IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Curtis v. Farlinger, |
| 2015 BCSC 1320 |
Date: 20150415
Docket: 12-0732
Registry:
Victoria
Between:
Katy Leigh Ann
Curtis
Plaintiff
And:
Joan Farlinger
Defendant
Before:
The Honourable Mr. Justice G.R.J. Gaul
Oral Reasons for Judgment
Counsel for Plaintiff: | C. Gordon |
Counsel for Defendant: | S. Farquhar |
Place and Date of Hearing: | Victoria, B.C. |
Place and Date of Judgment: | Victoria, B.C. April 15, 2015 |
Introduction
[1]
On a sunny summer afternoon in 2001, 9-year-old Katy Curtis was cycling north
on Fulford‑Ganges Road on Salt Spring Island. As she approached Horel
Road, Ms. Curtis decided to cross to the other side of Fulford-Ganges Road.
Sadly for all concerned, Ms. Curtis was not able to cross the road before a
vehicle being driven by the defendant, Joan Farlinger, appeared from the south
and collided with her.
[2]
In 2012, after she had turned 19 years of age, Ms. Curtis commenced
the present lawsuit. In her action, she alleges that Ms. Farlinger
negligently operated her vehicle on the day in question and is therefore solely
responsible for the accident.
[3]
The parties have agreed that Ms. Curtis suffered a serious injury
to her right leg, as well as psychological injuries as a result of the
accident. Moreover, they have agreed that the quantum of those damages amounts
to $150,000. What the parties cannot agree on is the precise location of the
accident and more importantly who was responsible for the accident. The
location of the accident is important to the question of liability because
Fulford‑Ganges Road gently curves to the right as it approaches Horel
Road and that has implications for when Ms. Farlinger saw or ought to have
seen Ms. Curtis.
[4]
The principal issue at trial and the one that will determine the
question of liability is whether Ms. Curtis was there to be seen by
Ms. Farlinger so that the latter had sufficient time to avoid the
collision.
The Evidence
[5]
The evidence tendered in support of the plaintiff’s case included the
testimony of Ms. Curtis, as well as that of her mother, Tracey Anderson.
The plaintiff also presented the evidence of Sarah Davidson, an accident
reconstruction engineer with Forensic Dynamics Incorporated. Ms. Davidson provided
expert opinion evidence regarding the speed of Ms. Farlinger’s vehicle
just prior to the accident, as well as what Ms. Farlinger’s expected
response time would have been once she noticed Ms. Curtis.
[6]
The defence evidence consisted of the testimony of Ms. Farlinger
and Jonathan Gough. Mr. Gough is an accident reconstruction engineer
with Baker Materials Engineering Limited. He provided expert opinion evidence
regarding the speed of vehicles and the perception-reaction times of drivers.
[7]
The parties also reached an Agreed Statement of Facts that was filed as
an exhibit at trial. Those facts include:
5. At the time of the accident, the defendant was
driving a 1988 Honda two door in apparent good mechanical condition with no
brake or steering problems;
6. At the time of the accident, the weather was clear, warm
and dry;
7. At the time of the accident, the road surface was asphalt
and dry;
8. There were no other motor vehicles at the location of the
accident at the time of the accident;
9. The accident occurred on a section of Fulford Ganges Road
that is north of a curve in the road and south of the intersection with Horel
Road;
10. The speed limit at the accident site was 60 kilometres
per hour;
11. The Defendant was proceeding in the right hand lane in a
northerly direction along Fulford Ganges Road when she first observed the Plaintiff
in the middle of the left lane crossing on her bicycle; and
12. The defendant braked prior to
impact and left skid marks on the road immediately before the impact, which
totalled 54 feet (16.5 metres).
The Plaintiff
[8]
Ms. Curtis testified that on the afternoon of 7 June 2001, after
school was finished, she attended at her friend’s property to feed a pony.
