IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120301

Docket: 44156

Registry:
Kamloops

Between:

Heidi
Louise Carson

Plaintiff

And

Susan
Ann Henyecz

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
On Mother’s Day, May 11, 2008, the plaintiff, Heidi Louise Carson, was
at her mother’s, Susan Ann Henyecz, rented home located at 575 Singh Street,
Kamloops, British Columbia. On that date, Mrs. Henyecz, while driving her 1996
Subaru Outback station wagon, backed down the driveway and struck Ms. Carson,
who was on the driveway. As a result, Ms. Carson suffered injuries, the most
serious injury being an injury to her back. Ms. Carson alleges that her mother
is responsible for the accident for which Ms. Carson seeks damages. This trial
is only to determine liability.

[2]            
The injury to Ms. Carson’s back was an L1 compression fracture to her
spine. After Ms. Carson was struck, she was taken to the hospital immediately
by paramedics, where she remained for twenty days. Within four days of the
accident Ms. Carson was operated on. Titanium rods and a bone graft were inserted
in the area of the injury; the bone coming from Ms. Carson’s left hip.

[3]            
Mrs. Henyecz did not give evidence at this trial as she was unable to do
so as she suffers from Dementia. On August 10, 2010, her doctor, Dr. Kruger,
wrote the following:

RE: SUSAN HENYECZ

…

To Whom It May Concern:

Patient has been diagnosed with
fronto temporal dementia in October 2008. She has significant problems with her
memory and functioning. She will be of very little help in getting information
regarding the accident as she has problems with memory.

[4]            
There is no evidence before me, nor is it alleged, that Mrs. Henyecz’s
dementia played a part in the accident. Ms. Carson gave evidence of certain
characteristics of her mother which may have been the early signs of the
disease. However, Ms. Carson made it clear that this was all as a result of “hindsight”.

[5]            
Those who gave evidence at this trial were Ms. Carson and Mr. Gerald
Sdoutz, an expert called by Ms. Carson. Mrs. Henyecz called two expert rebuttal
witnesses to Mr. Sdoutz’s report, Kirk W. Ising and Alyssa L. DeMarco.

575 Singh Street, Kamloops, British Columbia (the “Property”)

[6]            
In order to understand the events of May 11, 2008 and their
consequences, it is necessary to describe the Property, the neighbourhood where
the Property is located, the driveway, and the location of some of the
buildings and walkways, and some of the vegetation.

[7]            
This evidence comes from the testimony of Ms. Carson, the photographs
that she took, and the photographs taken by her sister-in-law. Some of those
photographs show the 1996 Subaru Outback owned by Mrs. Henyecz. There was no
evidence as to when those photographs were taken.

[8]            
Mr. Sdoutz took photographs which are part of his expert report dated
November 10, 2011, which was entered as evidence and upon which he was
cross-examined. Mr. Sdoutz attended the Property on October 6, 2011,
accompanied by Ms. Carson. He used Ms. Henyecz’s 1996 Subaru Outback for
purposes of giving his opinions.

[9]            
Mr. Ising attached Google Earth photographs which formed part of his
report dated December 19, 2011, and upon which he was cross-examined.

[10]        
Ms. DeMarco produced a photograph of a 1996 Subaru Outback station wagon
like Mrs. Henyecz’s which formed part of her report dated December 19, 2011,
and upon which she was cross-examined.

[11]        
Ms. Carson testified that the Property is much the same as it was at the
time of the accident. The trees, one evergreen and the other a deciduous, located
in the flower and shrub bed paralleling the asphalt driveway, have changed
since the date of the accident. The evergreen tree increased in size, described
by Ms. Carson as “humongous,” and the deciduous tree seen in her’s and her sister-in-law’s
photographs has been removed. Ms. Carson could not recall whether the deciduous
tree’s leaves were out or not. Ms. Carson stated that her mother’s Subaru had
not changed.

[12]        
The location of the Property is in the northern area of the City of
Kamloops. Situated on the Property is a small single-family home located on a
large corner lot. Access to the Property is from Singh Street onto an asphalt
driveway located on the Property that curves to the right passing the northeast
end of the house, ending at a freestanding double garage with a partially
attached outbuilding. The entire driveway is clearly visible from Singh Street
to the garage. Depending on the season, the front of the home is also visible
from Singh Street, despite trees growing close to the south west part of the
house.

