IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130808

Docket: M116952

Registry:
New Westminster

Between:

Judy
Radford and Timothy Tabor

Plaintiffs

And

James
Bridge and Roadway Towing Ltd.

Defendants

Before:
The Honourable Mr. Justice Cohen

Reasons for Judgment

[1]            
This is a trial about liability only.

I.                
BACKGROUND

[2]            
On December 16, 2006, the plaintiffs were
involved in an accident while riding as passengers in their vehicle which was
being towed by a truck driven by the defendant James Bridge (the
"defendant driver").  The circumstances leading up to the accident
are somewhat bizarre.

[3]            
The plaintiffs, Timothy George Tabor
(hereinafter called the “father”) and Judy Doris Radford (hereinafter called
the “mother”) are members of the ILWU Local 502.  They live in Surrey, British
Columbia.  They have a longstanding common law relationship and have two
children, a son who was 12 years old and a daughter who was 8 years old at the
time of the accident.

[4]            
The mother and father were both working shifts
on December 16, 2006 at the Deltaport terminal in Tsawwassen, British Columbia
(the “terminal”).  The father’s shift ended at 1:00 a.m., and the mother’s
shift commenced at 1:00 a.m.  On the day of the accident, the plaintiffs’
babysitter failed to show up.  As a result, the mother decided that she would
drive herself and the children in the plaintiffs’ BMW vehicle to the terminal
so that she could work her shift.  She planned to transfer the children to the
father when he came off shift so that he could then drive himself and the
children home in the BMW.  It should be mentioned here that the mother owns a
Ford Explorer which had been driven to the terminal a couple of weeks earlier
by the father and left in the terminal parking lot.

[5]            
In any event, the mother drove herself and
children to the terminal and had a brief meeting with the father after which
the father started his drive home in the BMW with the children.  Shortly after
commencing her shift, the mother received a call notifying her that the father
and the children had been in a motor vehicle accident and were in the first aid
room at the terminal.  She immediately attended the first aid room where she
found the children crying and scared, and the father injured.  She comforted
the children, washed them and then made a plan with the father to drive him and
the children in the Ford Explorer to the site on the Deltaport causeway (the
“causeway”) where the BMW had been in the accident.  The BMW was left at the
site after the accident, and the father and children were given a ride to the
terminal first aid office by another longshoreman shift worker who was driving
by the accident scene shortly after the accident.

[6]            
The mother explained that she decided to drive
back to the accident site in the Ford Explorer because the children would not
leave her sight, and she did not wish the father to drive given his injury.  Her
plan was to retrieve the registration papers from the BMW so as to be able to
report the details of the accident both to the plaintiffs’ superintendent at
work, and to the Insurance Corporation of British Columbia.

[7]            
When the plaintiffs arrived at the site of the
accident, they discovered a half-naked bleeding man standing behind the BMW.  Shortly
thereafter, the CN Rail police showed up with the Delta police.  The police
questioned the plaintiffs about what they were doing on the causeway, and the plaintiffs
explained about the accident and their intent to collect the registration
papers from the BMW and return to the terminal.  The plaintiffs were detained
for about two hours while the police verified their identity and the fact that
they were employed at the terminal and not part of a group of partygoers who the
police had been pursuing in the area.

[8]            
During the plaintiffs’ detention by the police,
the police checked the registration papers for the Ford Explorer and discovered
that the insurance for the vehicle had expired.  The police then decided that a
tow truck, which they had summoned to be used to tow the BMW, would instead be
used to tow the Ford Explorer back to the terminal.  The mother testified that
the plaintiffs asked the police to drive them and the children back to the
terminal, but they told her that she and her family could go in the tow truck.

[9]            
It was now about 3:00 a.m. on December 16^th.
According to the mother, the defendant driver told her that the plaintiffs and
the children could not ride in the tow truck but they would ride in the Ford
Explorer which was being towed.  She said that her concern at the time was for
her children, but she did not consider she was accepting any risk because the defendant
driver assured her they would be safe.  She did not give any thought to what
the consequences might be of riding in the Ford Explorer while it was being
towed because of the assurance she had received.

