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Driver exceeding speed limit slightly found 20% liable for collision with pedestrian

Hauer & Co. > Contributory Negligence  > Driver exceeding speed limit slightly found 20% liable for collision with pedestrian

Driver exceeding speed limit slightly found 20% liable for collision with pedestrian

In the recent case of Vandendorpel v. Evoy, 2017 BCSC 1865, a pedestrian was struck by a motor vehicle at the “T” intersection created by the termination of Mount View Avenue at Sooke Road, in Colwood, British Columbia (the “Intersection”). There are three marked crosswalks at the Intersection. One traverses Mount View Avenue, one traverses Sooke Road at the northern end of the Intersection and one traverses Sooke Road at the southern end of the Intersection. The two crosswalks that traverse Sooke Road have pedestrian traffic control signals. At approximately 6:45 a.m. on October 9, 2010, the plaintiff Mr. Vandendorpel was walking north on Sooke Road. He was on his way to work at the Shell Service Station on the northwest corner of the Intersection. Around the same time, the defendant Mr. Evoy was driving his motor vehicle south on Sooke Road. He was returning home after completing his work shift as a paramedic with the BC Ambulance Service.

When Mr. Vandendorpel reached the Intersection’s southern crosswalk, he activated the pedestrian control signal so that he could safely cross Sooke Road. Failing to wait for the signal to change, he began to cross the roadway. When he was part way across Sooke Road, Mr. Vandendorpel noticed Mr. Evoy’s car approaching. Although the pedestrian traffic signal facing him was still red, Mr. Vandendorpel began to run directly across Mr. Evoy’s path of travel. Mr. Evoy’s vehicle entered the Intersection as the traffic control signal was yellow. He had not seen Mr. Vandendorpel crossing the roadway and only did so at the last moment when there was no time to avoid a collision. The front passenger side of Mr. Evoy’s vehicle clipped Mr. Vandendorpel’s right foot causing him to spin and fall to the ground. Following a nine-day trial, the Court found Mr. Vandendorpel 100% at fault for the accident and dismissed his action.

Mr. Vandendorpel appealed from the order dismissing his action to the B.C. Court of Appeal. The Court of Appeal found that in analyzing the defendant’s duty of care, the relevant statutory provisions should have been considered and reviewed and that 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. The Court of Appeal found that 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. In the result, the Court of Appeal sent the case back to this court for reconsideration.

The plaintiff contended that in addition to the common law duties that apply to the circumstances of this case, the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”) need to be analyzed when assessing whether the defendant was negligent and in determining his degree of liability for the accident. Although Mr. Vandendorpel accepted he was partially to blame for the accident, he contended Mr. Evoy was equally culpable, given the manner in which he was driving. In the result, Mr. Vandendorpel submitted that liability should be apportioned evenly between the parties. The defence contended that a careful analysis of the applicable statutory provisions and common law principles led to a result that is no different from the one the court reached in its original reasons. That is, Mr. Vandendorpel was entirely responsible for the accident. Even if Mr. Evoy was driving in a negligent manner, that negligence did not cause the accident. In the event the Court found Mr. Evoy was partially responsible for the accident and liability should be apportioned between the parties, then the greater share of the blame should be attributed to Mr. Vandendorpel.

The Court found that while both parties failed in their respective duties of care, the Court found Mr. Evoy’s failure was much less significant than Mr. Vandendorpel’s. His negligence consisted of driving at a speed that was over the posted limit, even if it was only minimally above that limit (i.e., approximately 55 km/hr in a 50 km/hr zone) and doing so when the lighting and road conditions (which were wet) were less than optimal. Compared to this conduct, Mr. Vandendorpel’s failures were more serious. He was dressed in dark clothing, including a dark hooded pullover that was zipped up to the top. None of his clothing had any light reflective qualities. He was also wearing headphones and listening to music and that reduced his ability to hear any on-coming traffic. He also had to cross a five-lane roadway that spanned approximately 18 metres. Although he depressed the pedestrian control device, he only waited a second or so before he attempted to cross the roadway. He carelessly did so even though the pedestrian control signal was still red and the traffic control signals were still green. Mr. Evoy’s vehicle approached the Intersection from the north. That is the direction Mr. Vandendorpel was initially walking. The headlights of Mr. Evoy’s vehicle would have been visible from at least 100 metres away. Mr. Vandendorpel must not have looked north on Sooke Road as he began to cross the roadway because he did not see the headlights of Mr. Evoy’s vehicle until it was approximately 30 metres away from him. That is, until the vehicle was just about to enter the Intersection. At that point, the pedestrian control signal was still red and the traffic control signal was yellow. Notwithstanding all of this, Mr. Vandendorpel chose to run across the path of the on-coming car instead of standing fast or retreating.

Having reviewed all of the evidence provided at trial, including the expert opinion evidence of Mr. Ising and Mr. Stoudz, and after examining the statutory provisions counsel have submitted are applicable to this case and have related them to the findings of fact the judge made at trial the Court  agreed with the plaintiff that the defendant was travelling at a speed above the posted limit and therefore he breached s. 146 of the Act. Although the speed was only marginally greater than 50 km/hr, the fact of the matter is Mr. Evoy was speeding.

The Court found the video material presented by plaintiff’s counsel was helpful in visualizing and appreciating the different speed scenarios and what would likely have occurred had Mr. Evoy not been travelling above the posted speed limit. Recognizing that scientific precision cannot be achieved in situations like the present one, the Court was satisfied that had Mr. Evoy been travelling at a slower speed, he would likely have seen Mr. Vandendorpel sooner and been able to take evasive measures to avoid the accident. Although the difference is only a second or so, on a balance of probabilities, that difference would likely have made a difference in the result.

Having conducted the reconsideration as directed by the Court of Appeal, the Court was satisfied that the plaintiff has made out his case. In reaching this decision the Court found that both parties share responsibility for the accident. In the opinion of the Court the appropriate division of liability is 20% to Mr. Evoy and 80% to Mr. Vandendorpel.

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