[13]        
Entry to the front door of the home can be made from the asphalt
driveway, then onto to the paved walkway which leads to a set of stairs to the
front door. Access to the front door can also be made from Singh Street by cutting
across the lawn located on the Property onto the paved walkway which leads to
the steps and then to the front door.

[14]        
Outside the front door is a paved landing from which five steps descend
to the paved walkway. The paved walkway is parallel to the front of the home
and perpendicular to the asphalt driveway. The paved walkway juts into the
asphalt driveway. The house and walkway are separated by a flower and shrub bed
that is parallel to the front of the house leading to or coming from the front
steps. The same flower and shrub bed extends down the north side of the house
towards the garage stopping at the northeast corner of the house. It is in this
flower and shrub bed where the small evergreen and the deciduous tree are
located, to which I have already referred.

[15]        
The back door is on the east side of the house. The access to it is from
the top part of the asphalt driveway by a brick-coloured tiled patio, which is
perpendicular to the asphalt driveway and abutting it.

[16]        
The only fence on the Property is behind the garage and outbuilding
separating the Property from the Sikh Temple.

Background

[17]        
Mrs. Henyecz was aged 63 at the time of the accident, and she had lived in
the residence located on the Property for between eight to ten years. At the
time of the accident, Mrs. Henyecz was the only person living at the residence
on the Property. She shared her home with a dog and two cats; one of whom was
owned by her daughter.

[18]        
At the time of the accident, Mrs. Henyecz was driving and owned the 1996
Subaru Outback station wagon which she had owned for about two years.

[19]        
Ms. Carson, at the time of the accident, was 35 years of age. She is
single with no dependents. She graduated from high school in Kamloops. She
attended college and university. The courses she took were in the social sciences.
Ms. Carson was employed in Canada, the United States and in England from about
1995 to 2001. Ms. Carson has not been employed since 2001. She returned to live
in Kamloops in 2003.

[20]        
Since 2004, Ms. Carson has received a modest People with Disabilities
allowance. Ms. Carson has health problems: chronic depression; post-traumatic
stress disorder; and a permanent knee injury. Ms. Carson stated that for the
months leading up to the accident she was feeling good. She stated that she had
had difficulties with prescribed medication. Except for medication that she
takes for a thyroid condition, and since the beginning of March of 2008, she is
free from taking prescribed medication.

[21]        
Ms. Carson has mobility problems arising from the permanent injury to
her right knee. As a result, some of the medication she has taken in the past
caused side effects such as a loss of her balance. This cleared up when she
stopped taking the medication. At the time of the accident, she experienced no
memory loss or side effects from medication.

[22]        
Ms. Carson does not run. She cannot move quickly due to her knee and her
weight. She is 5’ 8” and over 250 lbs. Due to her knee, she periodically is
required to use aids to assist in walking.

[23]        
On May 11, 2008, Ms. Carson lived four long blocks from the Property. When
going to Singh Street she will either walk or her mother will pick her up in
her car. Mrs. Henyecz drove Ms. Carson to her doctor’s appointments, for
shopping, and to other places that Ms. Carson needed to go. Ms. Carson
described her contact with her mother as more than once a week and less than
once a day.

[24]        
Ms. Carson has ridden as a passenger in the 1996 Subaru with her mother
driving it. She has ridden as a passenger when her mother has backed down the
driveway on the Property. Ms. Carson has not held a valid driver’s licence
since 2005, though at the time of trial she held a driver’s licence.

Positions

[25]        
Ms. Carson’s position is that a driver backing a motor vehicle down a
driveway must meet a high standard of care, and should back up only when it is
safe to do so, and that driver should be ready for almost any hazard that may
occur.

[26]        
Ms. Carson argues that it was reasonable for her to be on the asphalt
driveway, and that she was there to be seen had Mrs. Henyecz been taking
precautions expected of a reversing driver.

[27]        
Ms. Carson argues that the fact that she stumbled into the driveway is
immaterial and not the cause of the accident.

[28]        
Ms. Carson argues that she was not negligent.

[29]        
The defence argues that Ms. Carson has the onus of proving that Mrs.
Henyecz caused or contributed to the accident, and that negligence is not
presumed because an accident occurred. It is not for Mrs. Henyecz to prove how
the accident occurred.

[30]        
Mrs. Henyecz alleges that the credibility of Ms. Carson should be
considered as she is an interested witness.

[31]        
Mrs. Henyecz argues that Ms. Carson was negligent.

