In Vandendorpel v. Evoy, the Plaintiff was a pedestrian who was injured in a motor vehicle accident when he was struck in a crosswalk at a controlled intersection. The Plaintiff consequently commenced an ICBC claim, and then later commenced formal legal proceedings. Liability was disputed by ICBC’S lawyer.

 

At trial, the judge considered the relevant and applicable statutory duties and obligations of the Plaintiff, as a pedestrian, under the Motor Vehicle Act, but did not do so for the driver. The trial judge also did not review the expert evidence as it related to the speed of the Defendant driver. The trial judge would eventually dismiss the Plaintiff’s claim.

 

The Plaintiff appealed, with counsel for the Plaintiff arguing that the trial judge failed to take into consideration numerous statutory provisions under the Motor Vehicle Act with respect to whether or not the Defendant driver breached the standard of care.

 

The Court of Appeal agreed, allowed the appeal, and remitted the matter back to the trial judge to reconsider the issues.

 

[24] In the circumstances, in my view, it was necessary for the trial judge to undertake an analysis of the applicable statutory provisions, and relate those to the facts found. I do not mean by that to suggest that there is any particular outcome to the analysis which must be undertaken, but only that, in analyzing the defendant’s duty of care, these statutory provisions should have been considered and reviewed. Nor do I suggest that the only matters that are germane are the statutory provisions. Clearly the duties imposed by the common law include a duty to exercise due care, to keep a proper lookout, and to take precautions when there is an apparent hazard.

 

[25] As noted by Mr. Finn, the trial judge did not go on to determine the question of causation because he found that Mr. Evoy met the duty of care. For a finding of liability against Mr. Evoy it was necessary to find both a breach of the duty owed to Mr. Vandendorpel and that the breach was a cause of the injury.

Section 179 (2) of the Motor Vehicle Act effectively states that a pedestrian cannot cross the street in front of a vehicle that is so close that it is impracticable for the driver to yield the right of way.

 

In Gulati v. Chan, the Plaintiff was a pedestrian who was injured when struck in the middle of a marked crosswalk by the Defendant, who had turned left after failing to stop for a stop sign. The Plaintiff brought an ICBC claim for non-pecuniary damages, loss of income, diminished earning capacity, loss of housekeeping capacity, special damages, and future care. The Plaintiff argued that she had proceeded cautiously into the crosswalk after keeping a proper lookout, that she had the right of way, and that she was unable to avoid the collision with the Defendant’s vehicle. The Defendant accepted the majority of the blame for the accident, but argued that the Plaintiff should be 10-20% responsible for failing to avoid his vehicle, which was a visible and foreseeable risk to her. Not surprisingly, this argument was rejected by the Court, who found the Defendant fully to blame for the accident for not paying attention, and for not bringing his vehicle to a stop when he should have.

 

[28] Mr. Chan submits that his vehicle was clearly visible to Mrs. Gulati and that she had the duty to avoid the foreseeable risk that it posed to her safety. Relying upon what he maintains are the parallels between the facts in the present case and those in Paskall, Mr. Chan contends that by proceeding into the crosswalk in the manner that she did, Mrs. Gulati negligently placed her well-being in jeopardy and for that she should be found to be partially responsible for the Accident.

 

[29] I accept the evidence of Mrs. Gulati and Mr. Leverett with respect to how the Accident occurred. In particular I am satisfied that Mr. Chan was not paying attention when he was driving and that he did not bring his vehicle to a stop when he should have. Instead, without any notice or warning to Mrs. Gulati who was legally crossing the road, Mr. Chan proceeded through the stop sign and turned left, leaving Mrs. Gulati with no time to react and avoid the collision. It was not unreasonable for Mrs. Gulati to believe that Mr. Chan’s vehicle would stop at the stop sign and it cannot be said that a reasonable person would have anticipated his decision to breach the rules of the road in the manner that he did.

 

[30] In my opinion, Mr. Chan is 100 percent liable for the Accident.

In Han v. Chahal, the Plaintiff was a pedestrian who was struck on a marked crosswalk by a driver turning left, and consequently brought an ICBC claim for damages for pain and suffering, past loss of earning capacity, future loss of earning capacity, out of pocket expenses, and cost of future care. ICBC’S lawyer argued that the Plaintiff should be held to be 25% at fault, however the Court found the Defendant to be fully liable for the accident, and awarded the Plaintiff $140,000 for pain and suffering, $100,000 for past loss of earning capacity, $200,000 in future loss of earning capacity, and over $17,000 for costs of future care.

 

[18] I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes. She testified that she had proceeded about four steps when she was struck. The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane. Ms. Chahal’s evidence about the accident details was generally vague. However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act. Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb. I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle. She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.

 

[19] It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff. The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped. The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping. This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”. This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck. Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not. I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.

[20] The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident. There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision. The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.

