the sequence of events that led to the
accident, Mr. Ising also took into consideration that Mr. Vandendorpel
had told Cst. Lucas at the scene of the accident that he had activated the
pedestrian control device and then without waiting for the lights to change,
began to cross the roadway. As a result of this, Mr. Ising assumed that
Mr. Vandendorpel began his walk across Sooke Road immediately after
depressing the pedestrian control device. That differs from the 5 seconds
Mr. Sdoutz assumed Mr. Vandendopel waited before crossing Sooke Road.

[39]        
According to Mr. Ising’s calculations, Mr. Evoy’s vehicle was approximately
134 metres from the southern crosswalk and 109 metres from the northern
stop line when Mr. Vandendorpel began to cross Sooke Road. Moreover, the vehicle
was 33 metres from the stop line, 5 seconds later, when the traffic
control signal changed to yellow. Using the quicker response time,
Mr. Ising concluded that Mr. Evoy’s vehicle travelled another 20 metres
before braking could commence. That left 13 metres in which to stop for
the yellow light. In Mr. Ising’s opinion, coming to a stop at the stop line was
likely unattainable in these circumstances. Mr. Ising observed that had he
used Mr. Sdoutz’s response time of 2.5 seconds, Mr. Evoy would
not have had any room or time to brake. Mr. Ising was of the view that if
Mr. Evoy saw the traffic control signal turn yellow from a distance of 62 metres
or more from the stop line then he would have been able to safely stop his
vehicle before the accident.

[40]        
In his report, Mr. Ising concluded:

1)         If Mr. Vandendorpel started walking across
Sooke Road immediately after pressing the pedestrian crossing button, then Mr. Evoy
could likely not have stopped prior to entering the intersection.

2)         The southbound traffic light was likely yellow
when Mr. Evoy entered the intersection but red on impact.

3)         The pedestrian
crossing signal likely switched to “Walk” about 1.7 seconds after impact.

Findings
of Fact

  The
Plaintiff’s Actions

[41]        
I accept that Mr. Vandendorpel came to a complete stop at the
eastern end of the crosswalk and then activated the pedestrian control device. I
am not, however, satisfied that he waited any noticeable period of time before
commencing his walk across Sooke Road. Mr. Vandendorpel does not have a
clear recollection of how long he waited. At one point he said he waited for
perhaps as long as 15 seconds. He now says it was only a few seconds. In my
view, given the circumstances he was facing at the time, including that he
wanted to get to work within a minute or so of arriving at the crosswalk, and what
he told Cst. Lucas at the accident scene, I find Mr. Vandendorpel likely
only waited a very brief moment, approximately 1.5 seconds, before he started
to cross Sooke Road.

[42]        
I also accept that Mr. Vandendorpel only noticed that the traffic signals
were yellow once he had reached Lane Three. At this point he would have travelled
approximately 10 metres. Taking into consideration many factors, including
Mr. Vandendorpel’s physical size and stature, the time of day, and that he
was anxious to get to work on time but was not rushing, I am satisfied that the
estimated walking rate of 1.5 metres per second included in the Forensic
Dynamics Report is reasonable and appropriate. Consequently, I find that Mr. Vandendorpel
had been in the crosswalk for approximately 6.6 seconds before he noticed
that the traffic control signals had turned yellow. This means that a total of
8.1 seconds elapsed between the point in time Mr. Vandendorpel pressed
the pedestrian control device and the point in time when he was in Lane Three
at or around the Centre Line.

[43]        
Although in my opinion Mr. Evoy’s vehicle would have been clearly
visible from a much further distance, I accept that Mr. Vandendorpel did
not notice it until it was approximately 30 metres away from him and that
this occurred just after Mr. Evoy observed his traffic control signal had
turned yellow. I also accept that after noticing Mr. Evoy’s vehicle proceeding
through the Intersection, Mr. Vandendorpel immediately began to run across
Sooke Road towards its western sidewalk. I find that it was approximately 2 seconds
later that the collision occurred; approximately 10 seconds after Mr. Vandendorpel
first activated the pedestrian control device.