Afterwards, around 3:30 pm, she mounted her new bicycle that she had previously
left at the property and rode north along the partly gravel and party paved
western shoulder of Fulford‑Ganges Road. Ms. Curtis described how she
had learned to ride a bike "quite a few years" prior to the date of
the accident and that by the summer of 2001 she had been cycling without adult
supervision several times. She further explained that prior to the accident she
had cycled the Fulford‑Ganges Road a number of times and that usually when
she was riding northbound towards Horel Road she used the western shoulder of
Fulford-Ganges Road because it was wider than the eastern shoulder.
[9]
Ms. Curtis said it was her usual practice to cross Fulford‑Ganges
Road at a location south of where the accident occurred, where the shoulder
widens. She could not remember why she rode past her regular crossing spot on
the day of the accident. She acknowledged that she did not cross Fulford-Ganges
Road at her usual location and instead attempted to do so at a more northerly
point closer to Horel Road.
[10]
In a written statement given to an insurance adjuster two weeks after
the accident, as well as at her examination for discovery on 10 July 2012,
Ms. Curtis agreed that she had missed her usual crossing point because she
had not been paying attention. At trial, Ms. Curtis resiled from these
statements, explaining that the statement had been prepared by the adjuster and
not her, and that the adjuster had chosen the words in the statement. With
respect to her discovery evidence, Ms. Curtis could not confirm that the answers
she had given about not paying attention were true, explaining that she had
felt very nervous and under pressure that day.
[11]
Ms. Curtis was certain that before crossing Fulford‑Ganges
Road she stopped her bicycle and oriented it perpendicular to the road. She
then looked both ways, listened for approaching vehicles, looked both ways
again and proceeded to cross. She did so without dismounting her bicycle and she
recalls that she was peddling fast at the time.
[12]
As she was crossing Fulford‑Ganges Road, she was looking down at
her peddles. At some point around the middle of the road she remembers looking
up and to her right and then seeing Ms. Farlinger’s oncoming vehicle.
Ms. Curtis explained that she did not have time to turn her bike around,
so she tried to peddle faster in order to get to the eastern shoulder before
the vehicle arrived. Just as she was reaching the eastern shoulder, Ms. Curtis
heard the screech of skidding tires. She was then struck on the right side by
the front of Ms. Farlinger’s vehicle. The impact propelled Ms. Curtis
off of her bike and onto the hood of the vehicle. Ms. Curtis then rolled
off the hood and fell onto the pavement in front of the car. She suffered
serious injuries to her right knee that eventually required surgical
intervention.
[13]
Ms. Curtis marked on a number of photographs of Fulford‑Ganges
Road, as well as a planned drawing of the road, where she believed she was when
she started to cross the road and where she believed she was when she was
struck by Ms. Farlingers vehicle. Those photographs and that planned
drawing are exhibits at trial. In cross‑examination, Ms. Curtis
agreed that both locations could have been further north on Fulford‑Ganges
Road and closer to Horel Road.
Tracey Anderson
[14]
Ms. Anderson testified that on the day of the accident she was at a
friend’s home near the corner of Fulford‑Ganges Road and Horel Road. She
had spoken with her daughter by telephone and was expecting her to arrive by
bicycle shortly. At around 3:30, Ms. Anderson heard the screech of
skidding tires coming from the Fulford‑Ganges Road area. She left her
friends residence and ran towards the sound she had just heard. There she saw
her daughter lying in the northbound lane of Fulford‑Ganges Road. Directly
behind her daughter was a vehicle that was stopped. The vehicle was in the
middle of the lane.
Sarah Davidson
[15]
The expert report dated 10 May 2013 that Ms. Davidson prepared
was entered as an exhibit at trial.
[16]
Given her experience as an accident reconstruction engineer and based on
a number of factual assumptions, including that the skid mark left by Ms. Farlinger’s
vehicle measured 16.5 metres, and that Ms. Curtis would have been visible
to Ms. Farlinger from approximately 100 metres south of the point of
impact, Ms. Davidson formulated the following opinions:
1.
Ms. Farlingers vehicle was travelling at approximately 56
kilometres prior to her applying its brakes and skidding to a stop.
2.
