IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Chen v. Beltran, |
| 2010 BCSC 302 |
Date: 20100310
Docket:
M063729
Registry: Vancouver
Between:
Yi-Lang
Chenc also known as Allan Chen, an infant,
by his litigation guardian, Li Jin Huang also known as Jean Huang
Plaintiff
And
Juan
Jose Beltran and Soleybi Leticia Fernandez
Defendants
Before: The Honourable Mr. Justice Greyell
Reasons for Judgment
Counsel for the Plaintiff: | D. Shane |
Counsel for the Defendants: | A. Burnett |
Place and Date of Trial: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
[1]
The plaintiff, Allan Chen, by his litigation guardian,
claims damages for injuries sustained in an accident which occurred February
27, 2006. The accident occurred when Allan, on a skateboard and against a red
light, proceeded into the intersection of 10th Street and Royal Avenue in New
Westminster, B.C. The sole issue to be determined is whether the defendants
are partially at fault for the accident. The plaintiff admits that Allan was
at fault for at least a portion of his injuries but says the defendants were also
negligent.
[2]
The defendants Soleybi Fernandez and Juan
Beltran are respectively the owner and driver of the vehicle that struck the
plaintiff.
BACKGROUND TO THE ACCIDENT
[3]
At the time of the accident Allan was 11 years
old and attended John Robson School in New Westminster. On February 27, 2006 he
and his friend Charlie Wei left school as soon as the dismissal bell rang intending
to attend the New Westminster Kumon Learning Centre where they did their
homework. The boys were in a hurry to get to the Centre because when they
finished their homework they could play computer games. To get to the Centre
the boys had to go south on 10th and cross Royal Avenue. They attended every
Monday and Wednesday after school and knew the route well.
[4]
10th Street runs roughly in a north-south
direction and Royal Avenue in an east-west direction. Both have steep downhill
declines to the site of the accident. The intersection is controlled by traffic
lights and marked crosswalks. Both 10th Street and Royal Avenue are busy
through streets.
[5]
After they left the school Allan and Charlie
travelled south on 10th Street down the hill toward Royal to get to the Centre.
Allan travelled the route sitting on his skateboard with Charlie trotting or
jogging beside or behind him. As the events immediately following demonstrate,
Allan was a very novice user of the skateboard. He could not stand on the
board so he travelled seated, with his knees tucked up, his feet in front on
the board, and his hands on the board behind him. He wore no helmet but wore
his backpack over his shoulders. This was not the first time he had travelled
to the Centre in this fashion. Charlie testified he and the plaintiff had
travelled in this fashion approximately five times in the two and a half weeks
prior to the accident.
EVIDENCE OF WITNESSES
[6]
Several witnesses observed Allan as he travelled
on his skateboard south on 10th Street.
[7]
Mr. Pierce Brewster lived on 10th Street, in the
vicinity of the accident and knew the area well. He testified he was walking
down 10th Street about 400 feet above or to the north of Royal when the two
boys emerged from behind a retaining wall. Allan passed him sitting on a skateboard
with Charlie trotting behind. One said excuse me and he moved out of the
way. He said that as he watched them go down the hill he saw a pedestrian
coming up the hill who had to step aside so Allan could pass by.
[8]
He then saw Allan go off the sidewalk onto an
adjacent grassy strip. Mr. Brewster became concerned Allan would hurt himself
because of the steepness of 10th and the busy intersection Allan was
approaching. Mr. Brewster was also concerned about the potential for cars
pulling out from driveways in the vicinity. He testified he yelled Hey
kids. The two boys were about 100 feet below him on 10th at the time. He
said Allan got back on his skateboard and proceeded down the hill again. Mr. Brewster
testified that then so much happened so fast. He became sick as Allan
passed the driveway to his apartment which was located on 10th close to the
intersection with Royal.