 

Section 179 (2) of the Motor Vehicle Act effectively states that a pedestrian cannot cross the street in front of a vehicle that is so close that it is impracticable for the driver to yield the right of way.

 

In Lourenco v. Pham, the Plaintiff was injured as a pedestrian when she was struck by a vehicle in a marked crosswalk. The Plaintiff brought an ICBC claim for injuries for pain and suffering, past wage loss, diminished earning capacity, out of pocket expenses, and cost of future care. Liability was admitted for the accident by ICBC’S lawyer. Prior to the accident, the Plaintiff was a very active person, and had a physically demanding job as well. Shortly after the accident, the Plaintiff was involved in another accident, this time when she backed her car into another car while parallel parking. She maintains that she was not injured by this accident. The Plaintiff was involved in a third accident approximately a year and a half later, when the front of her car was clipped by another car as the Plaintiff exited a parking spot. Again, the Plaintiff maintained that she was not injured in any way by this accident. The Plaintiff did not report her last two accidents to her doctor. ICBC’S lawyer argued that the latter two accidents contributed to the extent of the Plaintiff‘s injuries that she sustained in the original accident. The Court dismissed this argument, however, and ruled that the original collision of the Plaintiff was solely responsible for the state of her injuries as at the date of trial.

 

[45] Ms. Lourenco bears the burden of proving on a balance of probabilities that her current symptoms were caused by the MVA. The defendants argue that she cannot do so because Dr. Ezekiel conceded he was no longer able to state that her symptoms were causally related to the accident. Dr. Ezekiel conceded her neck pain may have been caused by the second accident on December 29, 2009 and he also conceded that any symptoms Ms. Lourenco was experiencing from either the MVA or the second accident may have been resolved by August, 2010 and that her ongoing symptoms may be related to the third accident in May 2011.

 

[46] Dr. Stewart had the opportunity to consider the two subsequent accidents before she gave her evidence, although she was unaware of them until the morning she appeared. Her opinion was that if these accidents were serious Ms. Lourenco would have mentioned it to her.

 

[47] I have Ms. Lourenco’s evidence of the two subsequent accidents. There is no basis to conclude that she sustained new or additional injuries in either of them. While I agree with the defendants that it would have been better if she had disclosed the two subsequent accidents to her physicians, I cannot conclude that the two subsequent accidents had any effect on the symptoms which Ms. Lourenco had arising from the first accident. It must be remembered that the first accident involved a collision between the defendants’ vehicle and Ms. Lourenco’s body. It was of significant force and caused Ms. Lourenco to become airborne before landing on the pavement. In the second and third accident, Ms. Lourenco’s body was protected by a vehicle and the impacts were not significant. There is no other evidence about the subsequent accidents. To consider that the subsequent accidents are responsible for Ms. Lourenco’s ongoing symptoms places undue emphasis on minor collisions.

 

[48] I find that Ms. Lourenco has proved that the MVA is the cause of her injuries and ongoing symptoms.

 

In Han v. Chahal, the Plaintiff was a pedestrian who was struck on a marked crosswalk by a driver turning left, and consequently brought an ICBC claim for damages for pain and suffering, past loss of earning capacity, future loss of earning capacity, out of pocket expenses, and cost of future care. ICBC’S lawyer argued that the Plaintiff should be held to be 25% at fault, however the Court found the Defendant to be fully liable for the accident, and awarded the Plaintiff $140,000 for pain and suffering, $100,000 for past loss of earning capacity, $200,000 in future loss of earning capacity, and over $17,000 for costs of future care.

 

[18] I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes. She testified that she had proceeded about four steps when she was struck. The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane. Ms. Chahal’s evidence about the accident details was generally vague. However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act. Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb. I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle. She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.

 

[19] It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff. The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped. The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping. This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”. This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck. Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not. I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.

[20] The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident. There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision. The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.

In Bulatovic v. Siebert, the Plaintiff was injured as a pedestrian when crossing the street on a crosswalk, and consequently brought an ICBC claim for damages such as pain and suffering, income loss, diminished earning capacity, and cost of future care. The Plaintiff maintained that she had the right of way, however ICBC’S lawyer maintained that she failed to exercise a reasonable standard of care by crossing the street on a “don’t walk” signal. The Court eventually preferred the testimony and evidence of the Plaintiff, and awarded $65,000.00 for pain and suffering for neck pain and headaches suffered by the Plaintiff for three years by the time of trial.

 

[84]        I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said “Walk”. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to “Walk”. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant’s evidence that he could have looked to his left in order to see the plaintiff.

 

[85]        It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a “Walk” signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.

 

In Whelan v. B.C. Transit, a pedestrian was injured after being struck by a bus, and brought an ICBC claim for injuries. The Plaintiff was walking along a sidewalk, and stepped briefly onto the road in order to get around some people. Before being able to return to the sidewalk, he was struck from behind by the bus. The Court ruled that both the Plaintiff and Defendant were to blame, the Plaintiff for stepping onto the road when it was not safe to do so, and the Defendant for being negligent for not seeing the Defendant, who was there to be seen.