The typical perception-response for a driver under the circumstances
encountered by Ms. Farlinger is approximately 1.2 seconds. That is, it
would have taken Ms. Farlinger approximately 1.2 second from first
observing Ms. Curtis as a hazard on the roadway until she began to apply the
brakes of her vehicle.
3.
Had Ms. Farlinger reacted with a typical perception response time,
she could have brought her vehicle to a stop within 35 metres of where she was
able to see the hazard presented by Ms. Curtis.
4.
If Ms. Curtis became a visible hazard from a distance of 100 metres
prior to the point of impact, 5 to 5.5 seconds elapsed between that point and
when Ms. Farlingers vehicle began to skid to a stop.
5.
In the present case, the perception-response time of Ms. Farlinger
would have been approximately 5 to 5.5 seconds, approximately 4 seconds longer
than that expected of a typical driver.
Jonathan Gough
[17]
Mr. Gough was retained by the defendant to review Ms. Davidsons
report and comment upon the technical validity of the conclusions that she had reached
with respect to the dynamics of the accident. In his expert report dated 29 May
2013, Mr. Gough described and explained his disagreement with Ms. Davidsons
methodology and opinions. In Mr. Gough’s view, Ms. Davidson had
failed to properly address the uncertainties inherent in her calculations,
including uncertainties associated with the coefficient of friction that is
present from vehicle to vehicle and from location to location and the
perception-response time for an average driver.
[18]
Given that the exact coefficient to friction was unknown in the present
case, Mr. Gough maintained that it was preferable and more appropriate to
use a range of friction coefficients, rather than a single estimated
coefficient, as Ms. Davidson did. Using a range of friction coefficients,
Mr. Gough concluded that Ms. Farlinger’s vehicle was travelling at
between 48 and 59 kilometres an hour and that it would have taken her between 2
and 2.5 seconds to bring her vehicle to a stop. The material difference between
the two experts on this point is 4/10th of a second.
[19]
With regard to perception-response times, Mr. Gough again preferred
and explained why a range of times was more appropriate and necessary in the
present case. In his opinion, Ms. Farlinger’s perception-response time
ranged from .7 seconds to 2.3 seconds.
[20]
In cross‑examination, Mr. Gough agreed that using the range
of speed of Ms. Farlinger’s vehicle that he had calculated, along with the
range of the perception-response time he found more appropriate in the
circumstances, it would have taken between 27 and 53 metres for the vehicle to
come to a stop after Ms. Farlinger had noticed Ms. Curtis. For the
sake of comparison, I repeat that Ms. Davidson opined that it would have
taken approximately 35 metres for the Farlinger vehicle to stop.
The Defendant
[21]
Ms. Farlinger is 78 years old and has been a resident of Salt
Spring Island since 1996. She was 64 when the accident occurred.
[22]
On the day of the accident Ms. Farlinger was returning home from a
shopping trip to Victoria. At around 3:00 p.m. she disembarked the ferry
that had brought her back to Salt Spring Island and began driving northbound on
Fulford‑Ganges Road. She testified that she was travelling around the
speed limit, which was 60 kilometres an hour. As she was came around a gentle
curve in the road she noticed Ms. Curtis on her bike in the middle of the
southbound lane heading across the road towards her lane of travel.
[23]
According to Ms. Farlingers evidence in chief, as soon as she saw
Ms. Curtis she applied the brakes of her vehicle as hard as she could. In
cross‑examination, counsel for Ms. Curtis suggested to
Ms. Farlinger that she did not immediately apply the brakes of her vehicle
when she saw Ms. Curtis on the road, but instead waited until
Ms. Curtis was in her lane of travel. Although Ms. Farlinger
disagreed with this suggestion, she agreed that she had been asked the
following questions at her examination for discovery on 10 July 2012, and
had provided the following answers:
66 Q Okay. Now, when did you first apply
your brakes?
A As soon as I saw Katy, or as soon
as I saw her in my lane, rather.
67 Q And did your wheels start to skid at
that point?
A I’m not sure when they did, but
they did did — certainly did start to.
68 Q They left some
A They left marks.
