IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130308

Docket: S023092

Registry:
Chilliwack

Between:

Henry John Mayne

Plaintiff

And

Marion Hilda Mayne

Defendant

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
This is a summary trial proceeding to determine liability in an action
for damages arising out of the alleged negligence of Mrs. Mayne. Mr. Mayne’s
action in negligence against his spouse, Mrs. Mayne, stems from a motor vehicle
accident that occurred on September 24, 2010, when Mrs. Mayne took control of
the parties’ vehicle, struck Mr. Mayne, and caused serious injury to his leg.
Neither party objected to the matter being heard as a summary trial as the
material facts are not seriously in dispute.

[2]            
The issue is whether the actions of Mrs. Mayne, in all of the
circumstances, were negligent. There is no dispute that she owed Mr. Mayne a
duty of care. If Mrs. Mayne is found liable, this Court must also determine if
Mr. Mayne contributed to the accident such that liability should be apportioned
pursuant to ss. 1 and 2 of the Negligence Act, R.S.B.C. 1996,
c. 333.

FACTS

[3]            
Mr. Mayne was 85 years old when the accident occurred; his wife was 81
years old. The parties resided in a seniors’ community in Chilliwack that
consisted of rows of townhouses connected by quieted roadways (containing speed
bumps) within the gates of the community. All of the roads within the community
are private; access is only permitted to residents and their guests. The speed
limit on the roads within the community is 15 km/h. The roadway where the
parties’ townhouse is situated is straight, flat and paved. Traffic along this
roadway is infrequent.

[4]            
There are townhouses on each side of the parties’ roadway. Each of the
townhouses has an attached garage with a paved drive leading from the roadway
to the garage entrance. The parties’ driveway is 7 feet, 11 inches long and
joins the roadway via a small curb at its foot. The roadway is 21 feet, 3
inches wide from curb to curb. Directly across from the parties’ driveway is
the front lawn and hedge of the townhouse situated on the other side of the
roadway. The parties’ driveway has a very slight downward slope from the garage
entrance.

[5]            
The parties own a 2002 Buick with an automatic transmission. The gear
shift is located on the steering column. Park is at the top of the column,
reverse and neutral are mid-way down, and drive 1 and 2 are at the bottom of
the column. The emergency brake is a foot pedal on the left side of the gas
pedal on the far left of the driver’s foot well. Both the parties regularly
drive the Buick and it was in good repair at the time of the accident.

[6]            
At around noon on September 24, 2010, the parties left their townhouse
to drive to Abbotsford. They exited their residence through the garage door and
entered the Buick. Mr. Mayne was going to drive and Mrs. Mayne sat in the front
passenger seat and put on her seatbelt. Mr. Mayne backed the Buick out of the
garage and stopped at the point where the hood was half in the garage and half
out. The rear wheels of the Buick protruded onto the roadway less than a foot.
Mrs. Mayne asked her husband to return to the residence to get the mail key as
she wanted to check the mail before going to Abbotsford. Mr. Mayne left the
Buick and, although he thought he had put the gear shift into park, the vehicle
was left in neutral with the engine running. When Mr. Mayne closed the door of
the Buick it remained stationary notwithstanding the emergency brake was off.
It took Mr. Mayne a few seconds to jog into the residence through the garage
door and fetch the mail key that was kept close to the door for easy access.
When Mr. Mayne came back into the garage he could not see the Buick because
some cabinets obstructed his view. Once he walked past the cabinets he saw the
Buick speeding towards him and could not react quickly enough to get out of its
way. The Buick pinned him near the back wall of the garage and struck his left
leg. Mrs. Mayne stopped the vehicle and immediately called an ambulance.