The Accident

[32]        
Leading up to the Mother’s Day weekend, Ms. Carson was staying in the
home on the Property as her mother was away for three or four days. Mrs.
Henyecz returned home on Saturday and Ms. Carson stayed over on Saturday night.

[33]        
Mrs. Henyecz always parked her vehicle outside on the asphalt driveway
in front of the garage door closest to the house, and ahead of the patio/walkway
that led to the back door of the house. This area was located and shown in the
pictures as there are obvious oil stains where the car was regularly parked.

[34]        
Mrs. Henyecz got up in the morning of May 11, 2008. Her plans, which
were known to Ms. Carson, were to go grocery shopping, travel to the airport to
pick up her son and daughter-in-law who were returning from Japan, and attend a
Mother’s Day dinner with her son and his wife’s parents, who are the owners of
the Property. Ms. Carson was not to be involved in any of these activities.

[35]        
Mrs. Henyecz left the home on the Property. Unexpectedly, Mrs. Henyecz
returned home and at that time Ms. Carson was in the washroom. Ms. Carson could
hear her mother talking to the dog.

[36]        
Ms. Carson came out of the washroom. Mrs. Henyecz handed Ms. Carson her
dinner; Chinese food. Ms. Carson testified that her mother appeared anxious.
Ms. Carson went back into the washroom and in coming out of the washroom, her
mother was at the door talking to the dog again. Ms. Carson asked her mother
whether she would like her to call the airport to determine whether the plane was
on time. Mrs. Henyecz left and it was obvious to Ms. Carson that Mrs. Henyecz
had not heard her.

[37]        
When Mrs. Henyecz came back from grocery shopping, and on this
particular day, Mrs. Henyecz did not park in her regular spot, but rather a few
metres back, but still in line with the garage closest to the house and close
to the patio/walkway to the back door of the house.

[38]        
Ms. Carson picked up a banana and a pair of scissors. She intended to
cut the split ends of her hair as the living room was sunny and she could see
the split ends. Ms. Carson looked out the kitchen window and noticed her mother
and the car were still there. Ms. Carson proceeded to the living room and
looked out the dining room window. Her mother and the car were still there. With
the dog, Ms. Carson sat on the couch. As she sat there, Ms. Carson mulled over
whether she should go outside, stop her mother, and ask her mother whether she
wanted her to call the airport. Ms. Carson decided to go outside by way of the
front door of the home to check and see why her mother had not left and to
speak to her mother about telephoning the airport.

[39]        
Ms. Carson proceeded out the front door and down the front steps. She
testified that she took one step at a time. She stated that she was not in a
hurry and that she dawdled. She was clad in bright blue sleepwear and was
barefoot. She was still holding the banana and the scissors. She stated that
she did not recall whether she was wearing her glasses. She testified that if
she is not wearing her glasses she would be wearing contact lenses, and she is
never without them except sometimes at night while she is sleeping.

[40]        
Ms. Carson testified that she proceeded along the front paved walkway
looking down at her feet. She passed the corner of the house and she had
reached the end of the walkway. She stopped and looked up; the Subaru had not
moved; and the tail and brake lights had not lit up. She observed her mother
turn her head to the right and she thought that her mother did a shoulder check
and her mother had seen her. Suddenly, her right foot went into the flower and shrub
bed (that part of the bed that goes along the side of the house paralleling the
asphalt driveway). Ms. Carson said that the soil was fresh and soft and not the
way it is depicted in the photographs. Ms. Carson then stumbled forward bent at
the waist into the middle of the asphalt driveway. Ms. Carson testified that
she was at the end of the paved walkway when she stumbled. As she was moving
forward, she did not see the Subaru moving backward. She regained her balanced.
She testified that at no time did she fall on the driveway or partially fall on
the driveway. She saw the Subaru and started to turn to her left and the Subaru
hit her. Ms. Carson recalls that she was screaming.

[41]        
Ms. Carson testified that she did not see what part of the back of the
Subaru hit her. She speculated that it was where it displays the name Subaru.

[42]        
Ms. Carson testified that the Subaru hit her on the right side of her
back and pushed her toward Singh Street where she landed facing Singh Street
with her head closest to the house. She stated she was in a fetal position. A
portion of the Subaru was over her; she did not know how much. Her mother moved
the Subaru.

