IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150302

Docket: 09 0872

Registry:
Victoria

Between:

Anthony Walkus, an
Infant, by his
Litigation Guardian, Leslie Speck

Plaintiff

And

Terry Adam Walkus
and Eva Mary Ann Walkus

Defendants

And

Robert Walkus,
Darlene Walkus and Jane Nelson

Third
Parties

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]           
This is an action for damages arising out of a motor vehicle accident
that occurred on May 1, 1997 in the driveway of #219 Tsulquate Road, Port
Hardy, B.C. (“House 219”). The claimant was two years old at the time of the
accident. Although the claimant commenced this action as a minor, and was
represented by a litigation guardian throughout, he is now an adult and has
continued the action on his own behalf.

[2]           
Both liability and quantum of damages are in dispute. On January 14,
2015, Thompson J. ordered that the issue of liability be tried separately from
the issue of damages. This trial solely concerns the question of liability.

[3]           
The defendants are the driver of the motor vehicle involved in the
accident, Terry Walkus, and the registered owner of the vehicle, Eva Walkus.
The defendants brought a third party claim against Robert and Darlene Walkus,
the claimant’s paternal grandparents who had custody of the claimant at the
time of the accident; and Jane Nelson, who was responsible for the claimant’s
care on the day of the accident. Although duly served, none of the third
parties entered an appearance or appeared at the trial to give evidence and
make representations to the Court.

[4]           
The claimant was not called as a witness at the trial because due to his
young age at the time, he has no memory of the events. The claimant called two
witnesses: (1) Mr. Gillman, the sole RCMP officer to investigate the
accident; and (2) Simon Paul, an eyewitness to the accident. The
defendants both testified about their recollection of the events. The
investigation conducted by the police and ICBC at the time of the accident did
not result in any written statements by the persons who witnessed the events
except Terry Walkus. However, there is no longer a record of Terry Walkus’
statement apart from some brief notes by Mr. Gillman. As a consequence, the
witnesses testified at the trial, some 17 years later, without the benefit of
any recording of their recollections at or near the time of the events.

[5]           
The defendants do not dispute that the claimant was injured when a 1995
Ford Aerostar minivan, driven by Terry Walkus with the consent of the
registered owner Eva Walkus, drove over his body as they left a stationary
position in the driveway adjacent to the front door of House 219. The defendants
also admit that immediately prior to, and at the time of the accident, the
claimant was in the driveway unattended and unsupervised by any of the adults
present. However, the defendants argue that they are not liable for the
injuries suffered by the claimant because they took all reasonable precautions
in the circumstances. Further, the defendants argue that the third parties are
100% responsible for the claimant’s injuries because they failed to properly
supervise the claimant who was a toddler at the time of the events. The
defendants urge the Court to accept their version of the events. The claimant
argues that regardless of whose version of the events is accepted, the
defendants failed to take the special precautions required when young children
are known or should have been known to be in the vicinity of the vehicle.

MATERIAL FACTS

[6]           
Mr. Gillman, who is now retired from the RCMP, had only a nominal
recollection of the events. Although he recalled receiving a telephone call
from the hospital concerning the accident, Mr. Gillman did not recall who it
was that he spoke to and has no record of the call to refresh his memory. Mr.
Gillman attended the scene of the accident sometime on May 1, 1997 and drew a
diagram based on what he observed and what he was told by witnesses. The
diagram is not to scale but it confirms that the van driven by Terry Walkus was
parked adjacent to the front door to House 219 and that while travelling in a
forward direction toward House 217, it struck the claimant and left a scrape in
the gravel driveway and a pool of blood nearby. This scrape and blood was
located somewhere between House 219 and House 217. The diagram accurately
depicts a circular gravel driveway that leads to House 219 and continues in a
forward direction to House 217 and then circles back to the main road.

[7]           
Mr. Gillman does not appear to have interviewed anyone other than Terry
Walkus; however, the statement he provided is no longer available. The only
record of the interview is contained in a facsimile Mr. Gillman sent to ICBC on
July 3, 1997. The brief summary of the interview is a single sentence, “I
started going forward and heard screaming, when I looked in my mirror, Anthony
was laying on the ground.” While there was some confusion in Mr. Gillman’s mind
that Terry Walkus was the claimant’s father, it appears from the facsimile that
this summary was derived from notes of an interview with the driver of the van.

[8]           
The only other record of the collision prepared by the RCMP is an
accident report completed by Mr. Gillman on May 1, 1997, which provides the
following description:

While vehicle was parked and
unloading Anthony Walkus, 2 YOA, crawled underneath the VEH. DRVR did not know
he was there and drove away, to hear Anthony crying in the middle of the
driveway.

[9]           
It is unclear who provided this statement of the events to Mr. Gillman.
However, it appears that of all the adults involved in the accident, only Terry
Walkus was interviewed by the RCMP.