[44]        
On the evidence before me, I am satisfied that at the time of the accident,
the pedestrian traffic control signal for the Intersection’s southern crosswalk
continued to exhibit the outline of a raised hand.

  The Defendant’s
Actions

[45]        
There is no dispute that Mr. Vandendorpel was within the crosswalk
at the time of the collision. This fact, combined with my findings that Mr. Evoy’s
vehicle was travelling at approximately 55 km/hr or 15.3 metres per second
and that Mr. Evoy did not see Mr. Vandendorpel until moments before
the collision, means that I can be satisfied, on the balance of probabilities,
of the position of Mr. Evoy’s vehicle at the material times.

[46]        
I find the following in relation to the actions of Mr. Vandendorpel
and Mr. Evoy:

a)    When Mr. Vandendorpel
activated the pedestrian control device (10 seconds prior to the accident),
Mr. Evoy’s vehicle was approximately 153 metres from the point of collision;

b)    When Mr. Vandendorpel
first stepped off the curb into the crosswalk (1.5 seconds later), Mr. Evoy
was 130 metres from the point of collision; and

c)     When Mr. Vandendorpel
first saw Mr. Evoy’s vehicle, it was approximately 30 metres from the
point of collision.

[47]        
I find the following in relation to the actions of Mr. Evoy and the
traffic control signal:

a)    When the traffic
control signal first indicated solid green, Mr. Evoy’s vehicle was 128 metres
from the stop line;

b)    When the traffic
control signal first indicated yellow, Mr. Evoy’s vehicle was 51.5 metres
from the northern stop line;

c)     When Mr. Evoy’s
vehicle entered the Intersection the traffic control signal was still yellow;
and

d)    At the time of collision,
the traffic control signal had been red for 1.5 seconds.

Discussion – Liability

[48]        
In determining who was at fault for the accident, I have considered all
of the evidence presented at trial and have, to the greatest extent possible,
reconstructed what I believe is the likely sequence of events that led up to
the collision.

  The Duty
Imposed on Users of the Road

[49]        
As users of the road both Mr. Vandendorpel and Mr. Evoy had
duties imposed on them. These duties include those articulated in the Motor
Vehicle Act, R.S.B.C. 1996, c. 318, (the “Act”) as well as those
imposed by the common law. The duties imposed by the common law include a duty
to exercise due care, to keep a proper look out, and to take precautions when
there is an apparent hazard: Hmaied v. Wilkinson, 2010 BCSC 1074, at paras. 21-23.

  The Plaintiff’s
Duty

[50]        
Mr. Vandendorpel’s duties under the Act are prescribed in
sections 125 and 132. Section 125 provides:

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.

[51]        
Section 132(3) states:

(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

[52]        
In my opinion, Mr. Vandendorpel contravened ss. 125 and 132 of
the Act when he began crossing Sooke Road despite the pedestrian control
signal indicating a raised hand. As such, I find he breached his duty to comply
with the provisions of the Act. In my opinion, this breach of his
statutory duties is also persuasive evidence that he was in breach of his
common law duty to exercise due care. Mr. Vandendorpel’s duty to exercise
due care was heightened because his violation of the provisions of the Act created
a situation that exposed him to greater danger and he should have assumed that
his unexpected position in the roadway would surprise an approaching vehicle: Hadden
v. Lynch, 2008 BCSC 295, at para. 59.

[53]        
In my respectful opinion, Mr. Vandendorpel failed to exercise the
level of care expected of him in the circumstances. I note that the timing for
the traffic control signal is obviously not arbitrary, and if Mr. Vandendorpel
had waited until the outline of a walking person was displayed on the pedestrian
control signal (a wait of at least 10.5 seconds), Mr. Evoy’s vehicle
would have cleared the Intersection before he entered the crosswalk.
Furthermore, if Mr. Vandendorpel had waited for a change in the pedestrian
control signal, then a further 10 seconds would have elapsed before he
reached the position where he was struck. At that point in time Mr. Evoy’s
vehicle would have been 150 metres past the point of collision.

[54]        
Mr. Vandendorpel also had a duty to keep a proper lookout. He says
that he did not see Mr. Evoy’s vehicle until it was approximately 30 metres
away from him and he had been in the crosswalk for more than 6 seconds. I
find that Mr. Vandendorpel had the opportunity and ought to have noticed Mr. Evoy’s
vehicle well before he did. Sooke Road proceeding south towards its
intersection with Mount View Avenue is reasonably flat and straight. Mr. Evoy’s
vehicle had its headlights on and in my view it was clearly there to be seen. Mr. Vandendorpel
wanted to get to work 5 minutes early. He only had a couple of minutes left to
do that. I find he proceeded into the crosswalk intent on getting across Sooke
Road quickly and in doing so he failed to keep a proper lookout.

[55]        
Mr. Vandendorpel was also subject to a duty to take precautions
when there was an apparent hazard. I am satisfied that Mr. Evoy’s vehicle
constituted an apparent hazard to Mr. Vandendorpel. However, once he noticed
the vehicle he did not stop or retreat but rather chose to sprint across its
path. There was no other traffic in the vicinity and Mr. Vandendorpel
could have remained where he was (in Lane Three) or retreated somewhat to
ensure Mr. Evoy’s vehicle passed through the Intersection without striking
him. In my opinion, running across the path of an oncoming vehicle, given the weather,
road and lighting conditions at the time and the clothing he was wearing, was
not only an unreasonable choice for Mr. Vandendorpel to make, it was a
reckless one. As a result, I find he failed to take appropriate precautions
once he noticed Mr. Evoy’s vehicle.

[56]        
In summary, Mr. Vandendorpel breached his obligations under the Act
as well as those imposed on him under the common law. As such, in order for Mr. Evoy
to be liable for the collision, Mr. Vandendorpel must prove on the balance
of probabilities that Mr. Evoy should have been aware of Mr. Vandendorpel’s
illegal presence on the road at a time that allowed him, through the exercise
of reasonable skill, to avoid the accident: Lau v. Calderisi (1998), 55
B.C.L.R. (3d) 368 (S.C.), at para. 19.

  The Defendant’s
Duty

[57]        
Mr. Evoy is also subject to the provisions of the Act, and
the common law duty to take care, keep a proper lookout, and take precautions
when there is an apparent hazard on the road. If he failed to meet any of the
duties, and that failure is found to be causally linked to the accident, then
he would be liable for the injuries suffered by Mr. Vandendorpel.

[58]        
I have already found that Mr. Evoy entered the Intersection after
the traffic control signal indicated a yellow light. The relevant section of
the Act in this situation is 128:

Yellow light

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

[59]        
In my view, Mr. Evoy’s vehicle was legally in the Intersection at
the time of the accident. Under s. 128 of the Act, Mr. Evoy
was required to stop “unless the stop [could not] be made in safety.” As I have
already noted, I find that Mr. Evoy was 51.5 metres from the northern
stop line when the yellow light was first exhibited. This distance is less than
the average distance referred to in the Mea Forensic Report (62 metres)
which assumed both a quicker rate of deceleration and a shorter
perception-response time than the Forensic Dynamics Report. In consideration of
the specific circumstances of this case, particularly that the roads were wet
and the lighting was poor, I conclude that Mr. Evoy could not have stopped
in safety and therefore he did not breach s. 128 of the Act when he
proceeded through the Intersection.

[60]        
The duty of a driver to take care is dependent on the particular
circumstances. Generally speaking, the duty is satisfied if a driver is in
compliance with the provisions of the Act, but the duty can be
heightened if there is a reason for them to take “particular caution.” For
example, in Simpson v. Baechler, 2009 BCCA 13, the court explained that
in some situations the duty to take care requires a driver to do more than
“simply continue along at the maximum allowable speed, foot on the accelerator,
shifting up and assuming that there was no one waiting to cross when he knew or
ought to have known that that was not a safe assumption” (para. 44).