69 Q — rubber on the road
A Oh, yes. Yes.
70 Q And were you slowing down before the
tires started to slide on the road?
A I think I must have been. I mean,
I ‑‑ I just I think I must have been. But I know that I
just ‑‑ when I saw that Katy was in my lane and so close to me,
I just put on my brakes as hard as I possibly could.
71 Q And when you first saw Katy she was
in the lane approaching you?
A Yes.
72 Q Yeah. Okay. Because — though you
didn’t start to slow, then, when you saw her in the northbound
A Not —
74 Q ‑‑ lane?
A —
not in the not it the southbound lane.
[24]
When asked in direct-examination what the speed of her vehicle was when
she collided with Ms. Curtis, Ms. Farlinger testified that she
thought she was going very slowly and that she had almost stopped. Although she
could not say for certain, she estimated her speed was roughly 5 to 10
kilometres an hour and added that she genuinely thought she was going to be able
to stop or avoid the collision.
[25]
In cross‑examination, Ms. Farlinger confirmed that there was
no southbound traffic coming towards her on Fulford‑Ganges Road at the
time of the accident. She also agreed that she did not sound the horn of her
car to alert or warn Ms. Curtis, nor did she attempt to steer her vehicle
to the right or left to avoid the collision. Ms. Farlinger explained that
she held onto the steering wheel of her car and did not let go or move it for
fear of losing control of her car.
The Parties Positions
The
Plaintiffs Position
[26]
Ms. Curtis says that she did what would reasonably be expected of a
9-year-old who was crossing a road on her bike. In particular, she says she
took reasonable precautions to ensure that it was safe to proceed and then did
so. As such, she submits she should not shoulder any of the blame for the
accident.
[27]
According to Ms. Curtis, the same cannot be said about the manner
in which Ms. Farlinger drove her vehicle. Ms. Curtis says
Ms. Farlinger saw her or should have seen her well before it became an
emergent situation with an impending collision. Moreover, Ms. Curtis
argues that aside from applying the brakes of her vehicle, Ms. Farlinger
was obliged to take additional steps, which she did not do, to avoid the
collision.
The
Defendants Position
[28]
Ms. Farlinger maintains that she operated her vehicle in a safe,
reasonable and responsible manner on the day of the accident. She says she was
faced with an unexpected hazard as she came around the curve on Fulford‑Ganges
Road just south of Horel Road. The hazard was Ms. Curtis cycling across
her path of travel.
[29]
Ms. Farlinger maintains that by crossing Fulford‑Ganges Road
in the manner and at the location that she did, Ms. Curtis created a
situation that left Ms. Farlinger with few options. Applying the brakes of
her vehicle as soon as she realized Ms. Curtis was crossing into her lane
of travel was, according to Ms. Farlinger, all that could reasonably be expected
of her in the circumstances.
[30]
Although she maintains she was not responsible for the accident,
Ms. Farlinger submits in the alternative that if she was liable then it
should only be a partial liability, as Ms. Curtis was partially
responsible as well.
Findings of Fact
[31]
In reaching my findings of fact, I have had to assess the credibility
and reliability of the witnesses who testified at trial, especially the two
principal witnesses, Ms. Curtis and Ms. Farlinger.
[32]
The credibility of a witness is not the same thing as the reliability of
a witness. In R. v. H.C., 2009 ONCA 56 at paragraph 41,
Mr. Justice Watt provided the following helpful observations on this point:
[41] Credibility and reliability are different.
Credibility has to do with a witnesss veracity, reliability with the accuracy
of the witnesss testimony. Accuracy engages consideration of the witnesss
ability to accurately
i) observe;
ii) recall; and
iii) recount
events in issue. Any witness
whose evidence on an issue is not credible cannot give reliable evidence on the
same point. Credibility, on the other hand, is not a proxy for reliability: a
credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995
CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
[33]
I found all of the witnesses who testified before me to be credible. That
is, they were responsive to the questions asked of them and, in my view,
attempted to answer those questions in a forthright manner. At no point did I
get the sense that any of them were attempting to improperly colour their
evidence or mislead the court.