[10]       
Mr. Paul is the claimant’s great uncle. Darlene Walkus, the claimant’s
grandmother, is Mr. Paul’s sister. In May 1997, Mr. Paul resided in House 219
in a ground floor room at the front of the house. On May 1, 1997, Mr. Paul was
home in his room when he heard a vehicle pull up to the front of the house. No
one else was home at the time. Shortly thereafter Mr. Paul heard the front door
open and he saw Jane Nelson enter carrying some groceries. She was alone and
Mr. Paul was certain that the claimant was not with her. Mr. Paul asked Ms.
Nelson if there was anything else to bring in and she replied that there was a
stroller in the van. Immediately thereafter Ms. Nelson proceeded up the stairs
to the kitchen.

[11]       
Mr. Paul walked to the front door, which was open, and saw Terry Walkus
carrying the stroller. The van was parked parallel to the front of House 219
about eight feet from the door. The passenger side of the van was facing the
front door and the front end of the van faced in the direction of House 217.
Mr. Paul testified that when he went to the front door, he saw the claimant
playing with a ball near the front door and toward the rear of the passenger
side of the van. There was no one playing with the claimant at the time and no
adult was supervising his play. Mr. Paul testified that he took the stroller
from Terry Walkus and placed it in the basement of House 219. The basement was
only a few steps from the front door and on the same level.

[12]       
Mr. Paul returned to the front door, which was still open, to check on
the claimant. He saw the claimant attempting to get his ball from underneath
the van. The claimant was under the van at that time near the passenger side
sliding doors. At the same time, Mr. Paul saw that Terry Walkus was in the
driver’s seat and preparing to drive away. As Terry Walkus drove forward, Mr.
Paul hollered out to him to stop. The van stopped shortly after he hollered but
it was too late. The claimant lay under the van and Mr. Paul heard him making
noises. After this point in time, Mr. Paul has no memory of the events because
he went into shock at the sight of the claimant lying injured under the van.

[13]       
In cross-examination, Mr. Paul acknowledged that he is an alcoholic and
that there are some events from May 1, 1997 that he does not recall.
Specifically, after he saw the claimant was injured, Mr. Paul has no recollection
of what occurred. He denied drinking alcohol on the day of the accident and
testified that he was sober at that time of his life. Mr. Paul also denied
ingesting any drugs on the day of the accident.

[14]       
Mr. Paul testified in cross-examination that Ms. Nelson was looking
after the claimant on May 1, 1997 and had been with the claimant all day. Mr.
Paul denied that he went outside to get the stroller from the van; he testified
that he remained at the front door. Mr. Paul was certain that he did not help
unload the van, but he could not recall whether Ms. Nelson made another trip to
the van for groceries. While Mr. Paul recalled noticing the van’s engine was
running when he was at the front door, he did not know whether the engine had
been on the entire time it was stationary at the front door of House 219. He
estimated the van was present at the house approximately ten minutes. Mr. Paul
testified that the claimant could not have come inside the house after Ms.
Nelson went up the stairs because it was only seconds later that he was at the
front door observing the claimant playing outside. Mr. Paul agreed that he did
not inform Terry Walkus that the claimant was playing beside the van when he
took the stroller from him. Mr. Paul denied that he closed the front door to
the house after taking the stroller from Terry Walkus.

[15]       
Eva Walkus is the claimant’s paternal aunt. On May 1, 1997, she was in a
common law relationship with Terry Walkus and was the registered owner of the
van that he drove on that day. Earlier in the day, she and Terry Walkus were
shopping at Overwaitea in Port Hardy with their infant daughter, Erica. While
shopping they met Ms. Nelson who was caring for the claimant while at the
store. They agreed to give Ms. Nelson and the claimant a ride back to House
219. Eva Walkus sat in the front passenger seat beside Terry Walkus who drove.
Ms. Nelson, the claimant and Erica sat in the middle seat. Erica was in an
infant car seat.

[16]       
When they arrived at House 219, Terry Walkus parked the van parallel to
the front door facing House 217. Eva Walkus testified that Terry Walkus turned
off the engine for “a bit” while Ms. Nelson got out of the van with the
claimant and unloaded her groceries. Eva Walkus testified that neither she nor
Terry Walkus exited the van while it was being unloaded.

[17]       
When the van pulled up to House 219, Eva Walkus testified that she saw
Mr. Paul in the upstairs window. After Ms. Nelson exited the van through the
driver’s side door, Eva Walkus testified that she saw Ms. Nelson open the front
door and take the claimant inside with her. Immediately thereafter Eva Walkus
observed the claimant through the open front door. He was playing with a ball
near the front door. Thereafter Eva Walkus did not have a good recollection of
what occurred because she became preoccupied with nursing Erica in the front
seat of the van. Eva Walkus testified that she did not pay attention to where
anyone was or what they were doing while she nursed Erica. While she did not
see the claimant go back outside with or without the ball, Eva Walkus was
unable to say if Mr. Paul helped with the groceries or whether Ms. Nelson made
other trips to the van for groceries or a stroller. She did not recall there
was a stroller to unload. Eva Walkus was also unable to say whether the front door
to House 219 was open while the van was being unloaded, but was certain that it
was closed when the van had been fully unloaded and she saw no one outside when
they departed.