[10]        
The mother said that after the Ford Explorer was
hooked up to the tow truck, the plaintiffs and the children, who were now all
seated in the Ford Explorer, buckled up their seat belts for the ride to the
terminal.  She said that the tow truck drove over a bridge and was travelling
pretty fast when she heard a “bang” after which the Ford Explorer started
bouncing and swaying around the causeway.  She said that there was a bit of a
decline on a hill leading to the terminal.

[11]        
The mother was unable to estimate how far the
tow truck travelled after she heard the bang.  She said that as the Ford
Explorer was moving back and forth sideways, her upper body was moving inside
the vehicle.

[12]        
In cross-examination, the mother said that when
the plaintiffs decided to take the Ford Explorer to the accident site she was
unaware that the insurance had expired for that vehicle.  The mother insisted
that the defendant driver told the plaintiffs that they were safe riding in the
Ford Explorer while it was being towed, but she could not quote his exact words
to them.  She said that her children had just been in a car accident and she
wished to make sure they would be safe.  She said she had this discussion with
the defendant driver before the plaintiffs and the children got into the Ford
Explorer, even though she had testified at her examination for discovery that
she did not have any discussions with the defendant driver before she got into
the Ford Explorer.  Nevertheless, she insisted that she did ask the defendant
driver if the children would be safe and the driver assured her that they would
be.

[13]        
The mother testified that the father was having
a conversation with the defendant driver and she was listening to the
conversation while she was standing beside them with the children.  She said
she was indirectly part of the discussions that were taking place.  When
counsel asked the mother if she could estimate the speed of the tow truck, she
replied, “no, it was fast”.  She said that the site of the BMW accident was
about halfway distance-wise from the terminal along the causeway.  She also
explained that the plan was for the plaintiffs and the children to return to
the terminal after collecting the registration papers from the BMW and then
arrange for a taxi to drive them all home to Surrey.  She explained that her
employer routinely provides taxi rides at no cost to her at the end of a normal
shift, but this was 3:00 a.m. so she needed the job superintendent to
requisition a taxi given the extenuating circumstances.  Her plan was to tell the
superintendent exactly where the site of the BMW accident was, supply him with
the registration papers and then have everyone travel home in a taxi from the
terminal.  She said that the superintendent needed all of the details so that
he could requisition a taxi.

[14]        
The mother said that she takes a taxi to and
from her employment 70% of the time.  When asked why the plaintiffs did not
call a taxi from the BMW accident site she replied that the police had told
them to get into the tow truck and the tow truck would drive them back to the
terminal.  The police said they would not drive the plaintiffs back, and the plaintiffs
did not argue with them.  Thus, at the time, the plaintiffs did not consider
the option of calling a taxi.  The mother also said that it was the defendant
driver who told the plaintiffs to get into the Ford Explorer with the children
for the ride back to the terminal.  She said that, given the time of day, there
was no traffic on the causeway.

[15]        
The mother conceded that before the date of the
accident she had never seen persons riding in vehicles that were being towed.  She
agreed that the circumstances were unique, but said it was a short distance to
the terminal from the accident site, on a private road with no other traffic
and she had been assured by the defendant driver that it was safe to ride in
the Ford Explorer.  She said she would have not done it if the vehicle was
being towed on the busy King George Highway.

[16]        
The mother said that after the tow truck came to
a stop and the driver reassembled the towing equipment to tow the Ford
Explorer, she and her daughter got into the tow truck to continue the drive to
the terminal.  She explained that she did not get into the tow truck at the BMW
accident site because the defendant driver said they should all get into the
Ford Explorer while he towed the vehicle back to the terminal.

