Please click here for the original trial decision.

This liability ruling at trial was reversed by the Court of Appeal, who ruled that the motorist would be 75% to blame, rather than only one third, stating that the trial judge had erred in assessing the Plaintiff’s statutory obligations under the Motor Vehicle Act, which lead to a disproportionate finding on liability. The Court also allowed the appeal in part with respect to an award for future care. The Court of Appeal discussed the duties of driver and pedestrians with respect to parking lot accidents.

 

[16] In my respectful opinion, the trial judge erred in law by applying s. 179(2), rather than ss. 180 and 181, to the circumstances of this case. Madam Justice Rowles’ analysis in Loewen v. Bernardi, and the wording of s. 179, when viewed as a whole, describe a code of conduct for vehicles and pedestrians who are approaching or entering a crosswalk. Where, as in this case, there are no crosswalks, ss. 180 and 181 are more appropriate. Section 180 imposes a duty on the pedestrian to yield the right of way to a vehicle when crossing a highway at a point not in a crosswalk. Under the Motor Vehicle Act, a parking lot falls within the definition of “highway”. Mr. Russell was crossing through a parking lot and it is clear that he was not using a crosswalk, therefore s. 180 applies. Section 181 imposes a corresponding duty on a driver “to exercise due care to avoid colliding with a pedestrian on a highway.” The standard of “due care” will obviously be higher in a parking lot than, for example, on a freeway, because one can expect pedestrians to be using that space. This approach is consistent with Bohati v. Jewell (1996) 84 B.C.A.C. 161, another “parking lot” case, where this court relied on what are now ss. 180 and 181 to apportion liability. Sections 180 and 181, rather than s. 179(2), have also been relied upon in lower court decisions involving parking lots: see Gray v. Ellis, 2006 BCSC 1808, and Davidson v. Donnelly, [1996] B.C.J. No. 800 (S.C.).

 

[17] Even if Mr. Russell did leave a place of safety, the trial judge erred in his interpretation of s. 179(2) by considering only part of it. This provision has two components: a pedestrian must leave a place of safety and this must be done so suddenly that it is “impracticable for the driver to yield the right of way.” The trial judge’s findings clearly indicate it was not impracticable for Mr. Parks to yield the right of way. He found that Mr. Parks could have stopped and avoided the accident had he been keeping a proper lookout (para. 34). In my view, s. 179(2) contemplates a situation where the pedestrian steps onto a path designated for pedestrians (such as a crosswalk) but in doing so steps immediately into the path of a moving vehicle that could not practicably yield the right of way in time. According to the trial judge’s findings, this does not describe the situation in which Mr. Russell and Mr. Parks found themselves.

ICBC claims involving parking lot motor vehicle accidents can at times be quite difficult with respect to assessing liability. Some of the main reasons for this can include the lack of established lanes with lines and markings, the lack of stop signs, and the lack of controlled intersections.

 

In Araujo v. Vincent, the Plaintiff was injured as a pedestrian in a parking lot at her school. She had exited the school bus, and was on her way to school through the parking lot. She dropped her cell phone, and upon bending over to pick it up, was run over by a truck which had just started to reverse. The Plaintiff suffered injuries, and consequently brought an ICBC claim for damages. ICBC’S lawyer attempted to argue that the Plaintiff was contributorily negligent, however the Court rejected these submissions, holding the driver of the truck to be fully liable for the accident and the injuries sustained by the Plaintiff. The Court would award $70,000.00 in non-pecuniary damages for pain and suffering.

 

[70]        I do agree with the defendant’s submission that, had the defendant taken just a few more seconds to check, he likely would have seen the plaintiff.  I disagree that this proposition is simply hindsight or approaching absolute liability.  Rather, as I have noted, it must be the case that the question of what amount of time should be taken by a reasonable and prudent driver to check behind a vehicle before reversing it depends on the circumstances.  All drivers should know that backing up is a very dangerous manoeuvre, as a vehicle can do serious harm to someone in the way.  A driver has to contemplate the risk that someone might be in the way of the vehicle.