[9]
Mr. Brewster testified he watched Allan and
Charlie for a total of perhaps a minute and although he did not see the traffic
lights as his vision was blocked by trees and shrubs, he did see dozens of
cars proceeding on Royal travelling briskly and steadily. He testified
Allan shot out into the intersection and collided with a vehicle.
[10]
Mr. Bakonyi and his wife were travelling north
on 10th approaching Royal. The light on 10th changed to red, so he stopped at
the intersection. He testified he said he had a clear view. He said he saw a
bunch of students come down both sides of 10th on the sidewalk. He saw a boy
(Allan) put down a skateboard around 100 metres from the intersection, sit
on it with his hands on the back and start rolling down the sidewalk. He
testified the boy came faster and faster and when he realized there was a risk
he put both legs to the sidewalk and tried to brake the blade I saw his face
was panic because the blade went faster. Mr. Bakonyi testified he told his
wife the boy cant stop. He said Allan went into the intersection and that
the driver tried to swerve to the left to avoid him but could not. He said the
car pushed Allan some 10 meters into the intersection. Mr. Bakonyi ran to
assist others at the scene.
[11]
Ms. Susana Somogyi, Mr. Bakonyis wife,
testified her husband drew her attention to Allan when he said something to the
effect look at that stupid kid. She first saw Allan when he was a good
one-half block away. Ms. Somogyi said Allan come so fast no chance to
stop. She did not know if he was sitting on the skateboard but said he was definitely
low kneeling or sitting, definitely not lying on his back. In cross-examination
she said the defendants car would not have been able to stop even if it was
travelling at 20 or 30 kph at the time.
[12]
Ms. Jane Johnston, one of Allans teachers at
the Learning Centre testified she was coming up to, if not stopped, at the
intersection eastbound on Royal intending to make a right-hand turn to go south
on 10th. She was in the inside lane of three lanes and said she was looking
forward and to the left to check to see if traffic was coming. She said she saw
Allans body in the air as she approached the intersection. She pulled over
and ran to him and tried to keep him calm. She testified there were a number
of children around the area coming down from the school towards the Westminster
Quay area. She acknowledged in cross-examination she did not see events before
the impact.
[13]
Mr. Frank Layako was driving a 5-ton truck east
bound on Royal Avenue. He stopped at the intersection of 10th waiting for a
red light, intending to turn left on 10th. He said he saw a child gliding down
10th on a skateboard. He said the child was lying down flat on the board. He
said the defendants vehicle was 20-30 feet from the intersection or by an
alley preceding Royal when the light turned green. He anticipated there was
going to be an accident. When the defendants vehicle struck Allan he saw
Allan under the car and immediately jumped out and ran to assist. Together
with several others they were able to lift the car while the defendant moved it
back in order that they could attend to Allan who appeared trapped under a
plastic device attached to the bumper.
[14]
In cross-examination Mr. Lakayo said he did not
see Allan make any attempt to stop before he reached the intersection. He said
No he not try. He lay flat on board with face up to the sky. He said Allan
was lying too low to see. Mr. Lakayo thought the light had been green for
him (and the defendants) for between 30 seconds to a minute and that Allan
was too close, too fast.
[15]
The defendants, Ms. Fernandez and Mr. Beltran,
were driving west in the curb lane on Royal approaching the intersection with
10th. Ms. Fernandez was sitting in the passenger seat. She testified they
were travelling with other traffic, no faster or slower. She said she saw the
plaintiff in an instant before the accident, that he was coming down the
hill on 10th rolling really fast and trying to get his arms and legs on the
ground in an effort to stop. She said he then appeared to jump the curb
really fast and was instantly in front of the car. She said she had no chance
to call out a warning. She recalled Mr. Beltran immediately braking and
swerving to the left. She testified that there was an instant between the
time she first saw Allan and the time Mr. Beltran braked and swerved.
