Jordison v. Grabham

Citation: Jordison v. Grabham Date: 19990419 1999 BCCA 245 Docket: V03215 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN:

SHIRLEY ANN JORDISON PLAINTIFF (APPELLANT) AND:

ARTHUR ROBERT GRABHAM DEFENDANT (RESPONDENT) Before: The Honourable Mr. Justice Lambert The Honourable Mr. Justice Donald The Honourable Madam Justice Huddart W. Murphy-Dyson Counsel for the Appellant H.F. Turnham Counsel for the Respondent Place and Date of Hearing Victoria, British Columbia 9 March 1999 Place and Date of Judgment Vancouver, British Columbia April 19, 1999 Written Reasons by: The Honourable Madam Justice Huddart Concurred in by: The Honourable Mr. Justice Lambert The Honourable Mr. Justice Donald Reasons for Judgment of the Honourable Madam Justice Huddart: [1] This is an appeal by a pedestrian from an order finding her 75% responsible for the injuries she suffered when the respondent's truck hit her as she was crossing West Burnside Road in Saanich on a dark and rainy evening in November 1995. Because the reasons of E.R.A. Edwards J. are reported at (1998), 50 B.C.L.R. (3d) 278, the summary of the facts can be brief. [2] There was no witness to the accident. The appellant, 61 years of age at the date of the accident, has no memory of it. She was struck while crossing the third lane of traffic from the pedestrian exit from the parking lot of Tillicum Mall on the south side of Burnside Road to the median separating eastbound traffic from the three westbound lanes and the bus pull-out on the north side of Burnside Road. Directly opposite the pedestrian exit from

the parking lot are steps from the sidewalk on the opposite side of Burnside Road to a branch of a bank. [3] The area was well illuminated. The appellant is very familiar with the area and usually crossed to go to the Bingo Palace on the other side of the road at one of the two signalled intersections each about 100 metres from the point where she crossed on the evening in question. She could not explain the change in her usual practice. The respondent and a friend of the appellant both testified that people occasionally cross at that point. There was no evidence to suggest that frequent use was made of the area as a crossing. However, experts called by the appellant opined that the geography of the area would draw pedestrians to cross there, particularly on a rainy night. [4] The respondent, now 51, is an elementary school teacher. This was his first motor vehicle accident. He too was very familiar with the area, having travelled along the road regularly for 10 years. He estimated his speed at between 30 and 40 kph. He testified that he first saw the appellant when she was five yards ahead of him to the right of the centre of his vehicle in his path of travel. He was travelling in the third lane from the curb from which the appellant had departed. He applied his brakes and tried to swerve to the right to avoid her but the left front headlight portion of his vehicle struck the

appellant. He could recall no other traffic distracting him or interfering with his vision. He testified that his vision was not clear at the time of the accident either because of the heavy rain or because his windows may have fogged up. [5] The expert who testified for the appellant opined that the respondent would have had adequate time after he observed the appellant to have avoided her if he were travelling at 30 kph. The expert whose report was filed by the respondent criticized that conclusion on the basis of assumptions made as to the respective speeds of the parties. [6] The appellant's position at trial was that she was crossing at an unmarked or common law crosswalk and thereby entitled to the right-of-way under s. 179 of the Motor Vehicle Act, R.S.B.C. 1996, c.

318. The respondent relied on s. 180 to assert that a pedestrian crossing a highway outside a crosswalk must yield the right-of-way to a vehicle. Moreover, he argued, the appellant either saw or ought to have seen his truck and in the dark and rainy conditions of that November evening ought not to have assumed she would be seen. He no longer asserts he was not partly responsible for the accident. [7] The trial judge found neither an unmarked crosswalk as defined in Part 3 of the Motor Vehicle Act, nor a common law crosswalk. This latter term appears to have been coined by McEachern C.J.B.C. in his concurring reasons in Fabellorin v. Peterson (1994), 93 B.C.L.R. (2d) 105 at para. [27], where he wrote, referring to the definition of crosswalk in s. 119 of the Act: Applying that definition literally in an off-set or angled intersection could result in a crosswalk that extended diagonally across a highway. That might be an absurdity that requires the court to provide a more sensible result. I therefore wish to reserve for future consideration the question of whether a person such as the plaintiff in this case proceeding east on the north sidewalk of 21st Avenue, angling towards a busy thoroughfare like Cambie Street, was entitled to crosswalk protection while crossing Cambie Street at a right angle. For want of a better term I might call that a common law crosswalk although it is