[18]       
Eva Walkus estimated that the van was parked at House 219 for no more
than five minutes. Although she testified in direct that she saw Mr. Paul and
Ms. Nelson re-enter the house and close the front door, in cross-examination
she admitted that she was not paying attention to people going into and out of
the house while nursing Erica. She also agreed that when the van drove away,
she was not looking around to see if anyone was outside of the house.

[19]       
Eva Walkus testified that Terry Walkus was normally careful to look in
his mirrors before driving forward and did so on this day. They drove only a
foot when they felt and heard a “bump”. Right after the bump, Terry Walkus
stopped the van. She left the van on the passenger side and at the rear
passenger side she observed the claimant under the van. He was crying and there
was blood on his head. In cross-examination, Eva Walkus testified that she saw
a ball near where the claimant was lying. It was the same ball that she saw him
playing with earlier. When she first saw the claimant, Eva Walkus saw no one
else except Terry Walkus but she cannot recall who came out after finding the
child. She testified that Terry Walkus exited the van on his side and, when he
saw the claimant, Terry Walkus picked him up and they drove the child to the
hospital. Her recollection of the events after seeing the claimant injured
under the van is unclear as she was in shock.

[20]       
In cross-examination, Eva Walkus confirmed that the only reason they
were at House 219 was to drop off Ms. Nelson and the claimant. She also
confirmed that when the claimant was inside the front entrance he was playing
with a ball; however, Eva Walkus did not know where the claimant got the ball.
She also agreed that the claimant did not go upstairs with Ms. Nelson; he
remained in the front entrance while Eva Walkus watched. Although she testified
that Ms. Nelson came back down the stairs to retrieve more groceries from the
van, Eva Walkus agreed that she could not say how many trips were made because
she was not paying any attention to what was going on outside of the van. She
also agreed that Ms. Nelson may have made only one trip to the van for
groceries. Eva Walkus acknowledged that when she saw the claimant playing with
the ball at the front entrance he was alone and unsupervised. Eva Walkus agreed
that had she been watching the door, she could have seen the claimant come out
because nothing obscured her view. She also agreed that had she looked around
she could have seen that the claimant was still outside when they were leaving
but she did not do so. In re-examination, Eva Walkus testified that if the
claimant was under the van or behind it she would not have seen him unless she
got out of her seat.

[21]       
Terry Walkus testified that in May 1997 he believed that the claimant
was in the care of his paternal grandparents and that they lived on the reserve
at House 219. He also resided on the reserve with Eva Walkus and their two
children. Earlier in the day on May 1, 1997, Terry Walkus was shopping for
groceries with Eva Walkus and their infant daughter. Eva Walkus asked if he
could give Ms. Nelson a ride home because she was at the store shopping with
the claimant. Although Ms. Nelson and Terry Walkus became friends in later
years, at the time she was only a friend of Eva Walkus. Terry Walkus did not
know Ms. Nelson very well in May 1997.

[22]       
Terry Walkus did not recall where Ms. Nelson and the claimant sat in the
van. He drove the van to the driveway entrance to House 219, travelled in a
forward direction down a slight downhill slope, and parked with the rear of the
van as close as possible to the front door to make it easier to unload. Terry
Walkus testified that he saw Ms. Nelson exit the van with the claimant; he
testified that she held the child’s hand and walked the claimant into the house
before unloading any groceries. At that time he saw the claimant standing in
the front entrance alone. After this Terry Walkus did not know where the
claimant went. In cross-examination, Terry Walkus agreed that during his
examination for discovery he testified that Ms. Nelson was not holding the
child’s hand when they entered the front doorway.

[23]       
Before she exited the van, Terry Walkus asked Ms. Nelson if she required
assistance with the groceries but she said she would get someone to help her.
As a consequence, Terry Walkus testified that he did not leave his seat in the
van. He denied bringing the stroller into the house.

[24]       
Terry Walkus testified that he saw no one at the front door when he
parked because he was looking ahead of the van. However, later while parked he
observed Mr. Paul come out of the house and help unload the groceries. Although
the front door was open while they unloaded the groceries, Terry Walkus did not
pay any attention to where the claimant was or what he was doing after Terry
Walkus saw him standing alone in the front entrance. Terry Walkus believed that
Mr. Paul and Ms. Nelson made more than one trip to the van for groceries, but
he did not recall how many trips they made. Terry Walkus also could not recall
if Eva Walkus was nursing Erica when the groceries were being unloaded or
whether she had left the van to move Erica into the front seat to nurse her.

[25]       
Terry Walkus testified that he never looked back after seeing Ms. Nelson
take the claimant into the house. There was nothing obstructing his view of the
front door and he could have seen it through the sliding doors of the van if he
had attempted to observe it. Terry Walkus testified that there was no
conversation with Mr. Paul or Ms. Nelson while they unloaded the van and
essentially he did not pay attention to what they were doing. Terry Walkus did
not know who closed the tailgate, but after he heard it close he assumed the
unloading was complete. He did not see either Ms. Nelson or Mr. Paul go back
into the house after they had finished unloading the van; however, when he
looked back at the front door he was certain that it was closed.