[34]
The question of the reliability of the witnesses’ evidence is another
matter. In this regard, I am referring principally to Ms. Curtis and
Ms. Farlinger. While I found both of them to be earnest in their desire
and efforts to answer the questions asked of them, in my view the passage of
time has diminished their respective abilities to accurately recall and recount
the details of the events that transpired over the course of a few seconds 14
years ago.
[35]
I accept Ms. Curtis’s version of events as it relates to her cycling
on the western shoulder of Fulford‑Ganges Road and the general location where
she says she tried to cross the road. I also find that she missed her regular
crossing point on account of her inattentiveness. However, I do not find this distracted
state lasted long. I accept that when she decided to cross Fulford‑Ganges
Road, she brought her bike to a full stop at or near the location she indicated
on the plan drawing and photographs. She looked both ways; she listened for
cars; she looked again; and then she proceeded directly across the road. After
she had started to cross the road, Ms. Curtis looked across the road and
down at her peddles. It was not until she was close to the centreline of the
road that she again looked to her right. When she did so, she noticed
Ms. Farlinger’s oncoming car. Ms. Curtis chose not to stop or turn
around. Instead, she continued her path in the hope she would make it to the
eastern shoulder of Fulford-Ganges Road safely.
[36]
With respect to the expert evidence, I am persuaded by the evidence of
Mr. Gough that it would have been more accurate and helpful if
Ms. Davidson had provided a range of figures as opposed to a single approximate
figure when she provided her opinions.
[37]
I also find that Ms. Davidsons conclusion that Ms. Curtis was
or should have been visible to Ms. Farlinger from a distance of 100 meters
to be speculative and unfounded. In cross-examination, Ms. Davidson
confirmed that she did not know the distance between Ms. Curtis and
Ms. Farlinger when Ms. Curtis began to cross the road. Ms. Davidson
also acknowledged that the 100 meters was an assumption that she did not
determine for herself but instead obtained from Ms. Curtis former legal
counsel. In my view this diminishes the weight attributable to Ms. Davidson’s
evidence.
[38]
Notwithstanding the clash of opinions between the experts, the actual
material differences between them that are of any consequence are minor. While
I have discounted the weight to be given to the opinions of Ms. Davidson,
that has not adversely impacted the end result of this case. The reason for
that is my firm belief that this case is not about the exactness of
measurements. Rather it is about whether Ms. Curtis was visible to
Ms. Farlinger from such a distance that Ms. Farlinger could have and
should have avoided the collision.
[39]
Having considered all of the evidence, including the photographs of
Fulford‑Ganges Road, as well as a planned drawing of the accident scene,
I am satisfied that Ms. Curtis was there to be seen by northbound traffic
from at least 75 metres from the point of impact. Moreover, I am satisfied
that Ms. Curtis was still in the southbound lane when Ms. Farlinger
saw her. I am not convinced that Ms. Farlinger applied her brakes
immediately upon her seeing Ms. Curtis. In my opinion, the evidence points
to the fact that after noticing Ms. Curtis, Ms. Farlinger waited a
brief moment before applying the brakes of her vehicle. In that time
Ms. Curtis crossed the centre line and into Ms. Farlinger’s lane of
travel. It was at this point, after that brief delay, that Ms. Farlinger
applied her brakes. There was no oncoming traffic and, notwithstanding that
fact, Ms. Farlinger made no attempt to avoid the collision by steering her
vehicle to the right or left. The only effort she made was the unsuccessful one
to apply her brakes.
Discussion
[40]
My task is to determine who is legally responsible for the accident. To
do so, I begin with a review of each party’s statutory duties.
The
Defendants Statutory Duties
[41]
To support the allegation of negligence, counsel for Ms. Curtis has
cited various provisions of the Motor Vehicle Act, including section 144:
Careless driving prohibited
(1) A person must not drive a motor vehicle on a highway
(a) without due care and
attention,
(b) without reasonable
consideration for other persons using the highway, or
(c) at a speed that is excessive relative to the road,
traffic, visibility or weather conditions.
