BC Supreme Court Discusses Pedestrian Visibility in Negligence Claims
Reasons for judgement were released yesterday by the BC Supreme Court considering whether a pedestrian involved in a collision was at fault for not being visible enough to the motorist.
In yesterday’s case (Smaill v. Williams) the pedestrian was struck by a minivan while he was walking on a dirt road in dusk conditions. When he heard the vehicle approaching he “took a few quick steps to the side out of the travelled path of the road”. Unfortunately he could not get out of the way and was “thrown up onto the hood, striking his back and shoulders, and then was thrown to the ground on his hands and knees“.
The Defendant argued that the Plaintiff was partially at fault for the accident for wearing dark clothing, not having a flashlight and not wearing a reflective traffic vest. Madam Justice Russell rejected this argument and in doing so provided the following reasons:
 I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.
 I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.
 I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.
 I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.
 I find no contributory negligence on the part of the plaintiff.
The Plaintiff suffered some serious injuries to his spine which were expected to cause some permanent restrictions. In valuing the non-pecuniary damages at $100,000 the Court summarized the injuries and their effect on the Plaintiff’s life as follows:
 I accept the evidence of Dr. McKenzie. I found him to be a careful and persuasive witness. I accept his medical finding that the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an injury to the sacroiliac joint and that formerly asymptomatic disc bulges and protrusions became symptomatic as a result of his injuries. I accept that the plaintiff has proved on a balance of probabilities that the symptoms, including non-specific back pain that he currently suffers from, including disc protrusion, were caused by the first accident and the pain from those injuries was aggravated by the second accident.
 While none of the doctors could say with certainty that the disc problems were caused by the accident, this is not the standard required. Dr. McKenzie testified, and I accept, that it is more probable than not that they were caused by the injury. This is supported by the evidence of Dr. Dercksen who noted the injuries were more than normal degeneration for someone of the plaintiff’s age.
 Therefore, I agree with the plaintiff that, on a balance of probabilities, but for the negligence of the defendants, the plaintiff would not have sustained the injuries that he did, and the plaintiff has met the test for causation: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 18-28,  1 S.C.R. 333. ..
 As a result of these accidents, the plaintiff sustained significant injuries and suffered from a great deal of pain, for which he is entitled to recover damages. However, while I have the greatest sympathy for the plaintiff’s emotional suffering, there is evidence before this Court that this is a pre-existing condition from which the plaintiff had already been suffering and therefore this is not a ‘thin-skull’ situation. The defendants are not liable to compensate the plaintiff for a condition which was already manifest at the time of the accident.
 In light of the plaintiff’s suffering, and taking into consideration his pre-exisiting condition and its contribution to his chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.
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