[61]        
Counsel for Mr. Vandendorpel emphasized the fact that on
cross-examination Mr. Evoy agreed with the suggestion that when a traffic control
signal changes from a flashing green to a solid green it is a “warning” that a
pedestrian was in the area. While I accept Mr. Evoy’s evidence on this
point, I do not agree that a pedestrian controlled traffic signal turning from
flashing green to solid green, without more, constitutes a legal duty for a
driver to take the additional precautions contended by the plaintiff in this
case.

[62]        
Section 131(5) of the Act provides that when a traffic
control signal is flashing green the driver of a vehicle must ensure that they
approach an intersection at a speed that enables them to stop before reaching
the traffic control signal or a crosswalk:

When rapid intermittent flashes of green light are exhibited
at an intersection or at a place other than an intersection by a traffic
control signal,

(a) the driver of a vehicle approaching the intersection or
signal and facing the signal must cause it to approach the intersection or
signal in such a manner that he or she is able to cause the vehicle to stop
before reaching the signal or any crosswalk in the vicinity of the signal if a
stop should become necessary, and must yield the right of way to pedestrians
lawfully in a crosswalk in the vicinity of the signal or in the intersection,
and

(b) a pedestrian may proceed
across the roadway with caution and at an intersection only in a marked or
unmarked crosswalk.

[63]        
In contrast, when there is a solid green light s. 127(1) permits a
driver to proceed straight though an intersection and does not require them to
approach the intersection at a speed that enables them to stop before entering
the intersection:

127 (1) When a green light alone is exhibited at
an intersection by a traffic control signal,

(a) the driver of a vehicle facing
the green light

(i)   may cause the vehicle to
proceed straight through the intersection, or to turn left or right, subject to
a sign or signal prohibiting a left or right turn, or both, or designating the
turning movement permitted,

(ii)   must yield the right of
way to pedestrians lawfully in the intersection or in an adjacent crosswalk at
the time the green light is exhibited, and

(iii)   must yield the right
of way to vehicles lawfully in the intersection at the time the green light
became exhibited, and

(b) a pedestrian facing the green light may proceed across
the roadway in a marked or unmarked crosswalk, subject to special pedestrian
traffic control signals directing him or her otherwise, and has the right of
way for that purpose over all vehicles.

[64]        
The change in the traffic control signal may well mean that a pedestrian
is in the area; however that area is the sidewalk or curb where the pedestrian control
device is located and not on the road itself. A driver who sees the traffic control
signal change from flashing green to solid green is entitled to believe that
the pedestrian will obey the rules of the road and will wait for the signals to
change to allow for a safe crossing of the roadway. In my view it is reasonable
for a driver to assume that if a pedestrian is responsible enough to press the
button on a traffic control device that same person will be responsible enough to
not begin crossing the road until the pedestrian traffic control signal
indicates that they may do so. In reaching this conclusion I have considered the
opinions expressed by our Court of Appeal in Coulter (Guardian ad litem) v.
Leduc, 2005 BCCA 199, where Justices Braidwood and Mackenzie observed that
in order for there to be a requirement for particular caution, the possibility
of danger emerging must be reasonably apparent to the driver. The court
explained at para. 37 that the intersection in issue in that case did not
require particular caution even though it was “partiality lit, with snow piled
on its sides, and frequented by large trucks.” According to the court, these
facts alone did not make the intersection an exceptional occurrence on the
Trans-Canada Highway in the winter. Moreover, the court found that the prospect
of another party disregarding the law did not create a duty of particular
caution (para. 37). The court noted that a driver is entitled to proceed
with reasonable caution assuming that other users of the road will obey the law
and yield the right-of-way.

[65]        
In my opinion, no special duty is imposed on Mr. Evoy unless he
perceived the danger and had the opportunity to avoid the accident. In the
circumstances of the present case, I find the possibility of someone being
unlawfully in the middle of the crosswalk was not a reasonably apparent danger
to Mr. Evoy.