[42]
In my view, section 144(1)(c) is not applicable in the
circumstances of this case. The posted speed limit for this stretch of road
where the collision occurred is 60 kilometres an hour. The expert
reconstruction evidence called by both parties indicates that
Ms. Farlinger was likely travelling at that speed or slower immediately
prior to the collision. As well, by all accounts the afternoon of 7 June
2001, was clearly sunny and dry. While there were other vehicles on the road,
there were no other vehicles travelling in front of Ms. Farlinger, nor
were there any vehicles for some distance behind her. There were no vehicles
coming towards her either. Nothing on these facts suggests that
Ms. Farlinger drove at an excessive speed before the accident.
[43]
In my opinion, the issue of whether Ms. Farlinger is liable for the
accident is better addressed under sections 144(1)(a) and (b), which
prohibits driving without due care and attention or without reasonable
consideration for others using the road.
[44]
Ms. Davidson opined that Ms. Farlinger would have required 35
metres of distance between her vehicle and Ms. Curtis at the time she
first noticed Ms. Curtis in order to bring the vehicle to a halt and avoid
a collision. That figure accounts for perception response time, the delay
between Ms. Farlinger’s observing Ms. Curtis and her reaction, and
assumes a rate of travel of 56 kilometres prior to braking. Mr. Gough
testified that a range of between 27 and 53 metres was more appropriate, as it
accounted for a rate of travel of between 48 and 59 kilometres per hour.
[45]
On the evidence before me, I am satisfied that Ms. Farlinger
observed or ought to have observed Ms. Curtis when she was at least 75
metres away from the point of impact. With that in mind, it makes little
difference if I accept or prefer the evidence of Ms. Davidson or
Mr. Gough. Using either expert’s opinion, I find Ms. Farlinger was not
driving with due care or reasonable consideration. If she had been, she would
have responded sooner and more appropriately and would have been able to avoid
colliding with Ms. Curtis.
[46]
Counsel for Ms. Curtis also argued that the manner in which Ms. Farlinger
operated her vehicle breached s. 181 of the Motor Vehicle Act. That
provision reads, in part:
Duty of driver
[181] Despite sections 178, 179 and 180, a driver of a
vehicle must
(b) give warning by sounding the
horn on the vehicle when necessary, and
(c) observe proper precaution on observing a child or
apparently confused or incapacitated person on the highway.
[47]
Ms. Farlinger acknowledged that she did not sound the horn of her
vehicle at any point prior to the accident. In my opinion, section 181(b) obligated
her to do so. It was one of the preventative actions she could have and should
have taken once she saw Ms. Curtis crossing Fulford-Ganges Road. Ms. Farlinger
explained that she did not do so because she was concerned she would lose
control of her vehicle if she removed a hand from the steering wheel. I do not
find this evidence persuasive. If Ms. Farlinger saw Ms. Curtis from a
distance of 53 metres or greater, then it would have been reasonable, in my
view, for her to have sounded the horn of her vehicle prior to or as she was braking.
This would likely have alerted Ms. Curtis to the proximity of the
approaching vehicle, thus permitting her the opportunity to retreat from the
northbound lane or avoid entering it entirely. On the other hand, if
Ms. Farlinger only saw Ms. Curtis at a distance of 16.5 metres, the
length of the skid mark her vehicle left on the roadway when it came to a stop,
then sounding the horn would likely have made little difference to the outcome,
making her decision not to do so more defensible.
[48]
Counsel maintained that the provisions of s. 181(c) required Ms. Farlinger
to exercise greater vigilance because she knew or ought to have known that a
child was present on the roadway. In my opinion, a driver must take special
care for the safety of children who are on the road or whose presence is
reasonably foreseeable. Ms. Farlinger acknowledged in her testimony that
when she first saw Ms. Curtis on Fulford-Ganges Road she knew she was a
child. As such, her obligations under section 181(c) engaged at that point.