not necessary to go that far. [my emphasis] [8] The trial judge found both parties had breached the standard of care to be expected of them in the circumstances, saying: [29] I infer from the fact that the plaintiff materialized in the path of the defendant's vehicle that she either did not look and see his vehicle approaching, which would be a lapse from her normal cautious approach to crossing streets, or she saw his vehicle approaching but mistakenly assumed he would see and take action to avoid her. In either event she was not exercising prudence for her own safety in the circumstances. ... [34] There is no satisfactory explanation for how this accident happened. It was not a case of the plaintiff stepping from the curb immediately into the defendant's path, making a collision unavoidable. Had the defendant been more alert he might have seen the plaintiff in time to avoid her. Rain or a fogged windshield meant the defendant did not have a clear view, as he acknowledged. [9] Then he concluded, at para 36: I find a momentary lapse in attention by the defendant combined with the fact his vision may have been partly obscured by a fogged windshield contributed to causing this accident. However, the primary contributing cause was the plaintiff's uncharacteristic attempt to undertake a perilous crossing at a point she had hitherto wisely avoided. I apportion liability 75/25

against the plaintiff. [10] The appellant puts forward two grounds of appeal, firstly, that the trial judge erred in finding the path of the appellant not to be a crosswalk. Secondly, the trial judge erred in his apportionment of liability in favour of the respondent, regardless of whether the appellant was under a duty to yield the right of way because she was outside a crosswalk. [11] Finally, both parties ask this court to determine the appropriate order for costs of the trial as well as the costs of the appeal. They do so to avoid the expense of an application to the trial judge. [12] The aerial photograph is persuasive that a reasonable driver proceeding along Burnside Road would not consider the path the appellant took to be an unmarked crosswalk. It is equally persuasive that an ordinary reasonable user of the highway would not consider its junction with the vehicle exit from the parking lot to be an intersection, as that word is commonly understood, although any driver would certainly take reasonable care to avoid traffic that might not yield in accordance with its duty under s. 176(2) of the Motor Vehicle Act. That section provides: (2) The driver of a vehicle about to enter or cross a highway from an alley, lane, driveway, building or private road must yield the right of way to traffic approaching on the highway so closely that it constitutes an immediate hazard. [13]

The short exit driveway enters Burnside Road at an angle of about 110ø. The walkway that constitutes the pedestrian exit from the mall enters the sidewalk on the south side of Burnside Road at a 90ø angle, with a triangle of grass separating it from the exit driveway. The walkway does not have the typical appearance of a sidewalk alongside a public street, or indeed, alongside a private roadway. It is not the type of sidewalk being considered in Fabellorin, supra. [14] However, on that rainy night the appellant was drawn to take the path she took, as others were before her. To establish the trial judge erred in his finding that the appellant's negligence contributed to her injuries, and in his apportionment of liability if it did, her counsel first sought to establish the trial judge erred in finding the respondent had the statutory right of way. Whether she had the statutory right of way is an important factor in determining her duty of care and thus the relative degrees of fault, for the trial judge's view that the crossing was perilous would be softened if the path she took constituted a crosswalk. [15] "Crosswalk" is defined in s. 119(1) of the Motor Vehicle Act to mean: (b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral

lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway. [16] The terms "highway", "intersection", "sidewalk" and "roadway" are also defined by the Act. The relevant portions of the definitions are in these words: 1. "highway" includes (a) every highway within the meaning of the Highway Act; (b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and (c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited. 119. "intersection" means the area embraced within the prolongation or connection of the lateral curb lines, or if none, then the lateral boundary lines of the roadways on the 2 highways that join one another at or approximately at right angles, or the area within which vehicles travelling on different highways joining at any other angle may come in conflict; "roadway" means the portion of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and if a highway includes 2 or more separate roadways, the term "roadway" refers to any one roadway separately and not to all of them collectively; "sidewalk" means the area between the curb lines or lateral lines of a roadway and the adjacent

