IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140806

Docket: 12-3341

Registry:
Victoria

Between:

Deidre Solberg

Plaintiff

And:

Jonathan David
Carriere

Defendant

Before:
The Honourable Mr. Justice Johnston

Oral Reasons for Judgment

[1]            
THE COURT: This is a trial into the question of liability for an
accident in which a trailer being towed by a vehicle driven by the defendant, Mr. Carriere,
ran over Ms. Solberg in a parking lot. Issues of liability were severed
from issues of damages by an order granted June 2, 2014.

[2]            
The accident in question occurred in the early morning of April 29,
2012, outside the Quinsam Hall in Campbell River. From photographs and diagrams
in evidence, it appears that the hall is a freestanding building surrounded by
a paved parking lot and laneways. Outside the front entrance of the hall there
is a line of parking stalls, then a driving lane, then a double row of parking
stalls, another driving lane, and a final row of parking stalls against the
property line. There are no marked crosswalks on the parking lot or laneways.

[3]            
The accident in question occurred somewhere in the first driving lane
outside the front door of the hall.

[4]            
The plaintiff, Ms. Solberg, had been volunteering at a charity
event held at the hall on the evening of April 28th and into the early morning
hours of the 29th. Mr. Carriere was a member of a musical group that had
entertained at the event. Ms. Solberg had been drinking; Mr. Carriere
had not.

[5]            
Ms. Solberg was not clear in her evidence on how much she had had
to drink. She recalled, she thought, being given a glass of champagne when she
arrived to begin her volunteering, then had perhaps four cans of a vodka cooler
and some shots, she was not precise as to shots of what, over the evening,
along with a beer a friend bought her. I gather from her evidence that much of
this alcohol was consumed toward the latter portions of the evening, although
she was not terribly precise about that.

[6]            
Ms. Solberg has very little memory of the events of the evening
leading up to the accident or what happened immediately after the accident. She
recalls that prior to the accident, she was standing outside the hall and it
was chilly out. She recalls going to or intending to go to her car to get $20
from the glove compartment in order to tip the driver of a shuttle bus that she
intended to take home. The next thing she recalls is a bump and then lying face
down in the parking lot. Ms. Solberg has no memory of being interviewed by
police in the hospital on the day after the accident or of the accident, that
is the 29th.

[7]            
Ms. Solberg identified a blouse or the remains of a blouse that she
had been wearing on the evening in question, and said in evidence that there
was a mark on the back. Counsel speculated in argument about how that mark got
there. I resist any urge to join in that speculation in the absence of some
evidence beyond the mere existence of a mark.

[8]            
Several witnesses in addition to Ms. Solberg have testified about
the events on the night in question.

[9]            
Ms. Dowler was standing outside the Quinsam Hall talking with a
small group of people when she saw a woman, who turned out to be Ms. Solberg,
in Ms. Dowler’s words, "kind of run alongside a moving vehicle that
was towing a trailer in the parking lot." According to Ms. Dowler,
Ms. Solberg was just behind the back door of the vehicle when Ms. Dowler
first saw her. Ms. Dowler thought Ms. Solberg had her right hand out.
Ms. Dowler saw Ms. Solberg only as long as it took Ms. Solberg
to take two or three steps.

[10]        
There were cars parked between where Ms. Dowler was standing and
Ms. Solberg, so Ms. Dowler could see Ms. Solberg only from the
waist up. Ms. Dowler saw Ms. Solberg go down, then saw the trailer go
up and down, as if it had gone over a speed bump. There are no speed bumps in
the Quinsam Hall parking lot. Ms. Dowler had briefly interacted with
Ms. Solberg during the evening and testified that Ms. Solberg
appeared drunk to her.

[11]        
Mr. Scott, another witness, was standing outside the hall at the
end of the evening and heard some yelling. He heard someone yell,
"Hey." He turned, heard a hand slap on the side of a trailer that he
saw being towed. Mr. Scott saw Ms. Solberg from the waist up, as her
lower body was blocked by parked vehicles. Then Mr. Scott says he did not
see Ms. Solberg, and he heard what sounded like a speed bump or a vehicle
going over a speed bump. Mr. Scott ran to intercept the vehicle that was
towing the trailer. Mr. Scott was fairly definite that Ms. Solberg
had slapped the trailer and not the vehicle towing it. Mr. Scott said that
Ms. Solberg slapped the trailer twice at the most.