 

[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.

 

[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk.

 

[73]          I do not find his use of an iPod to be a meaningful factor in this analysis though. His negligent decision to step onto the road was caused by impatience and a faulty assumption about the actions of the bus driver, and not by any reduction in his ability to hear his surrounding environment.

 

[75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

 

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%

In Russell v. Parks, the Plaintiff was injured in a shopping mall parking lot, and brought an ICBC claim, seeking damages for pain and suffering, past loss of earning capacity, diminished earning capacity, and cost of future care. The Plaintiff was struck as the Defendant was attempting to park. Liability was in issue in the case, with the Plaintiff arguing that he was clearly there to be seen, and ICBC’S lawyer arguing that the Defendant was there for the Plaintiff to be seen, and that the Plaintiff had left his place of safety i.e. the walkway, before walking into the path of the Defendant. ICBC’S lawyer also argued that the Plaintiff breached his common law duties by failing to take reasonable steps in the furtherance of his own safety. The Court eventually ruled that the Plaintiff was 2/3 negligent.

 

[40]        I conclude the plaintiff’s degree of fault is greater than the defendant’s. The defendant was entitled to take the route he did in order to park his vehicle. He was travelling at an appropriate rate of speed under the circumstances. Ironically, it was his performance of a safety check to his right which resulted in his momentarily not seeing what was occurring in front of him.

 

[41]        The plaintiff, on the other hand, had no reason to leave the walkway when he did. He was looking down as he was in the process of crossing the concrete barrier and entering the parking lot. When he looked up the defendant’s vehicle was right in front of him.

 

[42]        In my opinion liability should be apportioned 66 ⅓% against the plaintiff and 33 ⅓% against the defendant.

 

In Culos v. Chretien, a pedestrian was attempting to cross a marked crosswalk, when he was struck by a vehicle making a right hand turn. The Defendant admitted fault, however argued that some of the blame should be borne by the Plaintiff pedestrian. The Court rejected this line of argument, holding the Defendant to be completely at fault for the accident.

 

[46]        ……  The plaintiff entered the crosswalk. At the same time, the defendant moved into the intersection with her car angled to its right. The plaintiff carried on while the defendant stopped briefly at the thin white line painted across the extreme end of 3rdwhere it joins Lorne. Neither party saw the other. The defendant looked to her rear left to check for traffic on Lorne. At that moment, the plaintiff was established in the crosswalk and was directly in front of the defendant’s car. The defendant then began to move her car forward without first looking in the direction that she was traveling. In the result, the front of her car struck the plaintiff.

 

[47]         The defendant’s submission that the plaintiff was contributorily negligent is superficially attractive – after all, her car was there to be seen. The presence of her car in the intersection at the same time that the plaintiff was in the crosswalk could be thought to constitute an immediate hazard for the plaintiff.

 

[48]         The flaw in the defendant’s argument is this: the plaintiff was established in the crosswalk before the defendant got underway from her second stop to check for traffic. Had the plaintiff seen the defendant, he would have seen her move forward from the stop line, stop at the thin white line, and look back over her left shoulder to check for traffic on Lorne. Given his position in the crosswalk, the plaintiff was entitled to assume that a motorist would give way to him. He could only be found to be careless for his safety if he had stubbornly insisted on maintaining his right‑of‑way in the face of knowledge that an oncoming motorist was behaving in a way that indicated the motorist would not yield to him. Had the plaintiff been looking at the defendant, he would not have seen anything about her behavior that would have led him to believe that she would not yield to him. That is because he would have seen her move from the stop line on 3rd to the thin white line and stop again while looking over her left shoulder. No one in the plaintiff’s position would have had a reasonable suspicion that the defendant, whose driving up to that moment had been careful and considerate, would nevertheless go forward without first looking at where she was going.

 

[49]         In short: the defendant’s behavior ahead of the collision was not such as to put a reasonable pedestrian in the plaintiff’s position on notice that the defendant was not going to yield to the pedestrian. That hypothetical pedestrian would have reasonably assumed that if the defendant was careful to check for traffic before entering Lorne, she would likewise be careful to look in front of her before she put her car in motion and moved out onto Lorne. Nothing in the evidence suggested that the plaintiff ought to have appreciated that the defendant would do as she did.

 

In Cairney v. Miller, the Plaintiff was struck by the Defendant’s vehicle when crossing a marked crosswalk. The Defendant attempted to argue that the Plaintiff should bear some of the blame, as he should have seen that the Defendant was not yielding the right of way. The Court rejected this argument, and found the Defendant fully liable for the accident.

 

[25]         Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.

 

[26]         Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.

 

[27]         This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.

 

[28]         I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way.

 

[29]         The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.