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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘Pedestrian Collisions’

Pedestrian Found 80% At Fault For Being Struck While Jaywalking

November 25th, 2018

Reasons for judgement were published this week by the BC Court of Appeal upholding a trial judge’s assessment of fault for a pedestrian/vehicle collision.

In the recent case (Vandendorpel v. Evoy) the Plaintiff was struck while crossing a street.  He was at a light controlled intersection.  He pressed the button to activate the pedestrian walk signal but did not wait for the signal to come on.  Instead, he proceeded to cross the street while the signal for traffic in his direction was still red.  The Defendant was driving marginally over the speed limit and entered the intersection on a fresh yellow light striking the jaywalking pedestrian.   At trial the plaintiff was found 80% at fault for the crash.  In upholding this result the BC Court of Appeal agreed with the following reasonsing of the trial judge:

[53]      While both parties failed in their respective duties of care, I find Mr. Evoy’s failure was much less significant than Mr. Vandendorpel’s. His negligence consisted of driving at a speed that was over the posted limit, even if it was only minimally above that limit (i.e., approximately 55 km/hr in a 50 km/hr zone) and doing so when the lighting and road conditions were less than optimal. Compared to this conduct, Mr. Vandendorpel’s failures were more serious. He was dressed in dark clothing, including a dark hooded pullover that was zipped up to the top. None of his clothing had any light reflective qualities. Counsel for Mr. Vandendorpel submits that wearing dark clothing is not in and of itself contributory negligence. That submission is correct, but Mr. Vandendorpel’s failures are greater than simply the clothing he was wearing. He was also wearing headphones and listening to music and that reduced his ability to hear any on-coming traffic. He also had to cross a five-lane roadway that spanned approximately 18 metres. Although he depressed the pedestrian control device, he only waited a second or so before he attempted to cross the roadway. He carelessly did so even though the pedestrian control signal was still red and the traffic control signals were still green. Mr. Evoy’s vehicle approached the Intersection from the north. That is the direction Mr. Vandendorpel was initially walking. The headlights of Mr. Evoy’s vehicle would have been visible from at least 100 metres away. Mr. Vandendorpel must not have looked north on Sooke Road as he began to cross the roadway because he did not see the headlights of Mr. Evoy’s vehicle until it was approximately 30 metres away from him. That is, until the vehicle was just about to enter the Intersection. At that point, the pedestrian control signal was still red and the traffic control signal was yellow. Notwithstanding all of this, Mr. Vandendorpel chose to run across the path of the on-coming car instead of standing fast or retreating.

[54]      I remain of the firm opinion that Mr. Vandendorpel showed a reckless disregard for his duties as a pedestrian on the roadway and conclude that his degree of fault for the accident is greater than that of Mr. Evoy.

[55]      The case authorities counsel provided me with respect to apportionment have been helpful. Each party’s degree of responsibility is to be decided by assessing the risk their respective conduct created, the effect of that risk, and the extent to which each party departed from the standard of reasonable care (see: MacDonald (Litigation guardian of) v. Goertz, 2008 BCSC 394, aff’d 2009 BCCA 358).

[56]      In my view, the risk Mr. Vandendorpel created when he chose to walk and then run across Sooke Road, into the path of Mr. Evoy’s on-coming vehicle created a much more significant risk than Mr. Evoy driving at a speed marginally above the speed limit on a dark morning with a wet roadway. Moreover, I find the departure from the standard of care expected of Mr. Vandendorpel as a pedestrian was much more pronounced than the departure of Mr. Evoy from his duty of care as a driver of a motor vehicle.


Pedestrian Struck in Cross Walk Faultless for Collision

March 23rd, 2015

Reasons for judgement were released today addressing whether a pedestrian struck in a cross walk bared any responsibility for their collision.