[26]       
Before leaving, Terry Walkus checked his mirrors, did shoulder checks
and saw no one around the van. He assumed that everyone, including the
claimant, was inside. Terry Walkus testified that even doing these checks he
would not be able to see anyone who was in the rear of the van, under the van
or on the ground near the rear of the van. He did not think to get out of the
van to check for the claimant because he assumed the claimant was inside the
house and had not come out during the unloading process.

[27]       
Terry Walkus started the engine and drove forward a short distance. He
felt a bump towards the rear of the van and immediately stopped. He exited the
van from the driver’s side and heard crying coming from the back of the van.
Terry Walkus denied that Mr. Paul called out to him as he was driving away and
his window was down slightly for fresh air. He walked to the rear of the van.
He saw the claimant lying on the driveway a very short distance from the rear
of the van. He denied that the child was underneath the van or that he saw a
ball close by. The child was positioned about mid-licence plate in relation to
the van rather than on the passenger side as Eva Walkus testified.

[28]       
Upon seeing the blood on the claimant’s head Terry Walkus picked him up
and felt sick. He gave the child to Eva Walkus and drove him to the hospital.
He testified that there was no one else outside when this occurred. In
cross-examination, Terry Walkus acknowledged that he did not recall if Mr. Paul
was present after the accident. He was not looking around when he found the
child and agreed that Mr. Paul could have been there. Terry Walkus testified
that he did not see Mr. Paul at the front door when he left.

[29]       
Terry Walkus denied talking to a police officer on the day of the
accident and cannot recall if he was interviewed at a later date by either the
RCMP or a representative from ICBC.

[30]       
In cross-examination, Terry Walkus agreed that there are blind spots
from the driver’s seat to the rear of the van but he did not get out of the van
to check to see if the claimant was playing in these spots. Terry Walkus agreed
that he was unsure how far from the van the claimant was after the accident and
that he was unsure of how long he waited at House 219 while the groceries were
unloaded. He estimated it to be five to ten minutes. Terry Walkus agreed that
he had an unobstructed view of the front door (he later clarified this was
looking backward over his shoulder) and he could have seen people coming and
going from the house had he been paying attention. Terry Walkus testified that
he saw no reason to keep watching the front door of the house; he waited for
the van to be unloaded and when he saw that the van doors were closed, he
checked the mirrors and drove away. He agreed that he did not sound the horn or
ask anyone where the claimant was before leaving. Terry Walkus testified that
while he saw Ms. Nelson take the claimant into the house, he paid no attention
thereafter to what the adults in the house did or where the child went.

ARGUMENT

[31]       
The claimant argues that Terry Walkus was required to take special
precautions when operating a motor vehicle when he knew or ought to have known
that there was a young child nearby. In this case, the claimant argues that
Terry Walkus chose not to pay any attention to the whereabouts of a two-year-old
child while his van was being unloaded and when he prepared to leave the
residence. On either version of the events, Terry Walkus knew that the claimant
was unsupervised while the adults were busy unloading groceries from the van.
Had he kept a proper lookout, Terry Walkus would have seen the claimant playing
outside near the van when it was time to depart. In failing to take these
special precautions, the claimant argues that Terry Walkus was negligent and
Eva Walkus is vicariously responsible as the owner of the vehicle.

[32]       
Although a private driveway is not included within the definition of a
highway for the purpose of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
[MVA], the claimant argues that both the common law and the MVA
impose a duty on drivers to take extra precautions when children are on or near
the roadway. Section 181(c) of the MVA expressly mandates a driver to,
“observe proper precaution on observing a child … on the highway.”

[33]       
The claimant argues that the facts of this case are very similar to the
facts in Williams (Guardian ad litem of) v. Yacub (1995), 14 B.C.L.R.
(3d) 291 (C.A.) [Williams]. In this case, the B.C. Court of Appeal
confirmed a higher duty on drivers who are operating motor vehicles in the
vicinity of children. This duty to take greater care around children was
confirmed in Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 at 319
(B.C.C.A.) [Chohan], where the court indicated that a driver must be
constantly vigilant for children playing on the streets in residential areas.
This higher standard of care was also articulated in Bourne (Guardian ad
litem of) v. Anderson (1997), 27 M.V.R. (3d) 63 at paras. 55, 61
(B.C.S.C.) [Bourne]. The precautions a driver must take when he knows
the area in which he is driving is frequented by children are also discussed in
Clint (Guardian ad litem of) v. McKeigan (1998), 55 B.C.L.R. (3d) 238 at
paras. 14-15 (S.C.).

[34]       
Further, the claimant argues that while a caregiver may share some
responsibility for an accident involving a child passenger, the driver cannot
escape liability by blaming the parent: Galaske v. O’Donnell, [1994] 1
S.C.R. 670 at 689.