[16]
Mr. Beltran testified in direct examination he
was perhaps 30 feet from Allan when he first saw him. In cross-examination he
agreed he was familiar with the area and knew there was a school nearby. He
agreed he was travelling down a steep hill on Royal and that the streets were
wet and therefore slippery. He thought he was travelling less than 50 kph perhaps
40 kph but going with the normal flow of traffic. He said as he approached
10th Avenue the light was red and he had his foot on the brake pedal. As he
was about two car lengths from the intersection the light turned green and he
then put his foot on the accelerator. He said he was keeping his eyes on the
light on Royal anticipating it would change from red to green but at the same
time was watching for lights and pedestrians. He agreed his vision was blocked
by buildings on his right. He said he saw no children at the intersection. He
agreed he did not reduce his speed in anticipation of a child appearing at the
interesection. Mr. Beltran testified when he first saw Allan he was on the
sidewalk immediately adjacent to the intersection and about three feet away.
He said Allan just came flying down, that he reacted immediately but had no
chance to avoid striking him.
[17]
Charlie testified but could not recall much of
what occurred. He said the two of them were trying to get to the Centre fast
for the reasons stated above. He believed Allan slowed several times going
down the hill and thought he was stopped at the time he was hit by the
defendants vehicle. He did not remember how Allan stopped but said he thought
it was by using his feet. Charlie did not remember Allan passing two
pedestrians on the sidewalk.
[18]
Allan gave evidence. Not surprisingly he does
not recall much prior to the accident. He does recall trying to slow down his
skateboard by using his feet. He does not recall whether he was able to stop
or not. He does not remember seeing a traffic light or seeing the car that
struck him. He recalls being told by his parents to get off his skateboard
whenever he crossed a road.
Discussion of Expert Evidence
[19]
Both the plaintiff and defendants called
accident reconstruction experts to give evidence. I have found their evidence
to be of no assistance to me in reaching my conclusions as the assumptions upon
which both witnesses based their opinions are not supported by my findings of
the facts. The plaintiff called Mr. Rempel and the defendants called Mr. Ising.
[20]
The premise of Mr. Rempels opinion, in addition
to addressing matters raised in Mr. Isings report, was that had Mr. Beltran
been travelling at a slower rate of speed he would have been able to avoid the
collision with the plaintiff. The assumptions used by both experts were based
on when and where Mr. Beltran first saw Allan and the pressure Mr. Beltran then
applied to the brake pedal of the vehicle. In my view, both assumptions do not
correspond to the evidence at trial.
[21]
Mr. Ising assumed Mr. Beltran was between 28 and
40 metres from the intersection when he first noticed Allan. The preponderance
of evidence is that Mr. Beltran was much closer to the intersection. I
accept Mr. Beltrans evidence he was about two car lengths from the
intersection when he first saw Allan. Mr. Ising also assumed Mr. Beltran did
not hit his brake pedal as hard as he could. This assumption does not
correspond to Mr. Beltrans evidence. Again, I accept Mr. Beltrans
testimony that he applied his brakes as hard as he could and swerved his vehicle
away from Allan.
[22]
Mr. Rempel acknowledged in cross-examination he
did not take into account any time lag to account for human reaction time.
That is, he did not take into account the time it would have taken Mr. Beltran
to recognize the emergent situation developing in front of him. I accept the
defendants position it would have taken time for Mr. Beltran to recognize and react
to the danger posed by Allan coming into her sight from the right. Mr.
Rempels report and opinion evidence is likewise of no assistance to the Court
as it is based on many of the same assumptions upon which Mr. Ising based his
report.
DISCUSSION OF LEGAL PRINCIPLES
[23]
As stated, the plaintiff has admitted Allan was
negligent and partly at fault for his injuries arising from the accident. The
issue to be decided is whether the defendants are also at fault and, if so, the
respective degrees of fault. Fault is assessed by determining each partys
blameworthiness for the accident.