[12]        
Ms. Scott, Mr. Scott’s wife, was also volunteering that night.
She has known Ms. Solberg since she was about 20 years old. She knew, when
Ms. Solberg greeted her on arrival, that Ms. Solberg had been
drinking. Ms. Scott was also outside at the end of the evening and heard
Ms. Solberg’s voice say, "Stop, where’s the party?" She saw
Ms. Solberg run five to eight feet alongside a vehicle, hit the side of
the trailer once, maybe twice, then disappear from view behind parked cars. From
that, Ms. Scott inferred that Ms. Solberg had fallen. Ms. Scott
describes Ms. Solberg as inebriated at this point. Ms. Scott did not
see Ms. Solberg slap the vehicle at all.

[13]        
Mr. Nikolaisen was one of the musicians providing entertainment
that night. He testified that after the band finished playing and had packed
up, he got into the back of Mr. Carriere’s vehicle. He said
Ms. Solberg had forced her way — sorry, Mr. Nikolaisen got into the
front of the Carriere vehicle. Mr. Nikolaisen said that Ms. Solberg
had forced her way into the backseat area where band members, Mr. Lorentz
and Mr. Cook, were sitting. Mr. Nikolaisen says that Ms. Solberg
was laying across their laps, speaking inappropriately, and that whenever one
of the band members tried to get Ms. Solberg out of the vehicle, she
became louder and more animated.

[14]        
Mr. Nikolaisen describes Ms. Solberg’s sobriety as non‑existent.
Mr. Nikolaisen said that eventually Ms. Solberg was persuaded to get
out of the vehicle, at least far enough that Mr. Lorentz could close the
rear door. Mr. Nikolaisen estimated that Ms. Solberg got about six
feet away from the vehicle. Mr. Nikolaisen said that Mr. Carriere
asked if they were good to go, which he interpreted as asking whether it was
safe to leave, and that he, Nikolaisen, told Mr. Carriere that it was. Mr. Nikolaisen
said Mr. Carriere started forward. He heard a smack on the side of their
vehicle or he said probably the trailer, and that he made some sort of
wisecrack about having run over the plaintiff. He says that as the vehicle
turned toward the exit, someone ran up to say that it had run the plaintiff
over.

[15]        
Mr. Cook was another band member. He described Ms. Solberg’s
level of intoxication as extreme at the end of the evening. He said that
Ms. Solberg was not walking normally, she was using her hands to push off
things. She was obviously not doing anything normally. Mr. Cook said that
Ms. Solberg was playful and forceful. He said that while he was in the
truck, Ms. Solberg was grabbing and pushing and rocking the truck, which
was a four‑door Nissan Pathfinder SUV‑type vehicle.

[16]        
Mr. Cook said that Ms. Solberg was in and out of the rear passenger
area of the vehicle. Mr. Cook was sitting in the rear of that vehicle on
the driver’s side. He said he was turned partially to his right, because there
were some bags or other objects on the seat or the floor that prevented him from
sitting perfectly straight. He said that when Ms. Solberg was persuaded to
leave the vehicle and the rear door was closed, he could see Ms. Solberg
through the rear quarter panel window. Mr. Cook said that Ms. Solberg
stood with her arms crossed, two to three feet from the vehicle. Mr. Cook
said that Mr. Carriere asked something to the effect, "Can I
go?" and then started forward slowly.

[17]        
Mr. Cook said that Mr. Nikolaisen shouted something out his
window to the people outside, and that the plaintiff, Ms. Solberg, reacted
by coming toward the vehicle with her hands extended forward. Mr. Cook
heard Ms. Solberg yell something, and she hit the vehicle again and then
disappeared from his view.