[43]        
Ms. Carson testified that her mother was very upset. Ms. Carson stated
that her mother asked her what she should do. Ms. Carson told her mother to
call the paramedics. Her mother came back to Ms. Carson and asked her for the telephone
number.

[44]        
A neighbour, accompanied by a child, came to Ms. Carson’s aid. Ms.
Carson recalls being very concerned that the scissors that had been thrown out
of her hand and lay on the ground would be stepped on by the child.

The Law

Driving In Reverse

[45]        
Under the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA],
s. 193 requires:

Caution in backing vehicle

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

[46]        
The common law has a similar view.

[47]        
Ms. Carson refers to four cases decided in British Columbia which
consider s. 193 of the MVA. This section was previously known as s. 194.

Ireland v. Yun, [1987] B.C.J. No. 653;
Dechev v. Judas, 2004 BCSC 1564;
Rinta v. Vanderbasch, [1996] B.C.J. No. 2834;
Leung v. Tham, [1999] B.C.J. No. 119

[48]        
In Ireland, Mr. Justice Tyrwhitt-Drake, in assessing s. 194,
concluded that liability on a reversing driver “is very close to absolute.”

[49]        
This view was somewhat softened in Dechev, when Boyd J. stated:

[21] I am not persuaded that s. 193 of the Motor
Vehicle Act may be so narrowly interpreted as it was in Ireland, supra. …

[22] I agree with defence
counsel that neither the provisions of the Motor Vehicle Act, nor the law
generally require perfection on the part of the defendant. The defendant is
"not bound to guard against every conceivable eventuality but only against
such eventualities as a reasonable man ought to foresee as being within the
ordinary range of human experience." (see O’Brien (Next Friend of) v.
Mrakic, [1983] B.C.J. No. 521 (B.C.S.C.)).

[50]        
In Rinta, Lambert J.A. for the Court of Appeal stated:

[3] The trial judge concluded that Ms. Rinta did not
take proper care for her own safety. He dealt with the question of whether the
driver was negligent and in that consideration he looked at s. 194 of the Motor
Vehicle Act, which reads in this way:

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

[4] The trial judge
considered all the facts that I have described. He decided that s. 194 does not
impose an absolute liability on the driver who is backing up and with that I
agree. It imposes a high standard of care and the conduct of a driver backing
up, as this defendant was, must be considered in relation to that standard.

[51]        
In Leung, Paris J. stated as it relates to s. 193:

[12] The authorities say
that the latter section (and, it seems to me, common sense) impose a high
standard of care on a driver backing up …

[52]        
Mrs. Henyecz argues that s. 179(1) and (2) of the MVA is law that
should be considered when assessing whether Ms. Carson is negligent or not.
Section 179(1) and (2) reads:

179 (1) Subject to section 180, the driver of a vehicle must
yield the right of way to a pedestrian where traffic control signals are not in
place or not in operation when the pedestrian is crossing the highway in a
crosswalk and the pedestrian is on the half of the highway on which the vehicle
is travelling, or is approaching so closely from the other half of the highway
that he or she is in danger.

(2) A pedestrian must not leave a
curb or other place of safety and walk or run into the path of a vehicle that
is so close it is impracticable for the driver to yield the right of way.

[53]        
Ms. Henyecz relies on the following cases:

Christensen (Litgation Guardian of) v. Gerber, 2007
BCSC 1397;
Embury v. Vanderryst, [1997] B.C.J. No. 1427

[54]        
In Christensen, the Court was required to determine the facts
that led to the collision of a motorist and a child who had crossed a public
road, not in a crosswalk marked or otherwise.

[55]        
Embury was a case of a drunk pedestrian struck by a motorist at
night. The issue was whether the motorist had kept an adequate lookout for the
plaintiff who did not have the right of way upon crossing the street.

[56]        
The law in this case relates to a reversing driver under s. 193, not a
pedestrian crossing a “highway”. As concluded in Christensen and Embury
when a pedestrian ventures out onto a street and does not have the right of way,
the “onus rests on the pedestrian to show on a balance of probabilities that
the defendant driver had a reasonable opportunity to avoid hitting him or her.”

[57]        
This is an asphalt driveway on private property and is not a highway as
defined in the MVA or the Transportation Act, S.B.C. 2004, c. 44.
Section 179 is found in Part 3 of the MVA. Section 120 states that, unless the
context otherwise requires, that part of the MVA applies to pedestrians
on highways. I have concluded that s. 179 of the MVA has no application.

