Tag: Vedan v. Stevens

Driver Fully Liable Following Passenger Ejection From Box of Pick Up Truck

The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.
In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
The Court heard no evidence as to how the Plaintiff came to fall out.   At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box.  The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected.  The Plaintiff appealed this finding arguing there was no evidence to support this conclusion.  The BC Court of Appeal agreed and placed 100% of the blame on the motorist.  In doing so the Court provided the following reasons:

[14] A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches [1956] S.C.R. 787 at 793).

[15] In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck – whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.

[16] In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.

[17] I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.

Driver Liable to Passenger Ejected from Box of Truck

(Update November 2, 2011 – Note the below case was modified by the BC Court of Appeal with a finding that the motorist should be 100% at fault due to the absence of any evidence of contributory negligence)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, discussing the issue of fault when a passenger riding in the box of a truck is ejected and injured.
In today’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant “first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
Madam Justice Beames determined that the Plaintiff rose from a seated position in the course of the trip and then was ejected.  The court held that both the Plaintiff and the Defendant were at fault with the Defendant shouldering most of the blame.  Madam Justice Beames provided the following reasons:
[31] There is no question that the defendant was responsible for allowing the plaintiff and the other children to ride in the box of his truck. He did not have to allow the plaintiff to get into the box of the truck, and he had enough seats and seat belts, I find, inside the truck to accommodate all of his passengers, including the plaintiff…

[34] I find the defendant owed a duty of care to the plaintiff and that he breached that duty and failed to exercise a standard of care of a reasonable person in the same circumstances. That negligence was clearly causally connected to what happened to the plaintiff. The plaintiff would not have been injured had the defendant not allowed him to ride unrestrained in the box of his truck. It was foreseeable, in my view, that what occurred would or could occur.

[35] I turn now to the issue of contributory negligence on the part of the plaintiff…

[44] In the circumstances of this case, I would not find that the plaintiff was contributorily negligent simply by riding in the back, or the box, of the truck. He was allowed to be there by an elder from the Sun Dance ceremony which featured community, trust and respect for elders. However, I do find that the plaintiff was, by getting up from a seated position on the floor of the box in a moving truck, negligent in fact.

[45] Consequently, the defendant has proved contributory negligence…

[53] In all of the circumstances of this case, I apportion fault between them as follows: the plaintiff, 25 percent; the defendant, 75 percent.

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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.

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