In today’ case (Gulati v. Chan) the Plaintiff entered a crosswalk when the Defendant motorist coasted through a stop sign and struck the Plaintiff.  The Defendant admitted partial fault but argued the Plaintiff should shoulder 10-20% of the blame for failing “to avoid his on-coming vehicle which, he maintains, was a visible and foreseeable risk to her.”  In rejecting this argument and finding the Defendant fully at fault Mr. Justice Gaul provided the following reasons:

[23]         Mrs. Gulati says she looked to her right and left before entering the crosswalk. At that time, she did not see any vehicular traffic coming in her direction. When she was approximately half way across the crosswalk she saw Mr. Chan’s vehicle approaching the nearby intersection that was controlled by stop signs. According to Mrs. Gulati, the vehicle was approximately 4 to 5 car lengths away from her when she first saw it. To Mrs. Gulati’s surprise, the vehicle did not stop at the stop sign; instead it turned left and struck her while she was in the crosswalk.

[24]         Mr. Leverett was standing at the southern end of the crosswalk, directly in front of the stop sign for the intersection. He saw Mrs. Gulati exit the Mall and stand at the northern end of the crosswalk. He saw her look both ways and then proceed into the crosswalk. According to Mr. Leverett, there was no vehicular traffic in the vicinity when Mrs. Gulati began to cross the road. Mr. Leverett saw Mr. Chan’s vehicle approach the stop sign. It appeared to Mr. Leverett that Mr. Chan was not paying attention to what he was doing, because his vehicle coasted through the stop sign. Mr. Chan’s vehicle then accelerated and collided with Mrs. Gulati who was still in the crosswalk.

[25]         Constable Lorne Smith of the Surrey RCMP attended at the scene of the Accident shortly after it occurred. While he was there, he spoke with Mr. Chan. According to Constable Smith, Mr. Chan said he had been leaving the Mall’s parkade, had not seen Mrs. Gulati in the crosswalk and had collided with her when she suddenly appeared in front of his vehicle. The officer issued Mr. Chan a violation ticket alleging that he had been driving without due care and attention and had failed to yield to a pedestrian contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “MVA”). Mr. Chan did not dispute the violation ticket…

9]         I accept the evidence of Mrs. Gulati and Mr. Leverett with respect to how the Accident occurred. In particular I am satisfied that Mr. Chan was not paying attention when he was driving and that he did not bring his vehicle to a stop when he should have. Instead, without any notice or warning to Mrs. Gulati who was legally crossing the road, Mr. Chan proceeded through the stop sign and turned left, leaving Mrs. Gulati with no time to react and avoid the collision. It was not unreasonable for Mrs. Gulati to believe that Mr. Chan’s vehicle would stop at the stop sign and it cannot be said that a reasonable person would have anticipated his decision to breach the rules of the road in the manner that he did.

[30]         In my opinion, Mr. Chan is 100 percent liable for the Accident.


60/40 Liability Split After Pedestrian Steps in Front of Bus

July 29th, 2014

Corrected reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing fault between a pedestrian and a bus driver.

In today’s case (Whelan v. BC Transit) the Plaintiff pedestrian “was struck and had his foot run over by a BC Transit bus driven by the defendant Henry Kobbero, after Mr. Whelan had stepped onto the road to avoid some other pedestrians on the sidewalk.”

The bus was stopped shortly before the incident dropping off passengers and moved forward with the driver seeking to merge back with traffic.  Mr. Justice Schultes found both parties were to blame with the Plaintiff bearing the lion’s share of fault.  In reaching this decision the Court provided the following reasons:

[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.

[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk…

75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.


BC Court of Appeal Discusses Duties of Motorists and Pedestrians in a Parking Lot

March 19th, 2014

Reasons for judgement were released today by the BC Court of Appeal addressing the legal duties of both motorists and pedestrians while in a parking lot.

In today’s case (Russell v. Parks) the Plaintiff pedestrian was walking in a parking lot and was “about 6 feet into a a marked parking stall” when the Defendant backed his vehicle into the same stall and struck the Plaintiff.  At trial the the Court found the pedestrian was 2/3 at fault for the incident.  In overturning this to a 25/75 split in the pedestrians favour the BC Court of Appeal provided the following reasons addressing the parties duties:

[16]         In my respectful opinion, the trial judge erred in law by applying s. 179(2), rather than ss. 180 and 181, to the circumstances of this case. Madam Justice Rowles’ analysis in Loewen v. Bernardi, and the wording of s. 179, when viewed as a whole, describe a code of conduct for vehicles and pedestrians who are approaching or entering a crosswalk. Where, as in this case, there are no crosswalks, ss. 180 and 181 are more appropriate. Section 180 imposes a duty on the pedestrian to yield the right of way to a vehicle when crossing a highway at a point not in a crosswalk. Under the Motor Vehicle Act, a parking lot falls within the definition of “highway”. Mr. Russell was crossing through a parking lot and it is clear that he was not using a crosswalk, therefore s. 180 applies. Section 181 imposes a corresponding duty on a driver “to exercise due care to avoid colliding with a pedestrian on a highway.”  The standard of “due care” will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space. This approach is consistent with Bohati v. Jewell (1996) 84 B.C.A.C. 161, another “parking lot” case, where this court relied on what are now ss. 180 and 181 to apportion liability. Sections 180 and 181, rather than s. 179(2), have also been relied upon in lower court decisions involving parking lots: see Gray v. Ellis, 2006 BCSC 1808, and Davidson v. Donnelly, [1996] B.C.J. No. 800 (S.C.).

[17]         Even if Mr. Russell did leave a place of safety, the trial judge erred in his interpretation of s. 179(2) by considering only part of it. This provision has two components: a pedestrian must leave a place of safetyand this must be done so suddenly that it is “impracticable for the driver to yield the right of way.” The trial judge’s findings clearly indicate it was not impracticable for Mr. Parks to yield the right of way. He found that Mr. Parks could have stopped and avoided the accident had he been keeping a proper lookout (para. 34). In my view, s. 179(2) contemplates a situation where the pedestrian steps onto a path designated for pedestrians (such as a crosswalk) but in doing so steps immediately into the path of a moving vehicle that could not practicably yield the right of way in time. According to the trial judge’s findings, this does not describe the situation in which Mr. Russell and Mr. Parks found themselves.

[18]         Mr. Russell argues that if he was not in violation of the statutory obligation pursuant to s. 179(2), he is not contributorily liable. I would not disturb the trial judge’s finding that he breached his common law (and statutory) duty to exercise due care and that this contributed to his injuries. The trial judge found that Mr. Russell was looking down as he walked into the parking stall, and as a result, failed to take reasonable care for his own safety. There is no basis on which to interfere with this conclusion.

[19]         The next question is whether the apportionment of liability was grossly disproportionate to what this court would have ordered (see Moses, supra, para. 33). Each assessment will turn on the facts of the case. In this instance, Mr. Russell was looking down as he stepped over the barrier, and continued to look down as he took a few steps into the parking stall. Mr. Parks was aware that there were pedestrians in the area, entered the lot from a direction that required him to swing wide to enter a parking stall, changed his mind at the last minute in terms of which stall he would take, shoulder checked numerous times, and ended up driving forward when he was looking backward, striking Mr. Russell. Clearly both were at fault. However, finding that Mr. Russell was two-thirds responsible for the accident, in my respectful view, is grossly disproportionate to his fault. The trial judge was clearly influenced by the finding that Mr. Russell had breached his statutory duty under s. 179(2) of the Motor Vehicle Act by leaving a “place of safety”. As I have explained above, this finding was in error. Although Mr. Russell was looking down as he walked, he did not step off a curb or shoulder into moving traffic (which is what s. 179(2) is designed to prevent) and his fault should not be assessed as if he did.

[20]         In Loewen v. Bernardi, this court reduced a finding of liability against the pedestrian plaintiff from 25% to 10% on the basis that the plaintiff’s contribution was minor. In that case, the plaintiff was half-way through a marked crosswalk when he was struck by a vehicle. I would not characterize Mr. Russell’s degree of fault as “minor”. On the other hand, it was not the main cause of the accident. The main cause was the fact that Mr. Parks drove forward while he was looking backward. I would allow the appeal on this ground and apportion liability on the basis of 75% against Mr. Parks and 25% against Mr. Russell.