[7]            
Mr. Mayne did not see the Buick roll backwards; however, a few seconds
after he left the vehicle, and while Mrs. Mayne sat in the passenger seat, the
Buick began to roll backward into the roadway. She became very concerned that
the Buick would strike the house across the street and do serious damage. She
could not get out of her seat quickly because the seatbelt and the console that
separated the passenger seat from the driver’s seat made it difficult for her
to climb into the driver’s seat. As a consequence, Mrs. Mayne reached over her
left shoulder with her right arm and used her right hand to move the gear shift
into park. Unfortunately, she moved the Buick into drive and it lurched forward
and pinned Mr. Mayne to the back wall of the garage. She frantically removed
her seatbelt, climbed into the driver’s seat and put on the brake. Mrs. Mayne
deposed that she acted in the heat of the moment due to the imminent danger she
perceived to the neighbour’s home.

VIDEO EVIDENCE

[8]            
Mr. Mayne prepared two short video presentations depicting the Buick
rolling backwards out of the driveway and onto the roadway to show what would
have happened had Mrs. Mayne taken no steps to move the Buick into park. The
video presentations also show the pace at which the vehicle would have rolled
backwards. There is no evidence that the video enactments are inaccurate. The
weather and road conditions were the same as on the day of the accident.
Nothing had changed regarding the physical surroundings. Mr. Mayne deposed that
he placed the Buick in the same position as it was on the day of the accident
when he left it to obtain the mail key. Mrs. Mayne deposed that she did not
know the precise place where the Buick was left but agreed that the location
chosen by her husband is correct to the best of her recollection. Mr. Mayne sat
in the driver’s seat and put the gear shift into neutral; he then let the Buick
roll backwards. It rolled very slowly into the roadway and came to a momentary
stop at the curb on the other side of the road. The Buick then rolled forward due
to the momentum from the curb stop and rolled into the curb on the other side
of the road at the driveway to the parties’ townhouse. There it stopped and
remained stationary.

[9]            
Mr. Mayne argues the video presentations are admissible because they are
relevant, accurate, and a fair reconstruction of what would have happened had
Mrs. Mayne not taken control of the Buick. He argues the probative value of the
video presentation outweighs any prejudice to Mrs. Mayne: R. v. Walizadah,
2007 ONCA 528 at para. 38; and R. v. Skeete, 2012 ONSC 1215 at
para. 17.

[10]        
Mrs. Mayne argues the video evidence is not relevant, should have been
filed as expert evidence, and is impermissible hindsight reasoning: Davidson
v. British Columbia (1995), 11 B.C.L.R. (3d) 192 at para. 24 (S.C.); and
Lewis Klar, Remedies in Tort, Release 5, Vol. 2 (Toronto: Carswell,
2012) at 16.I-140.33. Mrs. Mayne also argues that the video presentation does
not depict the circumstances she found herself in and, in particular, the
emergency she perceived.

[11]        
The authorities relied upon by Mr. Mayne indicate that the admissibility
of this type of evidence depends on whether its probative value outweighs any
prejudice to the other party. In balancing probative value and prejudicial
impact, the court should consider the video’s accuracy, fairness and whether
what the video portrays can be verified under oath: Skeete at para. 17
and Walizadah at para. 38.

[12]        
In this case, there are no inaccuracies apparent in the video
presentation. While counsel for Mrs. Mayne speculated that there may be
differences in the condition of the vehicle from the date of the accident,
there was no evidence to support his assertions. While the video does not
attempt to recreate what Mrs. Mayne did in response to the emergency she
perceived, it does show the speed at which it is probable that the Buick rolled
backward. While it is somewhat prejudicial, as it suggests in hindsight Mrs.
Mayne should not have panicked from the possibility of property damage to the
neighbour’s home, its probative value with regard to the likely speed of the
backward movement of the Buick is significant and outweighs this prejudice.
This is a judge alone trial. Thus there is no risk that a jury will place
greater weight on the video presentations than is warranted in the
circumstances. Based on these considerations, I find the evidence is
admissible.