[58]        
Further, s. 179 contemplates a motorist who is driving forward and not
in reverse.

The Issues

[59]        
The issues are:

1)    Did Mrs. Henyecz
owe Ms. Carson a duty of care?

2)   
Did Mrs. Henyecz breach her duty of care to Ms. Carson when she backed
her 1996 Subaru down the driveway and hit Ms. Carson?

[60]        
Mrs. Henyecz acknowledged that she owed Ms. Carson a duty of care.

[61]        
The burden is on Ms. Carson to establish on a balance of probabilities
that Mrs. Henyecz was negligent and her negligence caused Ms. Carson’s
injuries.

Expert Witnesses

Mr. Gerald D. Sdoutz

[62]        
Mr. Sdoutz gave evidence on behalf of Ms. Carson. He was qualified as a
professional mechanical engineer – accident reconstructionist.

[63]        
He attended the Property on October 6, 2011 with Ms. Carson. The 1996
Subaru was there in order to determine the place it was parked before its
impact with Ms. Carson, and to determine visibility on the driveway from inside
the vehicle.

[64]        
Mr. Sdoutz was instructed to inspect the Property and the 1996 Subaru
and to give his opinion on whether Ms. Carson was stumbling or stationary when
hit by the Subaru. He was asked to give time estimates for the Subaru to
reverse from its parked position on the asphalt driveway to the approximate point
where Ms. Carson was hit. His opinion was sought as to whether where Ms. Carson
was standing at the point of impact that she would have been visible to Mrs.
Henyecz from the side mirrors, the rear-view mirror of the Subaru and through
the Subaru’s rear window.

[65]        
Mr. Sdoutz assumed that while Ms. Carson was walking along the walkway
in front of the house and into the driveway that she took a misstep into the
flower and shrub bed and stumbled into the driveway. He assumed that Ms. Carson
was struck from behind and on her right side by the rear of the Subaru,
suffering a wedge compression fracture of the L1 in her back.

[66]        
Based on information provided to Mr. Sdoutz by Ms. Carson, Mr. Sdoutz
concluded that depending on the Subaru’s initial parking position, the Subaru
reversed 15 to 19 metres (approximately 50 to 60 feet) before hitting Ms.
Carson.

[67]        
Mr. Sdoutz concluded that had Ms. Carson been still stumbling upon
impact, she would have been hit on her right side, suffering injuries, not only
to her torso, but to her head and would have been run over.

[68]        
Mr. Sdoutz concludes that Mrs. Henyecz, in travelling the distance; that
is, 15 to 19 metres, was accelerating at a constant rate of speed and was
travelling at rates of 19 to 22 kilometres per hour from its parked position to
the approximate point of impact. He concluded:

The time required to reverse over
the distance range, is equally dependent on the acceleration rate as the impact
speed is. To achieve an impact speed of 19 to 22 km/h at an acceleration rate
of 0.1G’s the Subaru would have required about 6 seconds (5.5 to 6.2 seconds).
To achieve an impact speed of 28 to 31 km/h the Subaru would have required
about 4 seconds (3.9 to 4.4 seconds). It should be noted that the latter higher
impact speeds, in the undersigned’s experience, are more likely to cause
fractures in a struck pedestrian.

Mr. Kurt W. Ising and Ms. Alyssa L. DeMarco

[69]        
Both Mr. Ising and Ms. DeMarco provided rebuttal reports to that of Mr.
Sdoutz. Neither Mr. Ising nor Ms. DeMarco attended the Property nor met with
Ms. Carson. Mr. Ising is an engineer and holds a Master’s of Applied Science in
Aerospace Science and Engineering. He is an accident reconstructionist. Mr.
Ising disagrees with Mr. Sdoutz’s conclusion as it relates to the speed that
Mrs. Henyecz travelled down the driveway as they were not reversing speeds, nor
the assumption that Mrs. Henyecz would have been accelerating as she drove down
the driveway.

[70]        
Mr. Ising points out that had Mrs. Henyecz continued accelerating, the
Subaru would have been travelling at rates of 29 to 43 kilometres per hour when
it reached the end of the asphalt driveway. Mr. Ising states that this is “clearly
unrealistic”. Rather, Mr. Ising relies on data presented in the literature
based on observations of reversing drivers.

[71]        
Mr. Ising concludes, based on the literature, that Mrs. Henyecz, given
her age and gender, would be backing up at 2.7 kilometres per hour, and that
older people back up more slowly than younger people; males faster than
females.