[18]        
In cross-examination, it developed that as the vehicle began to move
forward, Mr. Cook’s ability to see Ms. Solberg was reduced, so that
although he saw her hands raised above her head and then start down as if to
hit the vehicle, he deduced that she had hit the vehicle by the sound of a hand
hitting the vehicle and not the trailer, immediately after he saw the movement.

[19]        
Mr. Lorentz was a member of the band. He was someone who had known
Ms. Solberg for many years. Mr. Lorentz was sitting in the rear passenger’s
side of Mr. Carriere’s vehicle. Mr. Lorentz said that Ms. Solberg’s
intrusion into the rear of the vehicle was a friendly kind of fun interaction,
which is a somewhat more charitable description of Ms. Solberg’s actions
than that given by his band mates. Mr. Lorentz said that when
Ms. Solberg left the vehicle and was safely out of the way of the door, he
closed it, and then he turned to look straight ahead. Mr. Lorentz heard
the sound of a smack, either on his door or immediately behind it, and then
felt some movement that he described as a commotion from the area of the
trailer.

[20]        
Mr. Lorentz said at first that Ms. Solberg was a foot from the
vehicle when it started forward, and then on reconsideration said it was more
like a metre from the vehicle. Mr. Lorentz testified that Ms. Solberg
was drunk, she was staggering.

[21]        
Mr. Carriere’s evidence was entirely derived from excerpts from his
examinations for discovery read in as part of the plaintiff’s case. It is as
follows:

[22]        
As I have said, Mr. Carriere’s Pathfinder was an enclosed sports
utility vehicle. The trailer in question was an enclosed box, riding on what
appears from the photographs to be a single axle with one wheel on each side. Also
from the photographs, the Pathfinder and its trailer appear to be of similar
width, but the wheels on either side of the trailer and the fenders over the
wheels appear to protrude some unknown distance out from the side of the
trailer.

[23]        
From all of the evidence, I find that Ms. Solberg was in an advanced
state of intoxication in the early morning hours of April 29, 2012. I find that
Mr. Carriere was not affected by alcohol.

[24]        
I find that Ms. Solberg was acting in an animated and boisterous
fashion and that Mr. Carriere knew it. Ms. Solberg was in and around
Mr. Carriere’s Pathfinder vehicle after the four band members got into it,
and Ms. Solberg briefly delayed their departure by preventing
Mr. Lorentz from closing the rear passenger door,  Ms. Solberg’s
animation including striking and rocking Mr. Carriere’s Pathfinder
vehicle.

[25]        
There is no question in my mind that Mr. Carriere owed a duty to
take reasonable care for the safety of Ms. Solberg. It is also crystal
clear that Ms. Solberg owed at least a duty to take reasonable care for
her own safety. Ms. Solberg’s duty did not end there. She also owed a duty
of care to Mr. Carriere.

[26]        
In Nance v. British Columbia Electric Railway Company, Viscount
Simon said:

Generally speaking, when two
parties are so moving in relation to one another as to involve risk of
collision, each owes to the other a duty to move with due care, and this is
true whether they are both in control of vehicles, or both proceeding on foot,
or whether one is on foot and the other controlling a moving vehicle.

[27]        
At issue here is whether either party breached the duty of care each
owed, either to the other or, in Ms. Solberg’s case, to herself.

[28]        
I find as a further fact that Ms. Solberg approached the Pathfinder
and its trailer after it began to move slowly ahead, and that in doing so she
failed to take reasonable care for her own safety. Whether Mr. Carriere
also breached the duty of care he owed to Ms. Solberg, and if he did
breach the duty of care, the proportions in which each were at fault is the
central issue in this case.

[29]        
The Motor Vehicle Act defines "highway" so as to
include "every private place or passageway to which the public, for the
purpose of the parking or servicing of vehicles, has access or is invited." 
Therefore, the parking lot in question was a highway within the meaning of the
Act.

[30]        
The Motor Vehicle Act contains other sections that bear on the
facts of this case, including at 169:

A person must not move a vehicle
that is stopped, standing or parked unless the movement can be made with
reasonable safety and he or she first gives the appropriate signal under
section 171 or 172.

