Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC. He was travelling on the left side of the street. At the same time the Defendant was operating a school bus and driving in the opposite direction of travel. As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn. The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk. A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault. The Court found that both parties were equally at fault for the collision. In reaching this decision Mr. Justice Smith reasoned as follows:
[18] The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:
[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated 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 can not be expected always to act with the same care that is expected of adults.
[19] The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.
[20] Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.
[21] Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.
[22] However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.
[23] In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage: Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:
[25] The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:
Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …
[Emphasis in original; footnotes omitted.]
[24] The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:
[28] In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.
[25] Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult: see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.
[26] In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.
