Tag: Standard of Care when driving by children

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.

Supreme Court of Canada Confirms Heightened Standard of Care When Driving Near Children


Last week the Supreme Court of Canada released reasons for judgement discussing the standard of care for motorists driving near children.
In last week’s case (Anapolis County District School Board v. Marshall) the Plaintiff, who was 4 years old at the time, suffered “catastrophic” injuries when struck by a school bus.  His case was dismissed at trial with a Jury finding the motorist was not negligent.  The Nova Scotia Court of Appeal ordered a new trial finding the Judge’s charge to the Jury was confusing.  The School Board appealed further and in a split decision the Supreme Court of Canada upheld the trial result finding the Judge’s charge to the Jury was appropriate.
The following passage was included in the Judge’s charge to the Jury addressing the standard of care when driving near children:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.  Justice Cromwell provided the following reasons:
The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms.  Looking at the charge as a whole, this, in my respectful view, did not occur.  The misdirection may have given rise to an injustice.  I would therefore dismiss the appeal.

More on the Standard of Care When Driving Near Children


As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.
In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.
The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[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.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer