Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.
In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter.  He pursued the shoplifter to his vehicle.  When confronted the shoplifter ran the plaintiff over and injured him.  The collision was described as follows:

[17]        The plaintiff described what happened.  When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle.  The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”.  He asked for the merchandise back.  The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.  

[18]        At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance.  His feet slid under the passenger-side door.  The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot.  He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go.  When he let go, the passenger-side door hit him.  As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle.  The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19]        The plaintiff attempted to get up.  However, a bystander said “I am not sure if you realize what just happened to you.  You should probably stay down”.  So he did.  First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident.  The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88]        I find that, in this case, the vehicle had not been started when the plaintiff approached it.  I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93]        Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable. 

[94]        Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support.  In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty.  The trial judge found no contributory negligence.  On appeal, the Ontario Court of Appeal found the officer to be 25% negligent.  However, on further appeal to the Supreme Court of Canada, that decision was reversed.  At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95]        Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.  

[96]        Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle.  I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.