 


Rollerblader 10% at Fault Following Crosswalk Collision

February 28th, 2014

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a rollerblader and a vehicle.

In this week’s case (Chabot v. Shaube) the Plaintiff was rollerblading and entered an intersection in a marked crosswalk.  She had the right of way.  She passed 4 of 5 lanes when the Defendant motorist, who failed to see her, moved forward attempting a right had turn.  A collision occurred.  Despite having the right of way the Plaintiff was found 10% at fault for the collision due to her speed when crossing.  In reaching this division of fault Mr. Justice Brown provided the following reasons:

[30]         The defendant should not have rolled to a stop and proceed as she did, considering the traffic, the time of day and the marked crosswalk in front of her. Her passenger saw the plaintiff and called out a warning.

[31]         As for the plaintiff, once she chose to skate across the intersection, she should have skated at a pace that slow enough to allow her to stop as quickly as if she were walking or at most slowly jogging, which is, for all practical purposes, instantaneously, after allowing a moment to see and react. In other words, she departed from the standard of care of a reasonable person in similar circumstances. By skating at a fairly brisk jog, she failed to exercise sufficient care for her own safety when crossing a busy intersection during morning rush hour at UBC…

[34] The plaintiff was not walking. She was travelling considerably quicker than a pedestrian walking. She does not have to guard against every conceivable eventuality, or to assume a vehicle in the designated right turn lane might not respect her right of way. Only, considering the circumstances, to be more vigilant and to take reasonable precautions for her own safety, considering she was skating across the intersection, could not see traffic on the other side of the bus and could not stop as quickly as she could on foot.

[35] The law does not declare the plaintiff broke the law by skating across the crosswalk. Cyclists are obligated to dismount when they enter a crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. But the Motor Vehicle Act does not include roller blades in its definition of “cycle”, see s. 119(1) “cyclist”; they are pedestrians. Further, I appreciate inline skating is a popular way to get around in good weather. Some road skaters appear very adept and agile skaters. I accept the plaintiff was an experienced skater and that she knew how to stop properly on skates. She was not obliged to remove her skates to cross. But having chosen to skate across the crosswalk, she needed to take reasonable precautions for her own safety, commensurate with her speed and visibility of traffic beyond the stopped bus.

[36] As noted in Karran, “fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.” I find the plaintiff’s conduct falls within the range of a momentary or minor lapse of conduct, which nevertheless, carries with it the risk of foreseeable harm. Based on this finding, and the circumstance that she was always within a marked crosswalk, I apportion 90% fault to the defendant and 10% to the plaintiff.

 


Bus Driver Liable for Collision After Failing to Stop for Running Passanger

September 23rd, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a bus and a pedestrian attempting to catch it before it departed.

In last week’s case (Heyman v. South Cost British Columbia Transportation Authority) the Plaintiff was attempting to catch a bus which was stopped at a bus stop.   He ran towards it, approaching from its front, waving his hand in the air trying to get the motorists attention.  The bus driver closed the doors and put the vehicle into motion just as the Plaintiff approached colliding with his waving hand.   The impact caused him to spin around and fall to the ground. His ankle was run over by the rear of the bus and he also suffered a broken shoulder.

The bus driver argued there was a strict policy “that if a pedestrian is even one foot away from the bus stop when the doors close, the bus leaves“.  Mr. Justice Skolrood rejected this finding there was no such written policy noting that the written policy stated that “to arrive safely is more important than to arrive on time. The obvious safety of passengers, employees, travelers and pedestrians on the streets and highways must be given precedence over every other consideration.”

Mr. Justice Skolrood went on to note that in any event the bus driver was careless in departing when he did given the proximity of the pedestrian.  In finding both parties negligent in the incident the Court provided the following reasons:

[66]         The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman’s approach.