[66]        
Mr. Evoy acknowledged in his evidence that he did not see Mr. Vandendorpel
until his vehicle had entered the Intersection. Counsel for Mr. Vandendorpel
submits this is persuasive evidence that Mr. Evoy failed to keep a proper
lookout. However, the simple fact that a driver did not see a pedestrian is not
dispositive regarding whether the driver had kept a proper lookout: Christensen
v. Gerber, 2007 BCSC 1397, at para. 55. Mr. Vandendorpel was
wearing dark clothing on the morning in question and this would have made it
more difficult to see him. Exacerbating the situation was the sheen from the wet
roadway, the darkness of the hour, and the lack of artificial lighting. Taking
into consideration the fact that Mr. Evoy believed someone had activated
the pedestrian control device, it seems reasonable to me that he would look to
both curbs to see if a pedestrian was waiting to cross the Intersection and not
expect to see anyone crossing the Intersection in front of him against the pedestrian
traffic control signal.

[67]        
I accept Mr. Evoy’s evidence that he was driving carefully on the
morning in question and that his vehicle was travelling in Lane Four and not
Lane Five. He was, therefore, not in the position of a driver in a curb lane who
must remain aware of the possibility that a pedestrian could suddenly step off
the curb directly in front of his or her vehicle. In my opinion it is
unreasonable to expect a driver in Mr. Evoy’s position and circumstances
to anticipate or focus on the possibility that someone could be standing in the
middle of the roadway as his or her vehicle proceeds through a controlled intersection
on a green or yellow light.

[68]        
Finally, once Mr. Evoy became aware of Mr. Vandendorpel’s
presence, Mr. Evoy had a duty to take precautions to avoid a collision: Kerr
(Litigation Guardian of) v. Crieghton, 2008 BCCA 75, at para. 32. The
precaution that is expected of a defendant in this situation is to “take
evasive action”: Simpson, at paras. 29-30. However, evasive action
can be limited to simply applying the brakes once a pedestrian is seen. In Melgarejo-Gomez
v. Sidhu, 2002 BCCA 19, Justice Braidwood concluded:

[25]      No provision in law
requires a driver to exercise a duty such that one could say that Mr. Sidhu
ought to have seen the pedestrian earlier. Regardless of whether Mr. Sidhu
applied his brakes before or after striking Mr. Melgarejo-Gomez, one can
assume he applied them upon first becoming of aware of the pedestrian. That is
all that was required of Mr. Sidhu, as (according to the jury’s finding)
he was lawfully within the intersection and Mr. Melgarejo-Gomez was not.

[69]        
Counsel for Mr. Vandendorpel emphasizes that “Mr. Evoy would
have cleared the entire intersection in approximately 1.66 seconds”. The
expert opinion of Mr. Sdoutz, a witness tendered by the plaintiff, clearly
indicates that the perception-response times in emergency situations are
typically 1.1 to 1.3 seconds. On the plaintiff’s own evidence I find that Mr. Evoy
did not have a sufficient opportunity to avoid the collision.

[70]        
In my opinion, Mr. Evoy acted in accordance with the provisions of
the Act and met the standard expected of him with regard to his duty to
take care and to take precautions to avoid the collision.

Conclusion

[71]        
The burden of proving on a balance of probabilities that Mr. Evoy
was responsible for the accident lies with Mr. Vandendorpel. In F.H. v. McDougall, 2008 SCC 53,
Mr. Justice Rothstein explained:

[49] … in civil
cases there is only one standard of proof and that is proof on a balance of
probabilities In all civil cases, the trial judge must scrutinize the relevant
evidence with care to determine whether it is more likely than not that an
alleged event occurred.

[72]        
In my opinion Mr. Vandendorpel has failed to establish that Mr. Evoy
was negligent on the morning of 9 October 2010 and responsible for the accident
that is the subject of this litigation. Although he suffered a regrettable
injury to his right ankle, on the evidence before me I find Mr. Vandendorpel
was solely responsible for the collision that resulted in that injury.

Order

[73]        
The plaintiff’s action is dismissed.

[74]        
The parties have leave to address the issue of costs in the event there
is a need to do so.

“G.R.J. Gaul, J.”