[72]        
In conclusion, Mr. Ising states:

In summary, all the reviewed literature associated with
observation of reversing drivers suggests that Ms. Henyecz’s speed would likely
have been significantly lower than that determined by Mr. Sdoutz.

…

Based on the rearward
acceleration Mr. Sdoutz has assumed, he calculated that the vehicle took 3.9 to
6.2 seconds to reach the point of impact. However, based on more realistic
reversing speeds I described above, the reversing time would be significantly
longer – likely at least double the time calculated by Mr. Sdoutz.

[73]        
Mr. Ising does not disagree with Mr. Sdoutz’s conclusion about Mrs.
Henyecz’s visibility of Ms. Carson subject to findings as to where Ms. Carson
was standing as Mrs. Henyecz reversed. Mr. Ising gave an opinion, based on the
literature, as to the walking speeds of females in Ms. Carson’s approximate
age. Mr. Ising calculated the walking speed of a female of about Ms. Carson’s
age. He concludes that the 3.9 to 6.2 seconds, Mr. Sdoutz’s calculated
reversing time, Ms. Carson would have travelled about 6.4 to 10.2 metres,
placing her in the vicinity of the front steps and well out of the view of Mrs.
Henyecz’s parked position. He concludes:

If Ms. Henyecz was reversing at a
more typical speed, then she likely began backing up before Ms. Carson began
walking down the concrete path.

[74]        
However, Mr. Ising assumes in his report that as Mrs. Henyecz was
backing her 1996 Subaru down the driveway, Ms. Carson was leaving the front
door of the house and walking down the paved walkway toward the asphalt driveway.

[75]        
Ms. DeMarco was qualified to give evidence as a biomechanical engineer.
This is the study of forces on the human body.

[76]        
In reviewing the medical evidence, three medical imaging reports and a
report of operation from Royal Inland Hospital, Ms. DeMarco concluded that Ms.
Carson suffered an L1 compression fracture.

[77]        
Ms. DeMarco concluded that, based on Ms. Carson being hit as a
pedestrian by a 1996 Legacy Outback station wagon, the axial load would have
likely been applied through her buttocks in a “buttocks-to-head direction bias
to the right”. She concludes that Ms. Carson could have been in two postures:
the first being hands and knees crawling position; and the second, standing
“bent forward at the waist such that her upper torso was about 90 degrees to
her leg.” In these postures, Ms. DeMarco concludes that Ms. Carson would be aligned
with the driveway facing Singh Street away from the Subaru with the left side
of her body closest to the house. She concludes, in taking measurements of a
Subaru like the one owned by Mrs. Henyecz, that had Ms. Carson been on her
hands and knees, her buttocks would have been at the height of the bumper. Had
she been bent forward, her buttocks would have been at the licence plate and
her knees at the height of the bumper. She concludes the following:

1)     Mr.
Sdoutz’s assumption of a wedge compression fracture does not consider the
diagnosed posterior fractures to Ms. Carson’s L1 vertebra.

2)     The injury
mechanism for Ms. Carson’s fracture is an axial load directed along the long
axis of the spine in a buttocks-to-head direction, biased to the right.

3)     Ms.
Carson’s injuries are not consistent with being run over.

4)     Being
struck by the Subaru on the buttocks while in a hands and knees posture
provides a mechanism for Ms. Carson’s L1 compression fracture. In this posture,
Ms. Carson could have been stationary or actively turning to the left.

5)    
Being struck by the Subaru on the buttocks while in a bent forward
posture provides a mechanism for Ms. Carson’s L1 compression fracture. In this posture,
Ms. Carson could have been stationary, actively turning to the left or
stumbling forward.

[78]        
In cross-examination, Ms. DeMarco was asked whether the injury Ms.
Carson suffered is consistent with Ms. Carson stumbling onto the driveway,
regaining her balance, seeing the vehicle reversing down the driveway, turning
away to her left, bent forward, and then being struck by the Subaru. To this
Ms. DeMarco answered “Yes”.

Discussion

[79]        
There is no dispute as to the date, time and place of the accident, that
it was a sunny day, the vehicle involved in the accident was a 1996 Subaru
Outback, and that it was driven by Mrs. Henyecz when Ms. Carson was hit.