property lines improved for the use of pedestrians; [17] The trial judge assumed for the sake of argument the junction of the exit driveway with Burnside Road was an intersection and the steps to the bank were a sidewalk within those definitions. He went on to find the path assumed to have been taken by the appellant was not contained within the prolongation of the lateral curb lines of the exit driveway and thus could not be an unmarked crosswalk: it was not "at an intersection" even if it were within the connection of the lateral lines of the steps and the exit walkway. [18] Counsel for the appellant seeks a broader reading of the words "at an intersection" that takes account of the structure of the junction of the two highways, the practical need for a sidewalk to be perpendicular to Burnside Road, and the location of the steps on the other side. [19] There is considerable difficulty in fashioning a more sensible result by giving a sufficiently broad interpretation to the definition of crosswalk to include the extension of the exit walkway in this case. The interplay of the definition of "highway" in s. 1 of the Act with the definitions of "sidewalk," "crosswalk," and "intersection" in Part 3 means the number of "intersections" and "crosswalks" would be very significantly increased by such a construction. Every parking lot, parking garage, and service station exit driveway

or "passageway" in B.C. appears to be included in the definition of "highway." Many such locations have pedestrian walkways to the sidewalk in the general area of the vehicle exit driveway. Some have several in close proximity. Under the construction of the definition of "crosswalk" put forward by the appellant, every such pedestrian exit would constitute a sidewalk and the extension of which would be a crosswalk. I cannot accept that proposition. Both the steps and exit walkway are improvements on private land running from the pathway parallel to Burnside Road to the parking lot. Neither the steps nor the exit walkway are "between the curb lines or lateral lines of a roadway". I would not accede to this ground of appeal. [20] Moreover, the fundamental issue before the trial judge was not who should have yielded the right of way to the other but who breached the standard of care owed to others in the circumstances. The trial judge found both parties breached their standard of care, the appellant in failing to keep a proper lookout when she entered the road on a dark and rainy night in the face of an oncoming car whose lights would have been visible to her, and the respondent when he failed to keep a sufficient lookout for someone who was there to be seen for sufficient time that he might have avoided her. He considered the appellant's breach to have contributed substantially

and significantly to her injuries. [21] It is well settled that appellate courts are not to interfere with findings of negligence or apportionment of liability because we might take a different view of the facts than did the trial judge. With such findings this court can intervene in only limited circumstances. In my view, it has not been shown that the trial judge fell into error in his appreciation of the facts or the findings he made on those facts with regard to negligence or the apportionment of liability. I am not persuaded that his conclusions were clearly wrong. [22] The only error of law alleged by counsel for the appellant was the trial judge's failure to apply the statutory presumption of equal responsibility after having found no satisfactory explanation for how the accident happened. This submission refers to s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides: (1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault. (2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally. (3) Nothing in this section operates to make a person liable for damage or loss to which the person's fault

has not contributed. [23] I do not read this provision as requiring a judge to find a satisfactory explanation for how, in the sense of why, an accident happened before establishing different degrees of fault. The mechanics of this accident were known; the trial judge was able to establish different degrees of fault. In my view, no issue of law arises. [24] That being so, I would dismiss the appeal. [25] The appellant seeks an award of full costs despite having been found contributorily negligent. She does so on the same factual basis put forward in Moore v. Dhillon (1993), 85 B.C.L.R. (2d) 69. The respondent argues he should not be precluded from entitlement to 75% of his costs in accordance with the apportionment of liability by reason only of his election to forego his claim for damages to his truck in the amount of $968.00 in the face of the appellant's more serious injuries. To apply Flatley v. Denike (1997), 32 B.C.L.R. (3d) 97 to preclude an award of costs in his favour would be to encourage defendants in his position to counterclaim for such damages, he argues. [26] I might be persuaded by the consent of both parties that this court should make the usual order under s. 3 of the Negligence Act as settled by this court sitting with five members in Flatley v. Denike at para.

22. However, both parties seek the exercise of the discretion granted to a trial judge by s. 3 to make other than the usual order. Moreover, the respondent's submission raises a question of law that is not straight-forward. The resolution of that issue will be assisted by the trial judge's finding of facts and discussion of the law. In these circumstances, I would not entertain the joint application that we consider the issue of the costs of the trial. "The Honourable Madam Justice Huddart" I AGREE: "The Honourable Mr. Justice Lambert" I AGREE: "The Honourable Mr. Justice Donald"