[17]        
The mother said that at the BMW accident scene,
the police, defendant driver, plaintiffs and their children were standing on
the causeway in a group and the police would have heard the conversation between
her and the defendant driver.

[18]        
The father testified that he was driving home to
Surrey from completing his shift at Deltaport when he was involved in an
accident on the causeway.  It was around 1:00 a.m.  He was driving the plaintiffs’
BMW.  The children were in the car with him.  He said that while he was
proceeding on the causeway, a vehicle clipped his vehicle, which sent the BMW
into a ditch.  The other vehicle did not remain at the scene of the accident.  He
suffered some injuries and the children were shaken up.  Another longshoreman
was travelling on the causeway bound for the terminal and this person gave him
and the children a ride back to the terminal.  The first aid attendant at the
terminal contacted the mother.  After they got together, a decision was made
for them all to return to the accident site to get the registration papers from
the BMW as well as his front tooth plate, which he had left behind after the
accident.  He said they decided to take the Ford Explorer, which was owned by
the mother but which he had used to get to work some weeks earlier and then
left it parked in the terminal lot.

[19]        
After the father and mother arrived at the BMW
accident scene, he was able to retrieve the registration papers for the BMW and
his tooth plate.  He said the police detained him and his family for quite a
while to confirm that they were not part of the group that the police were
pursuing, and to check their story about why they were at the BMW accident scene
in the Ford Explorer.

[20]        
The father said that after he and his family
were released by the police, the defendant driver directed all of them to get
into the Ford Explorer.  He said it was not walking distance back to the
terminal, and in any case his knee was very sore and the children were
hysterical.  He said it was about a 10 to 15 minute drive back to the terminal,
it was by then about 3:00 a.m. and there was no traffic on the causeway.  He
asked the defendant driver if it was safe for all of them to travel in the Ford
Explorer while it was being towed and the driver assured him that it was safe.  He
said he was totally worn out given the time of day and the fact that he had
been dealing with his children who were upset and scared.

[21]        
The father and the plaintiffs’ son got into the
front seats of the Ford Explorer, and the mother and the plaintiffs’ daughter
got into the back seats.  They all had their seat belts on.  In fact, his son
asked him if he had his seat belt on.  He said the Ford Explorer was hooked up
to the tow truck with the front end on a hook and the rear wheels on a dolly.  He
said the tow truck was just coming off a bridge when he heard a “loud noise”
and almost immediately thereafter the plaintiffs and their children were thrown
around inside the Ford Explorer, which was bouncing from side to side.  Specifically,
he testified that he was restrained by a seat belt while he was violently
thrown from side to side.  He said it took the tow truck about 2 to 3 minutes
to come to a stop after he heard the loud noise.  He said the tow truck was moving
pretty quickly and as far as he was concerned, was speeding.  He said he hurt
his face in the mouth area when he was being bounced from side to side and this
loosened 12 of his teeth.  However, he had no memory whatsoever of what
transpired after the tow truck came to a stop, and did not even recall how they
all got back to the terminal.

[22]        
In cross-examination, the father testified that
he was not aware that the insurance had expired for the Ford Explorer.  He only
found out when the police attended at the BMW accident site.  Counsel asked him
why he did not take a taxi directly home once he got back to the terminal after
the BMW accident.  He said that it sometimes took an hour and a half for a taxi
to arrive to this area, and in any case they decided to return to the scene of
the BMW accident to retrieve the registration papers and his tooth plate.  He
also said he did not really have an explanation for why they took the Ford
Explorer instead of a taxi, given that no matter what, they had to travel by
the BMW accident scene to get back to their home in Surrey and the taxi could
have stopped at the scene.  He said that sometimes a taxi driver will not agree
to pull over and stop so that a passenger can get out to do something.  As for
why he did not call a taxi from the BMW accident scene to take them all back to
the terminal, he said that he did not have a phone and was directed by the
police officer.  He said he did what he was told.