[35]       
The claimant urges the Court to accept Mr. Paul’s version of the events
as a disinterested bystander. The claimant says that Terry Walkus’ evidence was
not credible and was inconsistent with his examination for discovery on
significant points. If the Court accepts Terry Walkus’ evidence, the claimant
says that this driver chose not to pay attention to a young child knowing he
was not being supervised by the adults present and with knowledge that the
front door to the house remained open for five to ten minutes while the van was
unloaded. In these circumstances, to fail to ascertain the precise whereabouts
of a two-year-old child before setting the van in motion was negligent.

[36]       
The defendants argue that the Court should prefer their evidence over
Mr. Paul’s and draw an adverse inference due to the claimant’s failure to call
Ms. Nelson as a witness. Further, based on the defendants’ evidence, it is
argued there was no reason for Terry Walkus to believe that the claimant was
outside the house and in the vicinity of the van. By checking his mirrors and
performing a shoulder check, the defendants argue that Terry Walkus did all
that was reasonable in the circumstances to meet the standard of care of a
reasonable driver.

[37]       
The defendants admit that Terry Walkus owed a duty of care to the
claimant because it was within his reasonable contemplation that negligent
operation of the van had the potential to cause harm to the child: Simpson
v. Baechler, 2009 BCCA 13 at para. 28 [Simpson]. However, the
defendants maintain that the more onerous standard of care does not apply because
Terry Walkus had no reason to believe that the claimant was outside of the
house when he drove away. Moreover, the defendants argue it was reasonable for
Terry Walkus to believe that Ms. Nelson was taking steps to ensure that the
claimant was safe.

[38]       
The defendants argue the facts of this case are very similar to the
facts in Aiken v. Van Dyk, 2001 BCSC 1217, aff’d 2002 BCCA 671 [Aiken],
where a garbage truck driver was not found liable for backing into a young
child. While the swamper who assisted the driver was found liable for not
keeping a proper lookout for the children nearby, the father of the child was
found 80% liable for the injuries caused in the collision.

[39]       
The defendants argue that Terry Walkus took the precautions necessary in
the circumstances and the standard of care did not require him to exit his
vehicle to check for hazards. Further, the defendants argue that measures short
of getting out and checking whether the claimant was under the van would have
been ineffective in any event. They argue that evidence the claimant was run
over by the van is not enough to establish negligence: Christensen v. Gerber,
2007 BCSC 1397 at para. 55.

[40]       
The defendants argue that Ms. Nelson had primary responsibility for
ensuring the claimant’s safety and she failed to take reasonable steps to
ensure he was safe. The defendants argue that Darlene and Robert Walkus are
vicariously liable for entrusting the care of the claimant to Ms. Nelson. Their
liability should be assessed at 100%.

DECISION

[41]       
The defendants acknowledge a duty of care towards the claimant based
upon reasonable foreseeability; that is, there was a sufficiently close
relationship between the defendants and the claimant that in the reasonable
contemplation of Terry Walkus, as the driver, carelessness on his part may
cause harm to the claimant. I find that this admission is an acknowledgment
that at the time of the accident the claimant was in sufficiently close
proximity to the van that Terry Walkus owed him a duty of care regardless of
whether he assumed the child was inside the house.

[42]       
The question then becomes what was the standard of care and whether
Terry Walkus took steps to meet that standard. The content of the duty of care
will vary with the circumstances and is defined by what steps a reasonable
person would have taken in those circumstances: Simpson at para. 31,
citing Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 21.

[43]       
Turning to the evidence, while there are gaps in Mr. Paul’s recollection
of the events, I find his testimony should be preferred over the defendants’
evidence. In my view, the defendants’ evidence was contrived and based largely
on a reconstruction of the events after the fact. While neither of the
defendants was paying attention to what transpired after they parked in front
of House 219, and had little recollection of the actions and whereabouts of the
persons in and about the van while it was being unloaded, surprisingly they
both had a clear recollection of the door to the house being shut and no one
remaining outside when they departed. A selective recall of only those events
that tend to support their defence detracts significantly from the reliability
of their evidence. Moreover, Eva Walkus testified that she was not looking
around for anyone when they departed and Terry Walkus was focused on checking
his mirrors and starting the van.

[44]       
In terms of accuracy, it is far more likely that Mr. Paul’s observations
of what occurred from his vantage point at the front door of the house are more
reliable than the defendants’ who were otherwise occupied while they sat in the
front seat of the van waiting for the vehicle to be unloaded. Although there
was some suggestion that Mr. Paul was biased towards the claimant, I found he
gave his evidence in a straightforward manner and readily admitted matters that
he could no longer recall due to the passage of time. Nothing in his demeanour
suggested that he was being less than candid with the Court. On the other hand,
the defendants were not independent witnesses and have a motive to give self-serving
evidence.

[45]       
Mr. Paul testified that the claimant was playing with a ball outside of
the house and towards the rear of the van while the groceries were being
unloaded. No one was supervising him. Although in some respects Eva Walkus’
evidence is not consistent with Mr. Paul’s, I find her testimony supports key
points in Mr. Paul’s version of the events. She observed the claimant playing
with a ball in the front entrance to the house. He was alone. She observed the
front door was open while the groceries were being unloaded from the van. She
observed the ball near the child when he was found underneath the van. It is
thus apparent that the claimant was in close proximity to the van and playing
with a ball while no adult was providing supervision. Mr. Paul saw the claimant
and Eva Walkus saw the claimant; he was there to be seen.