In my opinion, she failed to take the necessary steps to ensure the safety of
Ms. Curtis once she observed Ms. Curtis on the road. Ms. Farlinger
applied her vehicles brakes and gripped the steering wheel tightly, but did
nothing more to attempt to avoid the collision. I have already noted that she
did not sound the horn of her vehicle. In addition to that, she made no attempt
to steer her vehicle away from or around Ms. Curtis. I again note, Ms. Farlinger
estimates that her vehicle was only travelling 5 to 10 kilometres per hour when
it collided with Ms. Curtis. If that were so, then it would have been
reasonable and likely quite easy for her to alter the course of her vehicle in
order to avoid the accident. While it is unlikely that her vehicle was
travelling at such a slow speed, and this is an example of what I consider
Ms. Farlinger’s unreliability as a witness, I do accept that her speed had
diminished to the point where she believed she was going to avoid the
collision. That was, however, poor judgment on her part.
[49]
I find Ms. Farlinger could safely have avoided the collision by steering
her vehicle onto the unobstructed east shoulder area of Fulford-Ganges Road. Given
that there was no oncoming southbound traffic, Ms. Farlinger could also
have driven into the southbound lane of Fulford-Ganges Road to avoid striking
Ms. Curtis. Ms. Farlinger did neither of these things despite her
slow rate of travel, and despite her belief that Ms. Curtis had turned her
bicycle northbound and was therefore a smaller and more easily avoidable
target.
The
Plaintiffs Statutory Duties
[50]
Ms. Curtis was also subject to certain statutory requirements at
the time of the accident. The duties of a cyclist on a highway are set out in section 183
of the Act, which provides in part:
(1) In addition to the duties imposed by this section, a
person operating a cycle on a highway has the same rights and duties as a
driver of a vehicle.
(2) A person operating a cycle
(c) must, subject to paragraph (a),
ride as near as practicable to the right side of the highway,
(3) Nothing in subsection (2) (c) requires a person to ride
a cycle on any part of a highway that is not paved.
(14) A person must not operate a cycle
(a) on a highway without due care and attention or without
reasonable consideration for other persons using the highway.
[51]
Section 183(2)(c) required Ms. Curtis to ride as far to the
right side of Fulford-Ganges Road as practicable. For her that meant the roads
eastern shoulder. Just prior to the accident, Ms. Curtis was riding on the
western shoulder or left‑hand side of the Fulford-Ganges Road. According
to her evidence, the eastern shoulder of Fulford-Ganges Road widens at a
location south of where the collision occurred. She also explained that it was
her usual practice when cycling north on Fulford-Ganges Road to cross the road
at the location where its eastern shoulder widened. In other words, the eastern
shoulder of Fulford-Ganges Road was practicable for travel by bicycle north of
its widening point. By choosing to ride on the western shoulder of the road,
Ms. Curtis violated section 183(2)(c) of the Act. If she had
done otherwise and had been travelling on the eastern shoulder of the road, the
accident would likely not have occurred. However, it bears noting that Ms. Curtis
was struck by a vehicle while essentially in the act of achieving compliance
with section 183(2)(c).
[52]
If any act on the part of Ms. Curtis contributed to the accident,
it was, in my opinion, not her noncompliance with section 183(2)(c), but
rather her ill-fated attempt to comply with it. That conduct falls under
subsections 183(1) and 183(14)(a) of the Act, which required her to
operate her bicycle with due care and attention and reasonable consideration
for others using the highway.
[53]
As Ms. Curtis conceded in her testimony, vehicles travelling this
section of Fulford‑Ganges Road where the accident occurred tend to travel
quickly. The curve in the road hinders visibility, particularly for southbound
traffic. In my opinion, it was not a sound or safe point at which to attempt a
crossing, but she did so nevertheless. Nothing in the evidence indicates that Ms. Curtis
could not have continued travelling on the western shoulder of the road, either
northbound or southbound, in order to find a safer vantage point to cross the
road. By failing to do that, Ms. Curtis failed in her duty to operate her
cycle with due care or reasonable consideration for other users of the road,
including Ms. Farlinger.