[23]        
The father said that he takes a taxi to and from
work about 80% of the time.  He was not familiar with the telephone number of
the taxi company because he had never called one himself to take him to or from
work.  He explained that the job superintendent is the only person authorized
to call for a taxi.  However, he agreed that he was capable of finding a phone
number for a taxi to attend.  He also said that he did not want to wait around
at the scene of the BMW accident given the time of day and could not see him
and his family waiting inside his vehicle for a taxi to arrive.

[24]        
The father testified that he has seen lots of
tow trucks towing vehicles, but has never noticed anyone travelling inside a
towed vehicle.  He agreed that his situation was unique, but he saw no danger
because he had been directed to do something by persons he trusted, especially
the police, and he did not think there was any risk whatsoever.  The police
told him to get into the “truck” and the defendant driver told him to get into
the Ford Explorer. When counsel asked him what he understood “truck” to mean,
he said his first thought was the tow truck, but he was not thinking all that
clearly at the time.  Counsel suggested to him that the police were not part of
his conversation with the defendant driver, and he disagreed stating that they
were all standing together in a small group.  Counsel pointed out that at his
discovery, he testified that he did not recall any conversation between the defendant
driver and the police about him getting into the Ford Explorer.  He offered no
explanation for why he gave this testimony.

[25]        
The father testified that shortly after the tow was
underway, there was a noise and the Ford Explorer shook for 2 to 3 minutes, although
it might have been less time.

[26]        
The defendant driver testified that at the time
of the accident he had been driving a tow truck for roughly one year.  As
preparation for his job he had three weeks of training with multiple drivers on
different pieces of equipment.

[27]        
It was approximately 3:00 a.m. when he got a
call from his dispatcher to attend at the Deltaport causeway.  He said the
lighting at the scene of the BMW accident was very poor such that initially he
did not even see the BMW, although he did see the Ford Explorer.  When he
arrived, he spoke with the police who told him about the BMW accident and that
the owner had shown up in the Ford Explorer, but it was not insured.  He said that
when he had a conversation with the police about the plaintiffs and their
children riding in the Ford Explorer for the tow to the terminal, he commented to
the police officer that the officer would be the one to give him a ticket for
towing a vehicle with persons inside.

[28]        
The defendant driver then hooked up the Ford
Explorer to his truck.  He said he could not recall at that point who in fact was
in the Ford Explorer.  He said that  he did not recall having any conversations
with the father or mother before he left the scene with the Ford Explorer in
tow.  He also said that he thought it was company policy that frowned upon
having passengers inside a vehicle that was being towed.  He said he learned
that it was against the law to do so after the incident.

[29]        
The defendant driver said that when his tow
truck left the scene of the BMW accident, the plaintiffs and the children were
inside the Ford Explorer.  When asked why he let them ride in the towed vehicle
he said he was trying to be nice – they had had a “crappy” night and he was
trying to help them out a little.

[30]        
The defendant driver said that he did not recall
where the plaintiffs were when he was talking with the police.  Counsel asked
him if he told the plaintiffs that they could not ride in the tow truck, and he
said it did not sound like something he would have said to them because it was
company policy to permit passengers to ride in the tow truck, but he honestly
could not recall.

[31]        
The defendant driver described the procedure to
hook up a four-wheel-drive vehicle to the tow truck and said his description of
the hook-up was his practice at the time of the accident for 99.9% of the
vehicles he towed.

[32]        
He said once the vehicle was hooked up, he
started to move towards the terminal and as he crossed the overpass he heard or
felt a noise or a jerk.  He saw in his rear view mirror that the Ford Explorer
was moving from side to side.  He brought the tow truck to a stop, which took
him no more than 20 seconds, although it felt to him like a lifetime.  He said
that he could not say how fast he was going from the time he left the BMW
accident site to where he heard the noise, but said that in no way would he have
been speeding.  He could not actually explain why the dolly used to transport
the Ford Explorer fell apart.  He said that before this incident, nothing
similar had happened to him.  After he stopped, he checked to see if everyone
in the Ford Explorer was alright.  He then rebuilt the dolly and proceeded to
the terminal with the mother and the plaintiffs’ daughter riding with him in
the tow truck.  The father and the plaintiffs’ son remained in the Ford
Explorer.