[24]
The proper approach for a trial judge to follow
in addressing this issue was set out in Cempel v. Harrison Hot Springs Hotel
Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.), where Mr. Justice Lambert said at
para. 24:
In the
apportionment of fault there must be an assessment of the degree of the risk
created by each of the parties, including a consideration of the effect and
potential effect of occurrences within the risk, and including any increment in
the risk brought about by their conduct after the initial risk was created. The
fault should then be apportioned on the basis of the nature and extent of the
departure from the respective standards of care of each of the parties.
See also The
Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505.
[25]
The law to be applied in determining the duty of
a driver when there are children in or about the area was set out by Hood J. in
Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27
M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:
55 In
my opinion, once the presence of a child or children on a road is known, or
should have been known, to the driver of a vehicle proceeding through a
residential area where children live, that driver must take special precautions
for the safety of the child or children seen, and any other child or children
yet unseen whose possible appearance or entrance onto the road is reasonably
foreseeable. The precautions include keeping a sharp look out, perhaps sounding
the horn, but more importantly, immediately reducing the speed of the vehicle
so as to be able to take evasive actions if required.
[26]
In the next paragraph of his judgment, Hood J.
went on to apply that principle to the facts of the case before him:
56 In
the case at bar, the defendant saw the two boys on the south sidewalk, east of
the Latta intersection, and probably in the area of the red vehicle, as her
vehicle approached the intersection. Shortly thereafter she saw Brandon run
from in front of that parked red vehicle, and across the avenue. In my opinion
in the circumstances, she should have been warned of the possibility of at
least one other child following the first, that is running out from in front of
the red vehicle and across the avenue. In my view the possibility of that
occurring was reasonably foreseeable. The defendant should have kept a sharp
look out, particularly in relation to the front area of the red vehicle. This
was the only obstruction of her view on the south side of the street. Brandon
had appeared from the front of that vehicle, and she had observed the two boys
a bit to the west of it earlier. She should have sounded her horn to warn any
child there of the approach of her vehicle, and she should have immediately
reduced the speed of her vehicle so as to avoid what actually occurred viz
striking another child running out from in front of the parked red vehicle. The
defendant did not take the special precautions required, and was guilty of
negligence which caused or contributed to the cause of the accident.
The above standard of care has been
followed in numerous subsequent decisions: see for example, Hixon (Guardian
ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v.
James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.
[27]
The general principle underlying any
determination of fault or blameworthiness rests on a finding whether the
defendant could reasonably foresee that his or her conduct would cause or
contribute to the accident. When it is known there are young children in the
area drivers must use extra care and attention as children do not always behave
as adults would in similar circumstances. In Chohan v. Wayenberg (1990),
67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:
… There is, of
course, a need for constant vigilance for children on the roads, especially in
suburban areas, for the very reason that they can not be expected always to act
with the same care that is expected of adults.
DISCUSSION and CONCLUSION
[28]
The plaintiff bears the onus of establishing the
defendants are partially at fault for the accident. I am unable to conclude
the plaintiff has met this onus based on my finding as to how this unfortunate
accident occurred.
[29]
The plaintiff argues there was a school close by
which had just dismissed students for the day and there were many children in
the area where the accident occurred. The plaintiff says Mr. Beltran knew of
the presence of the school, of the presence of children in the area of the
intersection. The defendant should have been on the alert to expect the
unexpected. The plaintiff argued Mr. Beltran should have been driving at
a slower speed given the potential for children in the area, that the roads
were slippery and he was travelling on a downhill grade. The plaintiff also
argued Mr. Beltran was looking at the street lights ahead of him, trying to time
the lights instead of paying attention to his immediate surroundings.
[30]
I have considered each of the plaintiffs
arguments. I am unable to find on the evidence that there were other children
at or about the intersection at the time the accident occurred such that Mr.
Beltran should have been placed on a heightened alert that he should drive with
caution approaching the intersection. While there was evidence there were
children present at the intersection shortly after the accident as Ms. Johnston
testified, and there were children on 10th Street, I think it likely Allan and
Charlie well preceded those children to the intersection in their haste to get
to the Learning Centre.