[80]        
Mrs. Henyecz had lived in the home located on the Property of which she
was familiar for between eight to ten years. As a rule, family members entered
the home by the back door. Neighbours, friends, and canvassers came to the
front door.

[81]        
There were pets in Mrs. Henyecz’s household who were let out from time
to time to roam at large. There were no fences to contain them or keep other
animals out. Singh Street is not a busy city street. In fact, it has a dead end
which leads to a waterway to which people walk. Across the street from the
Property, there are multi-family dwellings in which families live with
children. There is a school close by, children play and ride their bicycles in Singh
Street, and canvassers come to the front door of the house. Ms. Carson
testified that people and animals cut through the Property. A variety of sports
are played on the grounds of the school which is nearby. A sign on Singh Street
warns motorists of the existence of the school.

[82]        
I conclude that on the day of the accident, Mrs. Henyecz appeared
anxious to Ms. Carson so Ms. Carson offered to call the airport to determine
whether her brother and sister-in-law’s flight was on time. It does not matter
that Ms. Carson did not appreciate the flight was a local flight and not an
International flight.

[83]        
Ms. Carson mulled over whether she would go out and ask her mother
whether her mother wanted her to make some inquiries as to the time of the
flight. During this time, she looked out two different windows of the home and
noticed her mother’s vehicle had not moved, and she wondered why she had not
moved.

[84]        
She picked up a banana and scissors, sat on the couch, and then went out
the front door to speak to her mother. I accept that Ms. Carson was not in a
hurry as she walked down the walkway in front of the house. Ms. Carson cleared
the front and corner of the house and was at the asphalt driveway. I accept
that when she looked up the driveway the 1996 Subaru was visible and had not
moved, and that there were no back up lights or brake lights illuminated. I
find that Mrs. Henyecz had not started her reverse. I find it was not the
intention of Ms. Carson to walk out onto the asphalt driveway.

[85]        
I conclude that as Mrs. Henyecz reversed down the driveway in her 1996
Subaru, she encountered no visibility problems as it relates to the evergreen
and deciduous trees located in the flower and shrub bed.

[86]        
I conclude that Ms. Carson suddenly put her foot in the soft soil of the
flower and shrub bed and stumbled forward into the middle of the single-lane
driveway directly across from the paved walkway. Ms. Carson’s toe was cut and
it is likely that this occurred when she stepped into the flower bed, or
occurred when she stumbled into the driveway.

[87]        
I conclude that Ms. Carson did not fall, she regained her balance and
was in an upright or almost upright position. I find that, upon Ms. Carson
seeing the Subaru, she turned left to get away from the Subaru and was struck
on the buttocks, and fell to the driveway with some portion of the Subaru over
her. The Subaru’s tires did not hit her. Her major injury is that of an L1
compression fracture of her spine.

[88]        
From the time Mrs. Henyecz left her home for the second time to travel
to the airport to the time of the accident, two to five minutes went by. The
events that I have described above, particularly Ms. Carson looking up and
seeing her mother had not moved, and stumbling, took a few seconds.

[89]        
I find the Subaru was parked 15 to 19 metres from where Ms. Carson was
hit.

[90]        
Mr. Sdoutz’s analysis as to the speed the Subaru travelled is not
supportable. Mr. Ising’s estimation of Mrs. Henyecz’s speed reversing down the
driveway based on the literature for reversing drivers such as Mrs. Henyecz is
realistic.

[91]        
Mr. Ising’s conclusion that Ms. Henyecz was driving down the driveway as
Ms. Carson started down the walkway is simply not supported on the evidence that
I have accepted.

[92]        
Ms. DeMarco’s conclusion as to the nature of the force; that is the
vehicle hitting Ms. Carson’s buttocks is supportable on the evidence. Ms.
DeMarco acknowledged in cross-examination that Ms. Carson stumbling onto the
driveway, regaining her balance, stopped, noting that the Subaru was backing
down the driveway, Ms. Carson turning away from the vehicle and bending
forward, is also consistent with the injury she suffered. I find that there is
also no evidence that Ms. Carson was on her hands and knees when she was struck
by the Subaru.

[93]        
I also conclude that Mr. Sdoutz’s conclusion of a wedge fracture is not
correct and was mentioned only as a possible outcome in one imaging report. All
the other medical evidence that Ms. DeMarco had before her, including the
surgeon’s report, was that of an L1 compression fracture.