[33]        
The position of the defendants is that there was
no negligence on the part of the defendant driver, or alternatively, if he is
found to be negligent, then the contributory negligence of the plaintiffs must
be considered.

II.              
NEGLIGENCE

[34]        
Section 7.07(6) of the Motor Vehicle Act Regulations,
B.C. Reg. 26/58 provides that no person shall tow a motor vehicle if there is a
person in or on the towed motor vehicle.  There is no doubt that provision was
breached in this case.  However, the law provides that mere breach of a
statute, standing alone, does not constitute negligence per se: see Van
Tent v. Abbotsford (City) 2013 BCCA 236.

[35]        
With respect to the issue in this case as to
whether a breach of the standard of care could be inferred from the evidence –
in other words, can the court conclude that the dolly broke apart because of
improper assembly of the dolly, the defendant driver’s speed or a combination
of such factors – the law applicable to the court’s analysis is set out at paras. 18-20
of Michel v. Doe, 2009 BCCA 225:

[18] In Fontaine [v. British Columbia (Official
Administrator),[1998] 1 S.C.R. 424], the Supreme Court of Canada concluded
that the “doctrine” of res ipsa loquitur in Canadian jurisprudence ought
to be treated as “expired”. In view of the arguments advanced in this case on
the burden of proof, it may be helpful to refer to the reasoning of Major J. in
reaching the conclusion that the legal maxim was unnecessary in deciding cases
in which the evidence of negligence is largely or wholly circumstantial. Mr. Justice
Major began his analysis by noting that for res ipsa loquitur to arise,
“the circumstances of the occurrence must permit an inference of negligence
attributable to the defendant”: 1) the defendant had sole management and
control of the thing that inflicted the damage; and 2) the occurrence was such
that it could not normally have happened without negligence, that is, “whether,
in the particular circumstances established by the evidence, the accident would
ordinarily occur in the absence of negligence.” Should res ipsa loquitur
apply, the strength or weakness of the resulting inference of the negligence
will depend on the factual circumstances of the case (paras. 17-19, 22).

[19] As to the effect of the application of res ipsa
loquitur, Major J. stated:

23 As in any negligence case, the
plaintiff bears the burden of proving on a balance of probabilities that
negligence on the part of the defendant caused the plaintiff’s injuries. The
invocation of res ipsa loquitur does not shift the burden of proof to the
defendant. Rather, the effect of the application of res ipsa loquitur is
as described in The Law of Evidence in Canada (1992), by John Sopinka,
Sidney N. Lederman and Alan W. Bryant, at p. 81:

Res ipsa loquitur, correctly
understood, means that circumstantial evidence constitutes reasonable evidence
of negligence. If, at the conclusion of the case, it would be equally
reasonable to infer negligence or no negligence, the plaintiff will lose since
he or she bears the legal burden on this issue. Under this construction,
the maxim is superfluous. It can be treated simply as a case of circumstantial
evidence.

24 Should the trier of fact choose
to draw an inference of negligence from the circumstances, that will be a
factor in the plaintiff’s favour. Whether that will be sufficient for the
plaintiff to succeed will depend on the strength of the inference drawn and any
explanation offered by the defendant to negate that inference. If the
defendant produces a reasonable explanation that is as consistent with no negligence
as the res ipsa loquitur inference is with negligence, this will
effectively neutralize the inference of negligence and the plaintiff’s case
must fail. Thus, the strength of the explanation that the defendant must
provide will vary in accordance with the strength of the inference sought to be
drawn by the plaintiff.

