IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100615

Docket: M070501

Registry:
Vancouver

Between:

Marshall Torok by His Guardian Ad Litem, Harlene
Conner

Plaintiff

And

Rajinder Singh Sekhon and Satnam Education Society of
B.C.

Defendants

And

Harlene Conner

Third Party

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
On the day before his 14th birthday, the plaintiff, Marshall Torok, was
riding his bicycle and collided with a school bus driven by the defendant,
Rajinder Sekhon. Mr. Torok suffered injuries, including one to the knee
that has required four operations.

[2]            
This trial was, by consent of the parties, confined to the determination
of liability.

[3]            
The collision occurred at approximately 4:00 p.m. on November 17,
2003, at the intersection of 84th Avenue and 150th Street in Surrey, B.C., in a
residential area near a park and a school. Mr. Torok and his friend, Brad
Kolba, had walked their bicycles across 84th Avenue about a block east of the
accident scene, then rode downhill on the sidewalk toward 150th Street. They were
riding west on the south sidewalk of 84th Avenue—that is, they were riding on
what was, for them, the left side of the street, facing oncoming traffic.

[4]            
The defendant, Mr. Sekhon, was driving a school bus eastbound on 84th
Avenue, then made a right turn onto 150th Street. The collision occurred as he completed
the turn. At the point where he began his turn, Mr. Sekhon had just left a
school zone. The bus he was driving was owned by his employer, the defendant,
Satnam Education Society of B.C.

[5]            
Mr. Torok testified that as he was riding downhill toward the
intersection, he was travelling as fast as he was able to peddle and was
keeping pace with the cars travelling in the same direction on the opposite
side of the street. It was raining and the roads were wet. He said that he saw
the school bus coming toward him, but saw no turn signal.

[6]            
Mr. Torok said that just as he was about to leave the sidewalk and
enter the roadway of 150th Street, the school bus made a right turn across his
path. He said that he applied his brakes and put one foot on the ground, but
was unable to stop before colliding with the side of the bus. Mr. Kolba said
he was riding behind Mr. Torok and he described the accident in similar
terms, although both he and Mr. Torok had a poor memory for surrounding
details.

[7]            
Mr. Sekhon was driving his regular route, taking children home from
the private school he worked for. He said that as he approached the
intersection, he saw the boys riding their bicycles on the sidewalk. He said that
he made a right turn after signalling, then felt something hit is rear bumper. He
looked in his side mirror and saw a boy falling.

[8]            
According to Mr. Sekhon’s description, it was Mr. Kolba who
hit the bumper, then Mr. Torok collided with Mr. Kolba. That
description was based on a very brief observation in the side mirror of the
bus; it is not consistent with what Mr. Sekhon, speaking through an
interpreter, told the police officer who investigated at the accident. It is a
description that, with respect, makes no sense and I find it more likely that Mr. Torok
collided with the side of the bus at some point ahead of the rear bumper.

[9]            
However, Mr. Sekhon’s evidence that he had activated his turn
signal is supported by that of an independent witness, Hardish Dosanjh. Ms. Dosanjh
had been driving west on 84th Avenue and had stopped while waiting to make a
left turn onto 150th Street. She testified that she saw the school bus approaching
with its turn signal on.

[10]        
I accept Ms. Dosanjh’s evidence. I find that Mr. Torok failed
to notice the turn signal.

[11]        
Ms. Dosanjh also said that she saw the boys on their bicycles and
wanted to make sure they passed before she completed her turn. She said that
she saw the school bus turn and that she stopped to help after the collision,
but that she did not see the actual impact.

[12]        
Mr. Torok was taken to hospital after the accident and did not
speak to the investigating police officer at the time. When he was interviewed
two weeks later, Mr. Torok was quoted as saying the brakes on his bike
were not functioning “the greatest”. However, Mr. Torok denies the defence’s
suggestion that the brakes were defective. He said that the bike had been
purchased only about two weeks before the accident. After the purchase, Mr. Torok
said that he took it back to the store to have the brakes checked because he
wanted to do wheel stands and other tricks that require very tight brakes. Mr. Torok
said that at the time of accident the brakes were functioning well, but still not
to the high standard he wanted.

[13]        
Mr. Torok’s evidence about the bike being new and having had its
brakes recently checked is supported by the evidence of Harlene Conner, his
grandmother with whom he lived. Although she was no longer able to find the documents
related to the purchase, I have no reason to disbelieve her evidence.

[14]        
The defence relies on a computer simulation of the accident prepared by
Kurt Ising, a reconstruction engineer. Mr. Ising’s opinion is that Mr. Torok
could have stopped in time to avoid the collision if he had seen and reacted
promptly to either the turn signal on the bus or the beginning of the bus’ turn.

[15]        
I do not find Mr. Ising’s computer simulation or the opinion based
on it to be helpful. In order to create the simulation, Mr. Ising had to
make a number of assumptions that are not supported by evidence. These include
an assumption that the school bus had been travelling at 40 kph before it began
the turn. Mr. Sekhon gave no evidence of travelling at that speed, which
would have been in violation of the school zone speed limit of 30 kph.

[16]        
 Mr. Ising also assumes exact positions for the bicycles and the
school bus at the moment Mr. Sekhon first saw the bicycles. Those
assumptions are consistent with Mr. Sekhon’s evidence, which I accept as
being generally accurate. However, that evidence was based on a momentary
observation and recollection of approximate positions. I do not find it
sufficiently precise to support the detailed measurements that Mr. Ising
seeks to derive from it.