 

[71]        I conclude, in all of the circumstances of this case, that Mr. Vincent did not meet the standard of care of a reasonable and prudent driver.  In the circumstances, he should have taken more time to observe movement behind him before reversing his truck.  It was foreseeable that a student might have passed behind his truck and might be momentarily out of view, or that a student might dash out into the path of a vehicle to catch a football or catch up with a friend.  It was foreseeable, given the amount of student pedestrian traffic, that a student might drop something and momentarily bend over to pick it up without giving notice to the driver, because the student would not be expecting the driver to leave the parking stall right before the start of school and to leave it so quickly, in the circumstances where so many students were walking by.

 

[72]        I find that had he taken the time to check around him, in accordance with the standard of a reasonable and prudent driver, Mr. Vincent would have seen Ms. Araujo and not begun to reverse his truck when he did.  He is therefore at fault for the accident.

In Russell v. Parks, the Plaintiff was injured as a pedestrian in a collision with a motor vehicle accident in a parking lot. The Court found that both parties were liable for the accident, but more so the Plaintiff, who the Court ruled was two thirds liable for the accident.

 

[32]         In my view, the defendant was in breach of both his statutory and common law duties which he owed the plaintiff. His breach of his statutory duties is evidence from which I can conclude in consideration of all the evidence that he was negligent. In particular, although Mr. Parks did have the right of way, he failed to keep a proper lookout for persons, such as the plaintiff, who he either saw or, acting reasonably, ought to have seen prior to the Accident occurring.

 

[34]         I accept he made three separate checks over his right shoulder, the first as he made his wide turn to get around the vehicle which was parked, the others after he saw the individual in front of the Windsor Plywood store. But I also find it was likely the last two checks took place just before and as the defendant entered the parking space which diverted his attention from the fact the plaintiff had crossed over the concrete barrier and had placed himself directly in front of his van. Had the defendant been keeping a proper lookout he would have seen the plaintiff who was clearly there to be seen.

 

[35]         In so far as causation is concerned, I find that the defendant, at the speed he was travelling, could have brought his vehicle to a stop without coming into contact with the plaintiff had he been keeping a proper lookout as to what was taking place in front of him.

 

[36]         I also conclude the plaintiff was contributorily negligent. I find he left a place of safety, being the walkway, and stepped over the concrete barrier. By doing so, he immediately placed himself right in front of the defendant’s vehicle which was in the process of being parked. Mr. Russell was unable to provide any explanation for his actions. His counsel suggested there may have been an open door to one of the businesses which impeded the plaintiff’s passage or a concern that at the end of the walkway near Windsor Plywood there was a ‘blind corner” as a reason for the plaintiff’s actions. He then indicated it would be shear speculation to conclude this was the reason for the plaintiff acting as he did. I agree.

In Sheikh v. Struys, the Plaintiff was injured in a motor vehicle accident in a parking lot, and brought an ICBC claim for damages for pain and suffering. As is often the case in parking lot accidents, liability was in dispute. The Defendant had driven into a gap in the line of cars at almost the same time the Plaintiff reversed right into the Defendant. The Court dismissed the Plaintiff’s ICBC claim.

 

[47]        I find as a fact that Dr. Sheikh’s SUV reversed back into Mr. Struys’ Jeep while Mr. Struys was partially into the laneway and had stopped there. I also find as a fact that Dr. Sheikh could not see Mr. Struys’ Jeep at the time of the collision. Further, I find that Dr. Sheikh could not see what was happening behind his vehicle as he was reversing into the laneway and, therefore, he has no knowledge as to how the collision occurred.

 

[48]        Dr. Sheikh contended that Mr. Struys should have paid more careful attention as to what was going on in front of him. Mr. Struys was said to have mistakenly assumed, without any eye contact with the driver of the Dodge truck, that the Dodge truck had stopped for him, which resulted in him colliding with Dr. Sheikh’s SUV.

 

[49]        In my view, it does not matter which party was the one being allowed to enter the laneway by the driver of the Dodge truck. The driver of the Dodge truck may in fact have been stopping for both of their vehicles in that respect. There is no evidence one way or the other as to whether the Dodge truck had stopped for Dr. Sheikh, Mr. Struys or both of them. The point is that the Dodge truck had stopped and both parties assumed, based on their contact with the driver of the Dodge truck, that he or she was stopped for them. As such, it has not been shown that Mr. Struys “mistakenly” assumed that the Dodge truck had stopped for him.