Conclusion
[54]
Counsel for Ms. Farlinger is correct when he points out that there
are no playgrounds or schools in the area where the accident occurred, thus
lessening the likelihood of children being on the road. Nevertheless, there
were a number of residential homes in the area, and Ms. Farlinger knew
that cyclists used Fulford‑Ganges Road regularly. She also knew from
personal experience that it was a difficult road to cycle.
[55]
The circumstances of this case are not like those that were before
Mr. Justice Barrow in Friedrich v. Shea, 2008 BCSC 1243, a
case cited by counsel for Ms. Farlinger. In my view, the circumstances of
the present case called for Ms. Farlinger to keep an elevated level of attention
while she was driving. The standard of care expected of her was that of an
ordinary prudent driver in the particular circumstances (See: Hadden v.
Lynch, 2008 BCSC 295).
[56]
I have found as a fact that Ms. Curtis was present and visible to
northbound traffic from a considerable distance from the location of the
accident. In my opinion, notwithstanding the curve in the road and the slight
drop in elevation, Ms. Farlinger saw or should have seen Ms. Curtis
from at least 75 metres from the point of collision.
[57]
I am not satisfied that Ms. Farlinger applied the brakes of her
vehicle immediately upon her seeing Ms. Curtis. Had she done so, in all
likelihood she would have been able to avoid the collision. Instead she waited
a second or so until Ms. Curtis had proceeded further across Fulford-Gange
Road and was in her lane of travel. Even at this point, Ms. Farlinger
could have taken active steps that would likely have avoided the accident. She
could have sounded her vehicles horn; she did not. She could have steered the
vehicle to the left; she did not. She could have steered the vehicle to the
right; she did not. All she did was grip the steering of her vehicle while
applying its brakes. That, in my view, was insufficient.
[58]
In my opinion, the accident was principally caused by
Ms. Farlinger’s negligent operation of her vehicle and her failure to take
evasive manoeuvres that were available to her to avoid the collision.
[59]
The question now is whether Ms. Curtis contributed to the accident.
In Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878,
Mr. Justice Hinkson (as he then was) explained the applicable test as
follows:
[54] Where a child of more than tender years is alleged to be
contributorily negligent,
The most common formulation of the test is to ask whether
the child exercised the care expected from a child of like age, intelligence
and experience. (Linden in Canadian Tort Law, 8th edition,
at p. 153).
[55] The classic statement of the law relating to
contributory negligence on the part of children is found in the decision of the
Supreme Court of Canada in McEllistrum Estate v. Etches, 1956 CanLII 103
(SCC), [1956] S.C.R. 787 at 793, where
Chief Justice Kerwin for the Court stated:
It should now be laid down that where the age is not such as
to make a discussion of contributory negligence absurd, it is a question for
the jury in each case whether the infant exercised the care to be expected from
a child of like age, intelligence and experience. In the present case the trial
judge so charged the jury.
[60]
I find Ms. Curtis was partially responsible for the accident. In
reaching this conclusion on liability, as well as her degree of fault, I have
kept in mind her young age at the time of the accident, as well has her
experience as a cyclist and her familiarly with Fulford-Ganges Road. Ms. Curtis
had been riding her bike on her own for a few years prior to the accident. She
knew Fulford‑Ganges Road was a busy main thoroughfare for Salt Spring
Island. She also knew it was safer to cross the road at a point south of where
she did. In my opinion, Ms. Curtis was sufficiently familiar with the
roadway and the traffic conditions and she was sufficiently intelligent that
she should not have chosen to cross the road where she did. In taking the
course of action that she did, she negligently put herself in harms way.
Order
[61]
For all of the foregoing reasons, I find in favour of the plaintiff, Ms. Curtis.
In particular, I find the defendant, Ms. Farlinger, was 85 percent liable
for the accident; the plaintiff was 15 percent liable for the accident.
[62]
Ms. Curtis is entitled to her ordinary costs, unless either party
believes the issue needs to be spoken to. In such an event, or if there is any
other issue not addressed in these reasons that arises on account of the
pleading, the parties have leave to apply.
G.R.J. Gaul J.