ARGUMENT

[13]        
Mr. Mayne argues that Mrs. Mayne’s actions in attempting to control the
Buick, and putting it in drive rather than park, constitute negligence. As he
has raised a prima facie case of negligence, the onus shifts to Mrs.
Mayne to establish that she was not negligent or that Mr. Mayne was partly at
fault.

[14]        
Mr. Mayne argues that the standard of care of a reasonable person is
applicable to Mrs. Mayne’s actions and she has failed to prove that a lower
standard of care applies. The only circumstance that might excuse her conduct
is if she was faced with “the agony of a collision”; that is, a person who
finds themselves in an emergency situation and has insufficient time to react
is not held to a standard of perfection.

[15]        
Mr. Mayne says that the fundamental factor in this defence is that the
person cannot be expected to respond without error to an urgent, fast moving,
unexpected and dangerous circumstance. The authorities applying this doctrine
require that there be proof of urgency and limited choice: Comeau v. Doucet
(1980), 32 N.B.R. (2d) 145 at para. 18 (C.A.); LaPlante v. LaPlante
(1992), 93 D.L.R. (4th) 249 (B.C.S.C.); and Noble et al v. Beroud and Hogan (1985),
37 Man.R. (2d) 313 at paras. 20-21 (Q.B.), aff’d (1986), 42 Man.R. (2d) 25
(C.A.).

[16]        
Mr. Mayne argues that Mrs. Mayne has failed to prove there was any real
emergency that required her to react as she did. She was not faced with an
urgent, fast paced and dangerous situation. Mrs. Mayne offered no evidence as
to how fast the Buick was rolling and did not present any evidence as to how
far away the neighbour’s house was from the roadway. There is no evidence of
how quickly she reacted to the situation. There is no evidence of how she
mistakenly placed the vehicle in drive. In short, while Mrs. Mayne says she
reacted in the “heat of the moment” there is no evidence of what made the
circumstances an emergency.

[17]        
Mr. Mayne argues that the photographic evidence and the video
presentations show that the pitch of the driveway has only a slight incline
and, as a consequence, the Buick would have rolled only very slowly down it.
There is no evidence of pedestrians in the area at the time. Mr. Mayne argues
that Mrs. Mayne panicked and overreacted to the situation thereby causing him
significant damage.

[18]        
The defence argues that Mrs. Mayne was a rescuer and thus subject to a
less stringent standard of care. Mr. Mayne argues this doctrine does not apply
because this doctrine only addresses a case where the plaintiff sues for
damages arising out of their attempt to rescue another.

[19]        
Lastly, Mr. Mayne argues that if he is found partly liable for the
accident because of the failure to engage the emergency brake, his liability is
only minor and should not amount to greater than 10%.

[20]        
Mrs. Mayne argues that Mr. Mayne is 100% liable for the accident and
that any mistake she may have made was excusable because she was responding to
an emergency and had no time to react. Mrs. Mayne argues that Mr. Mayne
violated the standard of care by failing to place the vehicle in park and
engage the emergency brake when he left the vehicle with the engine running. He
was also in violation of the parking regulations found in the Motor Vehicle
Act, R.S.B.C. 1996, c. 318, ss. 191(2), 190, 189(1)(b). See also Noble
(Guardian ad litem of) v. Bhumber (1996), 20 B.C.L.R. (3d) 244 (C.A.); and Toy
v. Argenti (1979), 17 B.C.L.R. 365 (S.C.). Because the accident would not
have happened if he had placed the vehicle in park, Mr. Mayne is liable.

[21]        
Mrs. Mayne argues that she was not negligent in all of the
circumstances. It was reasonably foreseeable that she would take steps to stop
the Buick from rolling backward. She was immediately concerned that the vehicle
would damage the house across the street. She was alone in a rolling vehicle
without a driver. She was strapped into the passenger seat and had little time
to react to the dangerous situation caused by Mr. Mayne.