[31]
None of the witnesses who were in vehicles at
the intersection testified to the presence of school children before the
accident occurred. She did not witness the accident. While Ms. Johnston
testified there were children present at the time she assisted Allan she did
not say there were children at or about the intersection prior to the accident
occurring. Mr. Bakonyi watched Allan for 100 meters and became so concerned he
drew Allans conduct to his wifes attention with a rather pointed remark. He
did not testify there were school children on the sidewalk or through whom
Allan needed to travel before he travelled out onto the roadway.
[32]
Mr. Brewster also watched Allan as he travelled
down the sidewalk. He did not testify there were other school children at or
about the intersection or on the sidewalk in front of Allan as he proceeded
down the hill. Of course his view was a narrow one being blocked by trees,
shrubs and cars but Allan was travelling down Mr. Brewsters line of sight. He
saw Allan pass a woman walking up the hill and shortly thereafter proceed right
out into the intersection against the light.
[33]
Mr. Beltran testified he did not see any
children in the area of the intersection. Ms. Fernandez did not recall any children
present although she said she was in a state of shock immediately after the
accident.
[34]
I accept Mr. Beltrans evidence he was
travelling below the posted speed limit and in a manner consistent with the
speed of other traffic travelling in his direction. There is no evidence to
suggest otherwise. I do not accept the plaintiffs argument that given the road
conditions, steepness of the hill and the fact there was a blind spot on his
right Mr. Beltran should, as a reasonably prudent driver, have been driving at
a slower rate of speed. As Ms. Somogyi said, the defendant driver would
not have been able to stop even if he had been travelling at 30 or 20 kph.
[35]
Certainly there are inconsistencies in the
evidence. Ms. Johnston testified she saw Allan fly through the air. Other
witnesses testified he was trapped under the vehicle by the plastic attachment
to the front bumper and pushed by the vehicle across the intersection. I think
it likely Ms. Johnston was mistaken in this aspect of her testimony. This is
not to suggest the balance of her evidence was unreliable. She was, as were
all the witnesses, upset by what they observed.
[36]
Mr. Brewster testified he saw a steady stream of
traffic on Royal Avenue at the time Allan went into the intersection. The
plaintiff argues this evidence is suspect as Mr. Beltran testified he was about
two car lengths from the intersection when the light changed. I accept the
evidence of Mr. Beltran of his location when he first saw Allan.
[37]
While Mr. Brewster may have been mistaken in
this regard, I accept his evidence of his observance of Allan as he proceeded
downhill on 10th Avenue. Mr. Lakayo thought Allan was lying flat on the
skateboard. The preponderance of evidence is that he was sitting. What is
clear is that Allan presented a small and unexpected profile to Mr. Beltran
as he came into view.
[38]
The plaintiff further argued the vehicle owned
by the defendant Ms. Fernandez and driven by Mr. Beltran had defective
brakes. The position was not seriously pursued in final arguments. The
vehicle was impounded by the New Westminster Police immediately after the
accident for inspection. It was returned to the defendants several days later
after having been found to have no significant defects. There is no evidence
to suggest the brakes on the vehicle were defective.
[39]
The overwhelming preponderance of evidence leads
me to conclude that Allan emerged suddenly and unexpectedly from the sidewalk
on 10th Street onto Royal Avenue, virtually in front of the Beltran vehicle
giving Mr. Beltran no chance to avoid hitting him. I further conclude there
were no circumstances at or about the intersection which should have put the
defendant Beltran on guard or drive with extra care or caution.
[40]
I conclude the defendants are not at fault for
the unfortunate accident in which Allan was involved on February 27, 2006. The
plaintiffs action against the defendants is dismissed.
[41]
If the parties cannot agree on the issue of
costs they can, within 21 days of the issue of this decision make
representations in writing to me or request a hearing.
GREYELL J.