[67]         In my view, reliance on this alleged policy is no answer to the claim that Mr. Cooper breached the standard of care. I say alleged policy because it is not set out anywhere in writing, notwithstanding that West Vancouver Transit has in place an extensive policy manual setting out detailed operational practices and policies. That said, I have no reason to question Mr. Cooper’s evidence that drivers are instructed to leave once there is no one else waiting at a bus stop.

[68]         However, Mr. Cooper’s conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in Wang, the question is whether there was a real risk of harm that could reasonably be avoided.

[69]         In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver’s attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper’s part. Again, that is particularly so given the manner in which Mr. Heyman was approaching…

[84]         In the circumstances, I find that Mr. Heyman was 60% responsible for the accident and Mr. Cooper 40%.


Pedestrian 70% at Fault For Jaywalking Collision

September 20th, 2013

Adding to this site’s archived claims involving pedestrian collisions, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for an incident involving a pedestrian who was crossing a street outside of a crosswalk.

In this week’s case (Khodadoost v. Wittamper) the Plaintiff pedestrian started crossing McKay Avenue in Burnaby, BC two car lengths north of the intersection.  The defendant motorist was stopped in the curb southbound lane.  As the pedestrian stepped in front of the vehicle the Defendant started to drive forward as his light had turned green.

In finding the pedestrian 70% at fault for the incident Mr. Justice Betton provided the following reasons:

[13]         The incident occurred while the plaintiff was crossing McKay Avenue at Kingsway Avenue, in Burnaby, British Columbia. He had obtained a ride from a friend, Ms. Khaki-Khaljan, to the area. She pulled off to the right of the northbound lane of McKay Avenue approximately two car lengths north of Kingsway Avenue. When the plaintiff exited the vehicle, he began crossing McKay Avenue west and outside of the crosswalk but moving at an angle toward the crosswalk…

[18]         When the southbound traffic began to move forward, the defendant followed. The plaintiff at that time was adjacent to the front driver’s side corner of the defendant’s car. The defendant’s vehicle may have made a very slight contact with the plaintiff before the defendant initially applied his brakes. When he placed his foot on the brake pedal, however, his foot slid off the pedal allowing his vehicle to move forward, essentially in a second forward motion. At that time, there was contact between the plaintiff and the defendant’s vehicle, and the plaintiff fell or was knocked to the road…

[64]         There is no question that the plaintiff began his crossing of McKay Avenue outside of the crosswalk. That fact is, however, of limited relevance. What is particularly important is the condition of the pedestrian and traffic control signals, and the plaintiff’s positioning relative to the crosswalk as he moved past the center point of the road and across the southbound lanes.

[65]         I am satisfied on the evidence that by the time the plaintiff had begun to cross those southbound lanes, the traffic signal for southbound traffic was green. All of the evidence indicates that traffic generally, including the defendant, had begun to move. Neither the plaintiff nor the defendant commented specifically on the condition of the traffic signal, but it is the only logical inference from the evidence as a whole…

[77]         It is my conclusion that the plaintiff must bear the majority of the liability for the incident. I apportion liability 70 percent to the plaintiff and 30 percent to the defendant. An award of damages must be adjusted based on this division of liability.

 


Left Turning Driver Found 100% at Fault For Striking Pedestrian in a Marked Crosswalk

September 5th, 2013

Adding to this site’s archived judgement database addressing collisions involving pedestrians, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a left hand turning vehicle and a pedestrian.

In last week’s case (Han v. Chahal) the Plaintiff was walking in a marked crosswalk southbound across 72nd Avenue in Surrey, BC.  At the same time the Defendant motorist approached from the oncoming direction and attempted to turn left.  The Defendant struck the Plaintiff.   The Defendant conceded fault at trial but argued the Plaintiff was 25% responsible.  Mr. Justice Verhoeven disagreed finding the Defendant was solely to blame for this collision.  In reaching this conclusion the Court provided the following reasons:

[18]         I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes.  She testified that she had proceeded about four steps when she was struck.  The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane.  Ms. Chahal’s evidence about the accident details was generally vague.  However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act.  Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb.  I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle.  She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.