[17]        
Mr. Sekhon was making a legal turn and was not driving at an
excessive speed. In Hadden v. Lynch, 2008 BCSC 295 at paras. 69-70,
a case involving a collision between a motor vehicle and a bicycle, this Court
said:

[69]      It is important to remember in cases like the one
at bar that the standard of care of a driver is not one of perfection, but
whether the driver acted in a manner in which an ordinarily prudent person
would act, see Orr v. Faucher, 2005 BCSC 1343; Addison v.
Nelles, 2003 BCSC 1860, aff’d 2004 BCCA 623; Russell v. Wang, 2000
BCSC 534.

[70]      It seems clear that
for the court to impose liability on the defendant, the plaintiff must prove
either that the defendant did in fact see him or that the defendant ought to
have seen him. If the defendant did not, or should not have, seen the
plaintiff, then the defendant could not have been expected to do anything
except proceed through the intersection as he did.

[18]        
The essential fact in this case is that Mr. Sekhon did see Mr. Torok
and Mr. Kolba approaching the intersection at which he planned to turn. Moreover,
he was driving in an area and at a time of day when the presence of children
was to be expected. The duty on a driver in such a situation was recently
summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[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.

[19]        
The plaintiff in Chen was 11 years old. The plaintiff in this
case was somewhat older, but still of an age when a reasonable driver would
know that he would not necessarily act “with same care that is expected of
adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is
well known.

[20]        
Having seen Mr. Torok and knowing that their paths were about to
cross, the duty of Mr. Sekhon was to proceed with caution and to complete
his turn only when he could do so safely. That meant either satisfying himself
that he could complete his turn before the boys reached the intersection or,
more prudently, slowing or stopping until he knew that the boys had either
passed the intersection or had stopped to allow him to pass. 

[21]        
Mr. Sekhon failed to take either precaution. Although he clearly saw
the boys and knew their direction of travel before his turn, he was apparently unaware
of their location as he was actually making the turn. There is no evidence of
anything that would have prevented Mr. Sekhon from stopping briefly in
order to ensure that he could turn safely. I therefore find that, in the
circumstances, Mr. Sekhon failed to take sufficient care and was
negligent.

[22]        
However, I find that Mr. Torok also failed to take reasonable care
for his own safety. He was riding his bicycle on a sidewalk, then into a
crosswalk, and was riding on the left, rather than the right side of the road. All
of those actions are violations of s. 183(2) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation
of s. 184. Mr. Torok was of sufficient age and experience to know,
and in fact did know, that he was riding in an illegal manner. He also knew
that he was approaching an intersection at a high speed and needed to be aware
of the possibility of vehicles turning either into or from 150th Street. He saw
the approaching school bus and failed to notice its turn signal. As a result, I
find that Mr. Torok was contributorily negligent.

[23]        
In such circumstances, the apportionment of liability must be based on
the degree to which each of the parties was at fault, not on the degree to
which each party’s fault caused the damage: Bradley v. Bath, 2010 BCCA
10 at para. 25. In Bradley, the Court of Appeal adopted the
following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was
described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC
Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the
standard of care to which he is required to conform for his own protection and
which is a legally contributing cause, together with the defendant’s default,
in bringing about his injury. The term “contributory negligence” is
unfortunately not altogether free from ambiguity. In the first place,
“negligence” is here used in a sense different from that which it bears in
relation to a defendant’s conduct. It does not necessarily connote conduct
fraught with undue risk to others, but rather failure on the part of the
person injured to take reasonable care of himself in his own interest.
… Secondly, the term “contributory” might misleadingly suggest that the
plaintiff’s negligence, concurring with the defendant’s, must have contributed
to the accident in the sense of being instrumental in bringing it about.
Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]        
The facts of Bradley are somewhat similar to this case. There, a
bicycle on the sidewalk collided with a vehicle that was coming out of a gas
station. The Court of Appeal said at para. 28:

[28]      In my opinion, the
plaintiff was at fault, and his fault was one of the causes of the accident. Contrary
to law, he was riding his bicycle on the sidewalk against the flow of traffic. He
saw the defendant’s vehicle moving towards the exit he was approaching. Rather
than making eye contact with the defendant or stopping his bicycle and letting
the defendant’s vehicle exit the gas station, the plaintiff assumed the
defendant saw him and would not accelerate his vehicle. In these circumstances,
he was at fault for continuing to ride his bicycle across the path to be taken
by the defendant’s vehicle in exiting the gas station.

[25]        
Although I have found that Mr. Torok, at age 14, was old enough to
be found contributorily negligent, I must still consider his age in the
apportionment of fault. His conduct is to be measured against what is to be
expected of a reasonable person of his age and experience, not against the
standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver
B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270
(B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]        
In the circumstances, I find that Mr. Torok and Mr. Sekhon
were equally at fault. Each saw the other and each failed to take the necessary
precautions to allow for the other’s presence and possible movements. Balancing
all of the factors, including Mr. Torok’s violations of the governing
statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and
the likely presence of young people, I cannot say that one party is more
culpable than the other. I therefore find that the defendants must bear 50 per
cent of the liability for the accident.

“N.
Smith J.”