[22]        
Mrs. Mayne argues she was a rescuer attempting to prevent property
damage. As a rescuer, mistakes are forgiven because the person is responding to
an emergency to their best abilities. Further, she argues the following facts
lessen the standard of care applicable to her in the circumstances: (1) she
is 81 years old and her reaction times have slowed down and her judgment has
declined; (2) she was in a seatbelt and is right hand dominant making it
difficult to reach over her left arm to change gears; (3) she could not
access the brake from the passenger seat; (4) there was no advance notice
that the Buick was in neutral; (5) there was no time to think and this was
the first time she had been presented with such a situation; and (6) she
was in a state of panic and the vehicle advanced forward rapidly because it
idles high and the entire scenario took seconds.

[23]        
In addition, Mrs. Mayne argues she acted in the agony of the moment and
in such circumstances one cannot be expected to act with perfection: Buksh
v. Franco, 1995 CarswellBC 2214 at paras. 22 -27 (S.C.); Corothers
v. Slobodian, [1975] 2 S.C.R. 633 at 648; and Horsley v. MacLaren, [1972]
S.C.R. 441 at 450-451; and Comeau at para. 18.

[24]        
If this Court finds that Mrs. Mayne is liable in negligence, she submits
that liability should be apportioned 90% to Mr. Mayne: Aberdeen v. Langley
(Township), 2007 BCSC 993 at paras. 54-67, rev’d in part 2008 BCCA 420.

DECISION

[25]        
Mrs. Mayne’s liability for the damages caused to Mr. Mayne depends upon
whether she can properly be regarded as negligent in her attempt to stop the
Buick from rolling down the driveway backwards and in error placing it in
drive. From the objective point of view of a reasonable person, there is no
doubt that Mrs. Mayne’s conduct fell below the standard of care expected when
someone takes control of a motor vehicle. A mistake of this magnitude cannot be
classified as an error of judgment particularly when the park gear was at the
top of the steering column and the drive gear was at the bottom. Further, Mrs.
Mayne was familiar with the Buick and had driven it regularly since it was
purchased by the parties in 2002. Thus she would have known where on the
steering column the gears were located. In addition, it was reasonably
foreseeable that placing the vehicle in drive would cause damage to anything or
anyone in its path.

[26]        
The question is whether the standard of care expected of Mrs. Mayne was
reduced in the circumstances. Mrs. Mayne argues that she was a “rescuer” who
sought to protect the property of her neighbour. By intervening in the
negligence of her husband to save this property, the law does not expect the
same high standard of care as it imposes on others not acting to protect
persons or property. While the rescue doctrine applies to someone who attempts
to save property, as well as those who seek to rescue someone in danger, I am
not satisfied that this doctrine applies to Mrs. Mayne’s circumstances.

[27]        
The rescue doctrine requires the court to weigh the risk assumed by the
rescuer to his own safety against the value of the property in peril: Toy at
370-372, citing with approval Steel v. Glasgow Iron and Steel Co. Ltd., [1944]
S.C. 237 at 248-249, 268. In the case at hand, Mrs. Mayne did not assume any
risk to herself that may be weighed against the value attached to the property
she feared would be damaged by the Buick. In addition, Mrs. Mayne is not suing
for injuries she suffered as a result of taking on any risk of harm to save
property in danger. Further, if one considers the risk of harm to Mr. Mayne
created by her attempt to “rescue” property as bringing Mrs. Mayne within the
parameters of this doctrine, I would have to find that the risk was far too
great compared to the value of the property at stake to excuse her from
negligence.