[46]       
Whether or not Terry Walkus left the van, I accept Mr. Paul’s testimony
that when he returned to the front door after putting the stroller away he saw
the claimant underneath the van attempting to retrieve his ball. His
recollection is supported by Eva Walkus’ testimony that she found the claimant
underneath the van after the accident a few seconds later and his ball was
close by. Their recollection is preferred over the inconsistent evidence of
Terry Walkus that the child was behind the van and there was no ball nearby. I
note that Terry Walkus could not recall precisely where he first saw the child
and only believed the claimant was behind the van because on a reconstruction
of the events, Terry Walkus did not recall reaching under the van to pick him
up.

[47]       
I do not accept the defendants’ evidence that the front door was closed
when they departed in the van and prefer Mr. Paul’s evidence that he was
standing in the open doorway calling out to Terry Walkus to stop the van.

[48]       
The defendants argue that the Court should draw an adverse inference
because the claimant failed to call Ms. Nelson as a witness. Ms. Nelson is a
third party in the action; the defendants claim that she is 100% liable for the
injuries caused to the claimant because she failed to properly care for the
child at the time of the accident. She is a person adverse in interest to the
defendants.

[49]       
In Tower Waterproofing v. Mondiale Development Ltd., 2013 BCSC
1772 at paras. 22-23, Savage J. (as he then was) provided the following
summary of the law on drawing an adverse inference for failure to call a
witness:

[22]      It is a longstanding principle of law that an
adverse inference may be drawn if, without sufficient explanation, a litigant
fails to call a witness who might be expected to give supporting evidence: Buksh
v Miles, 2008 BCCA 318 at para. 31, 296 D.L.R. (4th) 608. However, as the
failure to call a witness may reasonably be open to different interpretations,
an adverse inference should only be drawn when it is warranted in light of all
the circumstances: Davison v Nova Scotia Government Employees Union,
2005 NSCA 51 at para. 73, 231 N.S.R. (2d) 245.

[23]      Generally, an adverse
inference should only be drawn in regard to the non‑production of
witnesses whose testimony would be superior in respect of the facts to be
proved: Bronson v Hewitt, 2010 BCSC 169 at para 329, 58 E.T.R. (3d) 14. However,
an adverse inference should generally not be drawn where the witness is equally
available to both parties: Zawadzki v Calimoso, 2011 BCSC 45 at para
149.

[50]       
While the claimant makes no specific claim of negligence against Ms.
Nelson, she is not an independent witness and has a motive to give self-serving
evidence in the trial. Ms. Nelson’s evidence would not be superior to Mr.
Paul’s, as she was likely in the upstairs of the home during the events giving
rise to the accident. Moreover, Ms. Nelson is now a friend of Terry Walkus.
Thus she was equally available to him as a witness. In these circumstances,
there are other explanations for a decision not to call Ms. Nelson than an
assumption that her recollection of the events would not support the claimant’s
case.

[51]       
In summary, I find that Terry Walkus drove Ms. Nelson and the claimant
to House 219 on May 1, 1997. Terry Walkus parked close to the front door of the
home and Ms. Nelson left the van with the claimant who remained outside playing
with a ball. The front door remained open while groceries and a stroller were
unloaded from the van. Terry Walkus either got out briefly and gave the
stroller to Mr. Paul, or he remained in the driver’s seat paying no attention
to what was occurring while he waited for the van to be unloaded. When they
were about to depart in the van, Mr. Paul was standing at the open doorway. He
saw the claimant under the van attempting to retrieve his ball. He called out
to Terry Walkus to stop the van, but they did not hear him and proceeded to
drive away. Although Terry Walkus may have checked his mirrors and checked over
his shoulder, he did not question any of the adults regarding the whereabouts
of the claimant or exit the van to determine whether the child was in a
position of danger. Terry Walkus knew that he could not see a child at the rear
of the van or on the ground near the rear of the van unless he exited his
vehicle. Nor could he see a child underneath his van from a sitting position in
the front seat of the van. Lastly, Terry Walkus was aware that the claimant was
not being supervised by an adult while the van was being unloaded.

[52]       
The presence of children on or near the roadway gives rise to a duty to
take special precautions due to the unpredictability of the actions of
children. This test is cited with approval in Williams at para. 8:

The appellant says the trial judge was in error. He refers to
Underhill v. Louis, Unreported, 19 December 1986, New Westminster
Registry No. C840586 (B.C.S.C.), where the 11-year-old plaintiff failed in her
claim against the driver as the driver had taken the necessary reasonable
precautions in the circumstances of that case. The trial judge in Underhill
v. Louis followed a judgment of this court in O’Brien v. Mrakic,
Unreported, 13 September 1984, Vancouver Registry No. CA830176 (B.C.C.A.)
[reported [1984] 6 W.W.R. 667]. In that case Mr. Justice Macfarlane, speaking
for the court, said at p. 4 [p. 669]:

As I understand counsel, they do not disagree that the test
to be applied is as follows: knowing that the actions of children are
unpredictable, a driver has a duty to take reasonable precautions for the
safety of a child on or near the highway.