[19]         It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff.  The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped.  The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping.  This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”.  This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck.  Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not.  I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.

[20]         The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident.  There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision.  The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.

[21]         The defendants rely upon Brumm v. Inglis, [1997] B.C.J. No. 1181. However, that case is clearly distinguishable.  There, the plaintiff walked in front of the defendant’s vehicle as it was stopped at an exit from a driveway onto a busy street, waiting for a break in heavy traffic.  The plaintiff could see the driver of the vehicle.  She chose to walk in front of the vehicle, which pulled forward as she did so.  In this context, Mr. Justice Pitfield stated:

She knew of the defendant’s intended actions. She knew or should have known there was danger to her personal safety if she passed in front of the vehicle without first making eye contact with the defendant and the vehicle accelerated suddenly in an attempt to enter the busy flow of traffic.

[22]         The circumstances of the case at bar bear no resemblance to those in Brumm.  More specifically, in the case at bar, it cannot be said that the plaintiff “knew of the defendant’s intended actions” other than perhaps in a general way, nor can it be said that there was something that she realistically could or should have done or refrained from doing in consideration for her own safety.

[23]         I conclude that the defendants have not established that the plaintiff was contributorily negligent.  It follows that the defendants are fully liable for the accident.


Driver Fully At Fault For Striking Pedestrian Standing on Street Side of her Vehicle

July 23rd, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorist lost control in winter driving conditions.

In this week’s case (Lee v. Phan) the Plaintiff was struck by the Defendant’s vehicle as she was standing on the street side of her own vehicle.  The Plaintiff was retrieving groceries from her car and had to walk around the street side of her vehicle as there was a snow bank preventing her from walking to the sidewalk past the rear of her vehicle.  At the same time the Defendant was driving and was concerned the Plaintiff was going to jaywalk in front of his vehicle.   He hit his brakes and ended up steering into the plaintiff.  The Court found the Plaintiff was not about to jaywalk and the Defendant’s actions were negligent. In assessing fault fully with the Defendant Mr. Justice Blok provided the following reasons:

[50]         I find that Ms. Lee did not attempt to jaywalk across Renfrew Street, nor did she intend to do so.  There was no evidence to support this other than Mr. Phan’s impression that this is what “the shadow” seemed to be about to do.  I conclude that Mr. Phan’s impression was an erroneous one…

[56]         Both parties cited a number of cases involving collisions with pedestrians at crosswalks or collisions where wintery conditions were a significant factor.  In view of my finding that Ms. Lee made no attempt to cross Renfrew Street I do not find the crosswalk or jaywalking cases to be particularly helpful.  The winter driving cases establish little more than the general proposition that drivers should adjust their driving and use caution appropriate to the conditions…

[64]         Mr. Phan testified that he turned his vehicle into the snowbank because he felt this was his only option given his conclusion that Ms. Lee was about to jaywalk in front of him.  This, I have found, was an erroneous conclusion.  Had he continued straight ahead there would have been no collision.  Mr. Phan also seems to have been under the impression that one should never apply the brakes of a vehicle in icy conditions.  This is obviously wrong, as the appropriate response is to apply cyclical braking, as confirmed by the plaintiff’s engineer, Mr. Rempel.  For all of these reasons I conclude that Mr. Phan was negligent.

[65]         As for Ms. Lee, I am unable to accept the defendant’s suggestion that she ought to be found to be contributorily negligent.  She was not in a place that posed a hazard or obstruction to traffic, she was wearing a white coat and she was facing in the correct direction towards oncoming traffic.  The defendant has not established that Ms. Lee had any realistic opportunity to get out of the way.  I see no negligence on her part.

 


$130,000 Non-Pecuniary Assessment For Complex Pelvic and Knee Fractures

March 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.

In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk.  Although the Defendant disputed liability he was found fully liable for the collision.

The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries.  The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis.  In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons:

[46]         Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11.

[47]         Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively.

[48]         Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked.

[49]         Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg.

[50]         Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated…

[76]         In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.