[94]        
I have also concluded that Ms. Carson could have been seen from both the
parked 15 metre and 19 metre positions by Mrs. Henyecz through the driver’s
side mirrors, rear-view mirror and by turning her head and body to the rear
between the two bucket seats of the Subaru and looking through the rear window.
I also conclude that in either the 15 or 19 metre position that Mrs. Henyecz
would not have seen Ms. Carson in the passenger side mirror.

[95]        
The asphalt driveway is relatively long, despite the curve to the
driveway, that curve did not interfere with the vision from Singh Street or
from where the Subaru was parked to Singh Street.

[96]        
It cannot be said that Mrs. Henyecz expected Ms. Carson to stumble out
from the walkway on to the driveway. Nor can it be said that Mrs. Henyecz
expected Ms. Carson to leave the front door and speak with her.

[97]        
I also conclude that Ms. Carson observed her mother turn her head to the
right. I cannot conclude that Mrs. Henyecz was looking behind her, or that Mrs.
Henyecz and Ms. Carson, by their body language, communicated with each other.

[98]        
Section 193 of the MVA imposes a high standard of care on a
driver while reversing and “… must not in any event or at any place cause a
vehicle to move backwards unless the movement can be made in safety.”

[99]        
The duty imposed on a reversing driver is not just when the driver
starts to reverse, but throughout the entire reversing procedure and to its
completion. The object is to be aware as reasonably possible to what is behind
the driver and in the driver’s path while in reverse.

[100]    
In cross-examination, Mr. Ising agreed that these words described the
precautions a reversing driver should take:

Adjust your position so you’re turned to the right and
looking over your right shoulder through the rear window.

Back up slowly, keeping the
wheels as straight as you can. Keep looking where you want to go, checking your
front view occasionally.

This is common sense.

[101]     Looking at
the photographs of the asphalt driveway (no measurements were taken as to its
width or length), the Subaru struck Ms. Carson in the lower part of the upper half
of the driveway. Mrs. Henyecz had an obligation throughout this entire
manoeuvre; that is reversing down this long driveway, to be aware of what was
behind her. Her obligation was to place her body in such a position that she
would observe out of the rear-view window, her driver’s rear-view mirror and
driver’s side mirror, the asphalt driveway until such a time that she would
reach Singh Street, enter Singh Street, and then change direction.

[102]     I infer
from all of the evidence that Ms. Carson was visible before she stumbled and she
certainly was visible when she stumbled onto the asphalt driveway. From all of
the evidence that is before me, I conclude that as Mrs. Henyecz commenced
reversing the Subaru down the asphalt driveway, she took no steps to determine
whether she could reverse the Subaru down the driveway in safety.

[103]     I conclude
that had Mrs. Henyecz taken the precautions as she started her reversal and
continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen
her daughter both before and after her daughter stumbled into the asphalt
driveway.

[104]     I find
that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make
all the observations that she could perform as she reversed down the asphalt driveway.
Ms. Carson was out on the driveway to be seen.

[105]     I conclude
that Mrs. Henyecz was not driving at an excessive speed. The speed of the
vehicle is not the issue here.

[106]     Mrs.
Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms.
Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the
accident. The cause of the accident is the failure of Mrs. Henyecz to position
herself and make observations in such a way that as she reversed she was aware
of what was on the asphalt driveway.

[107]    
The defence made reference to Rinta and the facts of that case.
Counsel for Mrs. Henyecz suggested that these facts gave the driver a great
deal more warning compared to the facts in this case. However, in the appeal
court it is not the facts that are being appealed, it is as Mr. Justice Lambert
said:

[8] … The Supreme Court
of Canada said that it was improper for this court to interfere with a finding
of negligence or no negligence made by a trial judge unless there was an error
in law, or it was clear that some evidence had not been understood or had been
ignored. …

[108]     I have
already concluded in my analysis of the law that this is not a situation where
a pedestrian must not leave the curb or a place of safety and walk or run into
the path of a vehicle so that it is impracticable for the driver to yield the
right-of-way. If s. 179 of the MVA applied to private property, I
conclude that it is not relevant as under s. 179 the driver of the motor
vehicle is driving forward and not in reverse.

[109]     I conclude
that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she
reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find
Mrs. Henyecz is 100% responsible for the accident.

Costs

[110]    
Ms. Carson will have her costs at Appendix B, Scale B of the Supreme
Court Civil Rules.

‘H.C. Hyslop J.”

HYSLOP J.