[53]       
The same test was applied by the B.C. Court of Appeal in Chohan
at 319:

…There is, of course, a need for constant vigilance for
children on the roads, especially in suburban areas, for the very reason that
they cannot be expected always to act with the same care that is expected of
adults.

Once observed in a dangerous
situation, children must be given special attention, so that any precautionary
or evasive action indicated will be taken in time.

[54]       
Hood J. applied this formulation of the test in Bourne at para. 55:

In my opinion, once the presence
of a child or children on a road is known, or should have been known, to the
driver of a vehicle proceeding through a residential area where children live,
that driver must take special precautions for the safety of the child or
children seen, and any other child or children yet unseen whose possible
appearance or entrance onto the road is reasonably foreseeable. The precautions
include keeping a sharp look out, perhaps sounding the horn, but more
importantly, immediately reducing the speed of the vehicle so as to be able to
take evasive actions if required.

[55]       
There is no doubt that Terry Walkus did not see the claimant immediately
prior to the collision; however, the question is whether he took precautions to
ensure the claimant’s safety that a reasonable person would have taken in the
circumstances. Terry Walkus was in a residential neighbourhood and was parked
immediately in front of a home that he was familiar with. He knew that the
claimant was only two years old and had been a passenger in his vehicle a few
minutes before the accident. Terry Walkus knew that the claimant was in close
proximity to the van while it was being unloaded. He also knew that the child
was not being supervised. Further, had Terry Walkus kept a proper lookout while
the van was parked beside the front door to House 219, he would have seen the
claimant playing with a ball, which he ought to have known could bounce
unpredictably. When Terry Walkus left his parking spot in the driveway, the
front door to House 219 was open and Mr. Paul was standing in the doorway. The
child was not with Mr. Paul and Terry Walkus had no idea where he might be.

[56]       
In these circumstances, it was incumbent on Terry Walkus to determine
where the child was before he drove away from the house. Children playing with
a ball in close proximity to a motor vehicle create a hazard that Terry Walkus
knew or ought to have known created a risk of harm. Had he kept a sharp lookout
for the claimant while the groceries were being unloaded, this would have
satisfied the standard of care. However, having paid little attention to the
child or the comings and goings of the adults, and consequently having no
knowledge of where the child was, Terry Walkus had a duty to take additional
steps to locate the child to ensure his safety. He could have honked the horn
to get Mr. Paul’s attention and questioned him about the claimant’s
whereabouts. He could have asked Eva Walkus if she had seen the claimant. He
could have exited the vehicle and inspected the perimeter of the van to ensure
the child was not in a dangerous position.

[57]       
The defendants rely upon Aiken in support of their argument that
all reasonable steps were taken in the circumstances. They argue that their
liability should be determined based on the same criteria applied to the truck
driver in that case. The defendants say they are not subject to the standard of
care applicable when there is a known hazard posed by children in the vicinity
because they reasonably believed that Ms. Nelson would ensure the safety of the
child. However, I have found that Terry Walkus knew or ought to have known that
the child was unsupervised playing with a ball in close proximity to the van.
He was thus alerted to the potentially dangerous situation. In my view, Terry Walkus’
liability is based more clearly on the standard of care applied to the swamper
in Aiken.

[58]       
In the case at hand, Terry Walkus drove forward without any attention
being paid to the obvious risk posed to the claimant in the circumstances. The
claimant was there to be seen if Terry Walkus had kept a proper lookout. Having
failed to be vigilant while the groceries were being unloaded, and as a result,
having no knowledge of where the child was, and having no assurances from the
circumstances that the claimant was safely in the house, I find that Terry
Walkus failed to take reasonable steps to prevent causing harm to the claimant.

[59]       
This is not a case where the driver of a vehicle is a stranger to the
child or is simply not expecting a child to be in close proximity to the
vehicle. Terry Walkus was at House 219 solely to drop off the claimant and Ms.
Nelson. He knew or ought to have known that leaving a two-year-old child to
play unsupervised in close proximity to his van created a very dangerous
situation that called for special precautions. Checking in his mirrors and
doing a shoulder check was not sufficient in the circumstances. A reasonable
person in these circumstances would have ascertained the whereabouts of the
infant child before leaving a stationary position.

[60]       
Having concluded that Terry Walkus was negligent, and as a consequence
of s. 86(1) of the MVA, Eva Walkus vicariously liable, I must
address the contributory negligence of Ms. Nelson and the grandparents. Turning
to the grandparents first, there is no evidence that they were at House 219
when the accident occurred. There is also no evidence as to how Ms. Nelson came
to be caring for the claimant on May 1, 1997. Was it the child’s father who
asked his girlfriend to care for the claimant or was it the grandparents?
Lastly, there is no evidence that Ms. Nelson was generally an irresponsible
adult who should not reasonably have been placed in charge of the claimant. In
these circumstances, I cannot find any contributory negligence has been proven
against the grandparents.