[31]        
The signalling referred to in s. 171 would have been meaningless in
the circumstances of this case, as Ms. Solberg was to the right of the
vehicle when it started up, and s. 171 refers, at least in part, to hand
signals made by Mr. Carriere. That would have been irrelevant, as it would
have been on the opposite side of the vehicle. As well, any signals from the
signal lights likely would have been undetectable from Ms. Solberg’s vantage
point. But 169 is not solely concerned with signalling, it also requires a
driver to ascertain whether starting from the stopped position can be done with
reasonable safety before moving out.

[32]        
The parties also referred to ss. 179 to 182 of the Motor Vehicle Act,
and I will not repeat them, although I have studied those sections in some
detail for the purposes of arriving at this decision.

[33]        
I note that Mr. Justice Anderson of the Court of Appeal said in Cook
v. Teh at page 10 that that sections referred to:

. . . do not constitute
an exclusive code relating to rights of way between pedestrians and vehicles. They
are not a substitute for the common law duty of care owed by pedestrians and
drivers to exercise due care for  their own safety and the safety of others.

[34]        
The Supreme Court of Canada has also confirmed that the statutory
provisions supplement, but do not replace, the common law, in British
Columbia Electric Railway v. Farrer.

[35]        
With respect to s. 179 of the Motor Vehicle Act, there was
no crosswalk mentioned by any witness nor is one shown in photographs of the
parking lot. For that reason, I do not consider ss. 179(1), (3), and (4) to
apply. I also refer to the decision in Russell v. Parks, 2014 BCCA 104,
at paragraph 16.

[36]        
I do not see an application for s. 182 of the Motor Vehicle Act
in the circumstances of this case, even though the parking lot is included
within the definition of a highway.

[37]        
I turn now to the plaintiff’s argument that I ought to draw an adverse
inference against Mr. Carriere because he did not testify at the trial. Mr. Carriere
was present throughout the trial, at least until he elected not to call
evidence.

[38]        
Counsel relies particularly on this passage from Halsbury’s Laws of
Canada that was cited in McIlvenna v. Viebig, 2012 BCSC 218, at
paragraph 70:

It is highly unusual for a party
not to testify in a civil trial. The court may draw an adverse inference from
the fact that a party fails to testify, provided that it is reasonable in the
circumstances to do so. In order for an adverse inference to be drawn, there
must be a dispute as to those facts concerning which the party would be
competent to testify. Furthermore, if the plaintiff has failed to establish a prima
facie case against the defendant, no adverse inference will be drawn should
the defendant not testify.

[39]        
In another passage, this one drawn from the Canadian Encyclopedic
Digest, Volume 26, Title 61, the court in McIlvenna emphasizes this
portion:

Today, the adverse inference is
discretionary, and should not be drawn unless it is warranted in all the
circumstances. In particular, the judge should consider whether: there is a
legitimate explanation for failing to call the witness; the witness is within
the exclusive control of the party or is equally available to both parties; and
the witness has key evidence to provide or is the best person to provide the
evidence in question.

[40]        
Here it is important for the outcome of liability to know whether
Mr. Carriere looked toward Ms. Solberg before he started his vehicle
in motion. His answer on examination for discovery is ambiguous, as he said
only that no one in his vehicle was looking at Ms. Solberg as he drove
away. The ambiguity is that he was not clearly referring to whether he looked
or anyone looked at her before he drove away. It is apparent that at least some
of the occupants were looking at or toward Ms. Solberg as
Mr. Carriere set the vehicle in motion, but the real question is, was
Mr. Carriere doing so?

[41]        
Mr. Carriere was present throughout the trial. That means that
Mr. Carriere was available to the plaintiff, pursuant to Rule 12‑5(22)(a),
if the plaintiff had elected to call him.

[42]        
The plaintiff’s explanation for not calling Mr. Carriere at the
trial, that is counsel expected that he was going to testify, a tactical
decision, is roughly similar to his counsel’s explanation for not calling him,
and that is confidence that the plaintiff had not met the burden of proof.