[20] Mr. Justice Major went on to conclude that as res
ipsa loquitur was unhelpful it should be treated as “expired”, and provided
a simpler formulation of the correct approach for dealing with circumstantial
evidence in negligence actions:

26 Whatever value res ipsa
loquitur may have once provided is gone. Various attempts to apply the
so-called doctrine have been more confusing than helpful. Its use has been
restricted to cases where the facts permitted an inference of negligence and
there was no other reasonable explanation for the accident. Given its limited
use it is somewhat meaningless to refer to that use as a doctrine of law.

27 It would appear that the law would
be better served if the maxim was treated as expired and no longer used as a
separate component in negligence actions. After all, it was nothing more than
an attempt to deal with circumstantial evidence. That evidence is more
sensibly dealt with by the trier of fact, who should weigh the circumstantial
evidence with the direct evidence, if any, to determine whether the plaintiff
has established on a balance of probabilities a prima facie case of
negligence against the defendant. Once the plaintiff has done so, the defendant
must present evidence negating that of the plaintiff or necessarily the
plaintiff will succeed.

[Emphasis in Michel.]

[36]        
In the case at bar, the defence contends that
the possibilities of non-negligence and of negligence were equally consistent
with the available evidence.  I disagree with this submission.  I find that the
plaintiffs have proven on a balance of probabilities that the defendant driver
was negligent.

[37]        
The defendants admit that the defendant driver
affected the tow by using a dolly system to pick up the Ford Explorer.  They
also admit that during the course of towing the vehicle the dolly broke apart
completely leaving the Ford Explorer connected only by a system of L-arm chains
which caused it to swing back and forth.

[38]        
Although there is no actual evidence of what
caused the dolly to break apart (the defendant driver said he had no idea why
it broke apart), there is nevertheless compelling evidence from which I find
that the reasonable inference can be drawn that the cause was a combination of
human error and speed.

[39]        
First, the evidence is that after the dolly
broke apart, and after the tow truck came to a stop, the driver was able to
reassemble the dolly and carry on with the tow.  I think this evidence strongly
militates against a conclusion that there was some mechanical defect in the
dolly system which caused it to break apart.

[40]        
Second, the plaintiffs both testified that in
their estimation the driver was driving too fast while he was towing the Ford
Explorer.  On the other hand, the defendant driver said that there was no way
that he was speeding.  However, I prefer the plaintiffs’ evidence over the
evidence of the defendant driver on this point.  His recollection was generally
weak about many of the details surrounding the incident, and I formed the
strong impression that the memories of the plaintiffs are far more reliable
than that of the defendant driver on what took place at the BMW accident scene,
as well as during the tow of the Ford Explorer.

[41]        
Thus, I find that it was a failure on the part
of the defendant driver to properly assemble the dolly system at the outset of
the tow, on its own or in combination with the fact that he was driving too fast,
that caused the dolly to break apart.

III.            
CONTRIBUTORY NEGLIGENCE

[42]        
Having found that the defendant driver was
negligent, I turn next to the issue of contributory negligence.  The onus is on
the defendants to prove that the plaintiffs are in part to blame for their
injuries.

[43]        
The position of the plaintiffs is that they had
no real option other than to get into the Ford Explorer.  In support of that
position, they note that they found themselves in a situation through no fault
of their own on a dark stretch of a road with two traumatized children and an
injured father.  They asked and were denied a ride back to the terminal by the
police.  Four of them could not all ride in the tow truck.  They insist that
calling a taxi was not a realistic option given the time of day.  They were primarily
concerned about the children and they had already been detained at the BMW
accident site by the police for about two hours.  Further, the defendant driver
told them that riding in the Ford Explorer would be safe.  On that basis, the
plaintiffs submit that no blame can be ascribed to them in all of the
circumstances.  I disagree.