[28]        
In my view, the more relevant defence to the action in negligence by Mr.
Mayne is the so called “agony of collision” doctrine. Where a person is faced
with an emergency and is forced to react quickly to a situation created by the
negligence of another person, he is not held to the same standard of care as a
person in a non-emergency situation. This type of case is articulated by Lewis
Klar, Q.C., Tort Law, 3d ed. (Toronto: Thomson Carswell, 2003) at 319:

The sudden emergency, “agony of
collision”, or “agony of the moment” doctrine, illustrates the basic
proposition that the standard of care is that degree of care which would have
been taken by the reasonable person in like circumstances. Since
negligence law does not guarantee the safety of others, but only assures them
that they will be compensated for injuries caused by unreasonable conduct,
errors in judgment which do not qualify as being negligent are permitted. The
significance of the sudden emergency doctrine is that it will permit a person
who is faced with a sudden emergency to make a choice which would not have been
acceptable in a non-emergency situation, and in retrospect, was not the best
choice of those available. Since this will, in some cases, throw the
unfortunate consequences of the emergency onto the shoulders of an innocent
victim, the courts will not lightly recognize the sudden emergency doctrine as
a defence in a negligence suit.… [T]he emergency must have been one which could
not have reasonably been anticipated.

[29]        
The onus of proof rests with Mrs. Mayne to establish that she met the
standard of care of a reasonable person “in the circumstances.” She owed a duty
of care to Mr. Mayne by taking control of the vehicle and, having established a
prima facie case of negligence, the burden of proof shifts to Mrs. Mayne to
establish a defence to her actions. To make out this defence, Mrs. Mayne must
show that she made a mistake “in an emergency” because the situation created by
Mr. Mayne’s failure to leave the vehicle secure was of “such real danger and
the agony of the threatened [consequences] was so great” as to excuse the
error: Comeau at para. 18.

[30]        
What must be shown by Mrs. Mayne is also articulated in Fridman on
the Law of Torts in Canada, vol. 1 at 299-300 and adopted by Cowan J. in LaPlante
at 253:

In Fridman on the Law of Torts in Canada, vol. 1 at pp.
299 – 300, the learned author deals with circumstances which are present here.
He states:

The issue of negligence or no negligence may also be affected
by what has been termed “the agony of the moment”, or “the agony of collision”.
An act forced on a defendant by the emergence of a situation over which he had
no control and which he did not create by his negligence may not amount to a
failure to maintain the appropriate standard of care. Everything depends on
whether the defendant reacted instantaneously to a difficult situation, and did
so in a manner that was not inherently unreasonable given the circumstances and
the necessity for some immediate action on his part.

He then goes on to say:

In a moment of extreme peril and difficulty, perfect presence
of mind, accurate judgment and promptitude under all circumstances are not to
be expected. The danger that produces the reaction must be imminent and
unforeseen. When this is the case, conduct that might otherwise be deemed
negligent will not attract liability.

[31]        
Having regard to the circumstances of this case, I am unable to find
that Mrs. Mayne has satisfied the onus of proof regarding the defence of “agony
of the moment”. There was only a nominal risk of harm to the neighbour’s home
and Mrs. Mayne panicked and took unreasonable and dangerous steps to stop the
backward rolling vehicle. While Mrs. Mayne did not expect the Buick to roll
backward, having no foreknowledge of Mr. Mayne’s failure to engage the
emergency brake or to leave the vehicle in park, she nevertheless severely
overreacted to the perceived danger. Given the very slight slope of the
driveway, and viewed in light of the video presentation showing the likely
speed of the Buick as it rolled backward, it is apparent that things were not
happening quickly at all. The Buick was travelling ever so slowly albeit in a
backward direction. There was no one in the area and the roadway was devoid of other
traffic. The neighbour’s home was a considerable distance away. The Buick would
have to travel out of the driveway, over the first curb, cross the roadway and
negotiate the next curb, and travel through the lawn and the hedges of the
neighbour’s home before it would have come into contact with a structure.

[32]        
In these circumstances, Mrs. Mayne had time to consider what to do. She
could have easily unbuckled her seatbelt to make it easier to reach over and
place the vehicle in park. She could have simply taken the key out of the
ignition. There was no imminent danger from any objective point of view.