[43]        
Weighing the evidence in light of those criteria set out in McIlvenna,
I conclude that in this case I will draw an inference that, if he had been
called, Mr. Carriere’s evidence would not have tended to establish that he
looked toward Ms. Solberg before he put his vehicle in motion. I conclude
that Mr. Carriere relied on his passengers to tell him if it were safe to
move, whether it was good to go or clear. This is consistent with his discovery
evidence that no one was looking at Ms. Solberg as he was driving away,
and consistent with the evidence of his passengers who did testify.

[44]        
This is not a case where someone suddenly emerges into the path of a
vehicle, as in Blackwood v. Marchetti, one of the cases cited, nor is it
a case where an impaired passenger gets out of a vehicle and, instead of going
where she said she was going to go, squats behind the vehicle, as occurred in Rinta
v. Vanderbasch, another case cited.

[45]        
This case is also distinguishable from Mitchell v. Lockhart. In
that case, the plaintiff was observed to walk from a position close to a slowly‑moving
bus, onto a curb, before running back into the path of the still‑moving
bus. The distinguishing feature, of course, is no one saw Ms. Solberg
reach the curb or other place of safety. She simply stood back from the vehicle
before it started to move forward.

[46]        
This case has some similarity to Muller v. Erlach where a
defendant was manoeuvering a vehicle in an area where there were numerous
pedestrians in various states of intoxication. The plaintiff, who was described
as very intoxicated, was walking away behind the vehicle when the vehicle
abruptly reversed. The Carriere vehicle, of course, was moving forward, not in
reverse.

[47]        
This case is somewhat dissimilar to Muller, in that in Muller
the intoxicated plaintiff was walking away when a vehicle backed up past him
and then swerved and knocked him over. The dissimilarity that is very clear
here is that Ms. Solberg was moving boisterously and unpredictably toward
Mr. Carriere’s vehicle and in its immediate vicinity, both before and
after he set the vehicle in motion.

[48]        
The plaintiff cited Wilson v. Potter where a defendant knew that
people of all ages and levels of sobriety could be expected to be crossing a
highway in the area in which she was driving, where the defendant was driving
at a speed slightly over the posted limit when she hit an intoxicated plaintiff
who had made it halfway or more across the highway before the defendant struck
him. The parallels between that case and this is that both plaintiffs were
intoxicated.

[49]        
Mr. Carriere knew Ms. Solberg was intoxicated, whereas in Wilson,
the defendant ought to have known from her familiarity with the area that a
drunk would very possibly be in or on the highway.

[50]        
The court in Wilson apportioned liability 60 percent to the
defendant and 40 percent to the plaintiff.

[51]        
On all of the evidence in this case, I find that Ms. Solberg, who
was drunk and boisterous, was persuaded to stand clear of the rear door of
Mr. Carriere’s vehicle long enough for Mr. Lorentz to close the door
and someone, perhaps more than one of the band members, to inform Mr. Carriere
that it was safe to start forward. I find further that Mr. Carriere did
start forward, knowing that Ms. Solberg was drunk and boisterous and near
the rear side of his vehicle, knowing that she had been interacting
boisterously with his band mates in the rear of the vehicle.

[52]        
I find that Ms. Solberg reacted, either to the movement of
Mr. Carriere’s vehicle or to something Mr. Nikolaisen said, by moving
toward the vehicle and slapping it or at it. Ms. Solberg was shouting
something as she moved toward the vehicle. Ms. Solberg then either slipped
and fell under the wheel of the trailer or was hit and knocked under the wheel
of the trailer. Of those two possibilities, I find it more likely that
Ms. Solberg simply slipped and fell.

[53]        
I find that Mr. Carriere breached his duty of care by moving his
vehicle forward without looking for himself to see that it was safe to do so,
knowing that Ms. Solberg was in the immediate area and acting foolishly.

[54]        
As between the plaintiff and the defendant, I conclude that
Ms. Solberg’s negligence is the greater. She moved toward a moving vehicle
and she did so deliberately, even allowing for diminished capacity due to her
alcohol consumption. On the evidence, I assign 60 percent of the fault to
Ms. Solberg and 40 percent of the fault to Mr. Carriere.

                “R.T.C.
Johnston, J.”           

The
Honourable Mr. Justice Johnston