[44]        
In Cempel v. Harrison Hot Springs Hotel Ltd.
(1997), 43 B.C.L.R. (3d) 219 at paras. 18-19 (C.A.), Lambert J.A.
explained the approach to be taken for apportionment of liability under the Negligence
Act, R.S.B.C. 1996, c. 333:

18        I believe the trial judge’s choice
of words and the syntax of the last two sentences indicate that the reason that
the plaintiff was required to pay 75% of her own loss was that she was
“primarily the author of her own misfortune”.  I consider that the trial judge
reached his conclusion on apportionment by deciding that the apportionment
should be based on an assessment of relative degrees of causation as between
the plaintiff as an active causative force at the moment of the injury and the
defendant as a passive causative force at the moment of the injury.

19.       I
think that such an approach to apportionment is wrong in law.  The Negligence
Act requires that the apportionment must be made on the basis of “the degree to
which each person was at fault”.  It does not say that the apportionment should
be on the basis of the degree to which each person’s fault caused the damage. 
So we are not assessing degrees of causation, we are assessing degrees of
fault.  In this context, “fault” means blameworthiness.  So it is a gauge of
the amount by which each proximate and effective causative agent fell short of
the standard of care that was required of that person in all the circumstances.

[45]        
In Bradley v. Bath 2010 BCCA 10 at paras. 24-25,
Tysoe J.A. noted:

[24] At common law, contributory negligence on the part of a
plaintiff was a complete defence to his or her claim. This was considered to be
unjust, and legislatures in many common law jurisdictions passed contributory
negligence statutes (also referred to as apportionment legislation). The
statute in this province is currently called the Negligence Act,
R.S.B.C. 1996, c. 333, s. 1(1) of which reads as follows:

If by the fault of 2 or more
persons damage or loss is caused to one or more of them, the liability to make
good the damage or loss is in proportion to the degree to which each person was
at fault.

If damage or loss has been caused by the fault of two or more
persons, s. 4 of the Act requires the court to determine the degree
to which each person was at fault. While the prerequisite to apportionment is
that the damage or loss has been caused by the fault of two or more persons,
the apportionment must be done on the basis of the degree to which each person
was at fault, not on the basis to which each person’s fault caused the damage: Cempel
v. Harrison Hot Springs Hotel Ltd., [1998] 6 W.W.R. 233, 43 B.C.L.R. (3d)
219 (C.A.).

[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 …

[46]        
In the case at bar, I find that the plaintiffs
appreciated the risk associated with them riding together with their children
as passengers in the Ford Explorer while it was being towed.  I also find that
they accepted the risk not only because of the assurance they received from the
defendant driver as to their safety, but also because they considered this
option in all of the circumstances to be more convenient than waiting at the
BMW site for a cab to take them home, especially because once they were back at
the terminal they could ask the superintendent to arrange a cab to drive them
to Surrey at no cost to them.

[47]        
In my opinion, regardless of what the plaintiffs
were told by the defendant driver about their safety, or for that matter the
fact that the police observed the situation and did nothing to stop it, they
nevertheless had an obligation to assess the risk and act reasonably.  The fact
that the defendant driver told them it was a safe option did not mean that the
risk associated with the situation they accepted was unforeseeable.  Thus, I am
satisfied that to some degree the plaintiffs were to blame, but I find that the
defendant driver was at fault to a much greater degree.

[48]        
I find that the defendant driver knew full well
that it was against the law to permit persons to ride in a vehicle being towed.
His responsibility in this regard was not removed by the fact that he believed
the police would not penalize him in the circumstances.  In addition, he was
completely in control of the situation in terms of allowing the plaintiffs and
their children to ride in the Ford Explorer while it was being towed.  He could
have easily refused them this option or have offered to take two of them at a
time back to the terminal in his tow truck.

[49]        
When I balance the relative degrees of fault, I
find that liability should be apportioned 25% to the plaintiffs and 75% to the
defendant driver.

“B.I. Cohen J.”
The Honourable Mr. Justice B.I. Cohen