[33]        
The court must not make armchair judgments based on hindsight; however,
clearly Mrs. Mayne panicked in a situation that would not have panicked a
reasonable person in the same circumstances. Counsel argued that her age should
be a factor. At 81, her reaction times and her judgment would be impaired.
However, the law cannot countenance a lower standard for elderly drivers. Mrs.
Mayne had a drivers’ licence and regularly operated the Buick. As a
consequence, the court must presume that she possessed sufficient competence to
operate a motor vehicle safely.

[34]        
For these reasons, I find that Mrs. Mayne was negligent when she took
control of the Buick and struck Mr. Mayne.

[35]        
The question remains whether Mr. Mayne was contributorily negligent. In
my view, it was negligent to leave the Buick in neutral when it was still
running. Placing the vehicle in park or engaging the emergency brake were
precautions expected of a reasonable person in the circumstances. Having
examined the statutory provisions cited by Mrs. Mayne, I cannot conclude that
Mr. Mayne violated any regulatory prohibition dictated by statute. However, had
he taken basic safety precautions, the accident would not have occurred. Thus
both parties’ negligence contributed to the injuries suffered by Mr. Mayne.

[36]        
Apportionment of liability under the Negligence Act is based on a
consideration of the degree to which each party is at fault and not on the
degree to which each party’s fault caused the loss: Aberdeen at para. 58.
This is referred to as the relative blameworthiness approach whereby the court
measures the amount by which each party’s actions fell short of the required
standard of care. The relevant factors in this assessment are described in Aberdeen
at paras. 62-63:

[62]      Thus, fault is to be determined by assessing the
nature and extent of the departure from the standard of care of each of the
parties.  Relevant factors that courts have considered in assessing relative
degrees of fault were summarized by the Alberta Court of Appeal in Heller v.
Martens, supra, at ¶ 34 as follows:

1.   The nature
of the duty owed by the tortfeasor to the injured person

2.   The number
of acts of fault or negligence committed by a person at fault

3.   The timing
of the various negligent acts.  For example, the party who first commits a
negligent act will usually be more at fault than the party whose negligence
comes as a result of the initial fault

4.   The nature
of the conduct held to amount to fault.  For example, indifference to the
results of the conduct may be more blameworthy…  Similarly, a deliberate
departure from safety rules may be more blameworthy than an imperfect reaction
to a crisis

5.   The extent
to which the conduct breaches statutory requirements.  For example, in a motor
vehicle collision, the driver of the vehicle with the right of way may be less
blameworthy

…

[63]      Many of the above-noted factors are discussed in
Chiefetz, Apportionment of Fault in Tort, supra, at pp. 102-104. 
Considering that, I conclude it would be appropriate to add the following as
relevant factors:

6.   the
gravity of the risk created;

7.   the extent
of the opportunity to avoid or prevent the accident or the damage;

8.   whether
the conduct in question was deliberate, or unusual or unexpected; and

9.   the knowledge one person had or
should have had of the conduct of another person at fault.

[37]        
Applying these factors to this case, I find that Mr. and Mrs. Mayne were
equally at fault for the accident. Mr. Mayne created the risk by negligently
leaving the vehicle operating without taking any safety precautions. On the
other hand, the risk of harm was relatively nominal. Mrs. Mayne took action in
response to an unexpected event; however, she overreacted and panicked
unreasonably thereby creating a far greater risk of harm.  She had an
opportunity to avoid this harm but failed to act reasonably in the
circumstances. Each party owed identical duties of care to the other party at
the time of the events and but for the actions of both parties the accident
would not have occurred. In these circumstances, the parties are equally at
fault and liability should be apportioned 50/50.

[38]        
Costs should be borne equally by the parties in view of their divided
success.

[39]        
The parties are invited to file written submissions regarding whether I
am seized of the damage assessment portion of this action in the event this
matter is not settled prior to trial. Where the parties are in agreement that I
should hear this matter, please make arrangements directly through the
registry. There is no need for written submissions if that is the case.

“Bruce J.”