Driver Found Faultless For Collision With Child on Kick Scooter
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a motorist and a child on a scooter.
In last week’s case (Adams v. Zanatta) the Plaintiff, who was 9 years old at the time, suffered serious injuries in a 2006 collision. The Plaintiff was travelling down a paved alley on a kick scooter. At the same time the Defendant was operating a vehicle. From the Defendant’s perspective the alley was obstructed from view because of a fence. The Plaintiff came from the alley and entered the roadway without yielding the right of way. A collision occurred. The Plaintiff sued for damages arguing the Defendant should have been more cautious in the circumstances. In dismissing the claim Madam Justice Brown provided the following reasons:
[17] I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard. To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.
[18] I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.
[19] Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue. He was aware of the obstructed view of the alley caused by the fence. He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street. Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour. I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams. At that point, Mr. Adams was just by the fence, coming out of the alley. Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.
[20] The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent. He was not traveling at an excessive speed for the circumstances. I am satisfied that he was driving very slowly…
[25] Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour. Mr. Adams was traveling quickly. I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling. Mr. Adams did not stop. As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.
[26] As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side. I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street. In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.
[27] Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:
Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway. Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably. Mr. Justice Taylor said this: “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” (my emphasis). This is especially so in suburban areas.
[28] As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue. As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty. A reasonably careful driver would not have done more.
For more on the Standard of Care for motorists driving near children you can click here for the Supreme Court of Canada’s latest comments on this topic.