[61]       
Turning to Ms. Nelson’s liability, the Negligence Act, R.S.B.C.
1996, c. 333, s. 4 provides as follows:

4   (1)   If
damage or loss has been caused by the fault of 2 or more persons, the court
must determine the degree to which each person was at fault.

(2)   Except as provided in
section 5 if 2 or more persons are found at fault

(a)  they are jointly and severally
liable to the person suffering the damage or loss, and

(b)  as between themselves, in the absence of a contract
express or implied, they are liable to contribute to and indemnify each other
in the degree to which they are respectively found to have been at fault.

[62]       
In Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 277 (B.C.C.A.),
Lambert J.A. referred to the contributory negligence provisions of the Negligence
Act and said:

The words used are the words of
fault. The question that affects apportionment, therefore, is the weight of
fault that should be attributed to each of the parties, not the weight of
causation.

[63]       
In Arnold v. Teno, [1978] 2 S.C.R. 287 [Arnold], a
majority held that the contributory liability of a parent is to be considered
in view of the accepted standard of care by parents generally in the community.
In Faint (Guardian ad litem of) v. Costin, [1996] B.C.J. No. 613
(S.C.), Saunders J. (as she then was) describes the duty similarly at para. 19:

A parent has a duty to take
reasonable care not to expose their child to unreasonable harm: Laplante
(Guardian ad litem of) v. Laplante (1995), 8 B.C.L.R. (3d) 119 (B.C.S.C.);
Arnold v. Teno (1978), 83 D.L.R. (3d) 609 (S.C.C.). The parent must act as an
ordinarily reasonable parent in the circumstances.

[64]       
I regard Ms. Nelson as having the same duty of care as a parent;
she is a person who was responsible for the care and wellbeing of a small
child. She is a person who was given parental responsibilities towards the
claimant and accepted those responsibilities.

[65]       
The standard of care owed by a parent to a child has been held to be
that of a reasonably prudent parent and is to be considered in light of “…
the accepted standard of care by parents generally in the community.”: Arnold
at 312. It was further described by Taylor J.A. in LaPlante (Guardian ad
litem of) v. LaPlante, (1995), 8 B.C.L.R. (3d) 119 (C.A.) at para. 14:

A parent, or other person responsible for small
children, has, of course, a duty to take reasonable care not to expose them
to unreasonable risk of foreseeable harm. The test to be applied in determining
whether that duty has been discharged is an "objective" one in the
sense that the parent is expected to do, or not to do, that which, according to
community standards of the time, the ordinary reasonably careful parent would
do, or not do, in the same circumstances. But the test is "subjective"
to the extent that the reasonable parent must be put in the position in which
the defendant found himself or herself, and given only that knowledge which the
defendant parent had, when deciding what the reasonable parent in Mr.
LaPlante’s position would have understood or believed, and as a consequence
have done or not have done. Ms. McGee says that "error of judgment"
alone will not amount to negligence. That must, of course, be right, in the
sense that there may be several courses of conduct any of which a reasonably
careful parent might follow in a given situation, and it will be enough to
answer a claim in negligence that the course adopted by the defendant parent
was one of those which the reasonable careful parent might have taken, even
though events may, of course, have shown the choice to have been unfortunate.

[Emphasis added.]

[66]       
In Aiken, Powers J. found the father of the injured child 80%
liable for the accident. While the swamper was negligent because he failed to
see the child in a dangerous position, the father was in charge of the child
and was negligent in allowing the child to go near the truck. However, in Faint,
the parent was found 15% liable for the injuries to her child because she
failed to see the oncoming motorist and failed to take steps to ensure the
child did not skip onto the roadway. The motorist was found to bear the greater
fault for the accident because he was speeding in a narrow roadway.

[67]       
In my view, the circumstances of the case at hand fall somewhere between
those present in Aiken and in Faint. As in Aiken, Ms.
Nelson was the claimant’s caregiver on the day of the accident and she ought to
have been aware that permitting him to play with a ball unsupervised in the
vicinity of a parked vehicle created a dangerous situation. She clearly
breached the duty of care in the circumstances. On the other hand, Terry Walkus
had every reason to be concerned about the claimant’s safety because he knew
that the child was not being supervised and had been left in a vulnerable
position near his van. His failure to keep a proper lookout for the claimant
while the groceries were being unloaded, and his failure to determine the
child’s whereabouts before setting his vehicle in motion, were equally
contributory to the accident and the resulting harm caused to the claimant.

[68]       
Accordingly, I find that Ms. Nelson and the defendants are equally liable
and apportion liability equally as between the defendants and Ms. Nelson, as a
third party.

[69]       
I award the claimant costs against the defendants at Scale B and I award
costs at Scale B to the defendants as against the third party, Jane Nelson.

“Bruce J.”