COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Simpson v. Baechler,
	2009 BCCA 13

Date: 20090116

Docket: CA034958; CA034962;

CA034976

Docket: CA034958

Between:

Robert Burton Simpson

Appellant

(Plaintiff)

And

Guy Harvey Baechler

Respondent

(Defendant)

- and -

Docket: CA034962

Between:

Robert Burton Simpson

Respondent

(Plaintiff)

And

Telus Corporation

Appellant

(Defendant)

- and -

Docket: CA034976

Between:

Robert Burton Simpson

Respondent

(Plaintiff)

And

District of Campbell River

Appellant

(Defendant)

And

Telus Corporation

Respondent

(Defendant)

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Bauman
	The Honourable Madam Justice D. Smith

 

W.S. Berardino, Q.C. B.B. Olthuis	Counsel for the Appellant
J.A. Graham J.S. Carfra, Q.C. M. O’Meara	Counsel for the Respondent, G. Baechler Counsel for the Respondent, District of Campbell River Counsel for the Respondent, Telus Corporation
Place and Date of Hearing:	Vancouver, British Columbia
October 27, 2008
Place and Date of Judgment:	Vancouver, British Columbia
January 16, 2009

 

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Bauman The Honourable Madam Justice D. Smith

Reasons for Judgment of the Honourable Chief Justice Finch:

[1]                These three appeals are brought from the judgment of the Supreme Court of British Columbia pronounced 13 March 2007.  The litigation arose from a pedestrian-motor vehicle accident in Campbell River, B.C. on 3 January 2003.  The plaintiff, Robert Simpson, entered a marked crosswalk from behind a utility pole and was struck by a pick-up truck owned and driven by the defendant, Baechler.  Mr. Simpson sued Mr. Baechler for negligence in the operation of his vehicle.  He also sued the district of Campbell River, and the two owners of the utility pole, B.C. Hydro and Power Authority and Telus Corporation. The claim against B.C. Hydro was dismissed by consent.

[2]                The learned trial judge held that the plaintiff was 60% responsible for the accident, and that Mr. Baechler, the driver of the pick-up truck, was not negligent in any degree.  He held the municipal district and Telus, the utility pole’s co-owner, were each 20% to blame.  The plaintiff appeals the judge’s finding that Mr. Baechler was not negligent.  The municipal district and Telus appeal the findings of fault made against them.

[3]                The plaintiff contends that the learned trial judge erred in finding that Mr. Baechler could not reasonably foresee a risk of harm in the circumstances, and in concluding that he was not negligent.  He submits that the accident was foreseeable, that Mr. Baechler was negligent, and that he ought to bear 20% of the fault for the accident.

[4]                Telus and the District of Campbell River say that the learned trial judge erred in finding that any negligence on their respective parts was a cause of the accident, and that the action against each should be dismissed.

[5]                For the reasons that follow, I would allow the plaintiff’s appeal and hold the driver of the truck to be 20% at fault.  I would dismiss the appeals of Telus and Campbell River.

II.         FACTS

[6]                Around 9:00 p.m. on 3 January 2003, in Campbell River, Robert Simpson was walking home from his job as a pharmacist.  It was dark and raining.  Mr. Simpson, who was wearing dark clothing and carrying an umbrella, stepped into a marked crosswalk from the south side of a wooden utility pole and was struck by a southbound pick-up truck driven by Mr. Baechler.

[7]                Mr. Simpson’s injuries were serious: they included a fracture of both knees that required surgery and will require future surgical attention, a fractured pelvis, an abrasion to the forehead, and a moderate closed head injury that has impaired Mr. Simpson's functional capacity.

[8]                Dogwood Street is a City street that runs south from the Island Highway to a residential area of the District of Campbell River.  To the north of 12^th Avenue, Dogwood has two lanes for travel southbound, and one lane for travel northbound.  There is an electric traffic control signal at 13^th Avenue, which is one block north of where the accident occurred.  There is no traffic signal at Dogwood’s intersection with 12^th Avenue, but there is a marked crosswalk on the north side of 12^th crossing Dogwood. 

[9]                To the south of 12^th Avenue, Dogwood curves somewhat to the east and begins an uphill incline.  Dogwood narrows at this point from two lanes southbound to one lane for southbound traffic. 

[10]            Twelfth Avenue intersects Dogwood only on its west side.  It is a “T” intersection, with Dogwood forming the head of the T, and 12^th Avenue the leg.

[11]            Mr. Simpson had walked easterly along the north side of 12^th Avenue, intending to cross Dogwood Street from west to east.  Mr. Baechler was driving south along Dogwood Street at 50km/hr, which was the posted speed limit.

[12]            The utility pole was embedded in the sidewalk on the northwest corner of the intersection.  Its near edge was about 14.6 inches from the curb.  Telus Corporation, part owner of the utility pole, had installed a plastic pilaster on the westerly aspect of the pole, to protect some cables.  With the pilaster, the pole was about 18.9 inches wide at eye level and 23.6 inches wide at its base. (BC Hydro was co-owner of the utility pole.  Mr. Simpson’s action against BC Hydro settled and was dismissed by consent).

[13]            The pole had not always been embedded in the sidewalk.  It was originally west of the sidewalk, but in the process of widening Dogwood Street in the 1980s the pole’s base was incorporated into the sidewalk.

[14]            In 1996, Campbell River, the RCMP and the Insurance Corporation of British Columbia identified Dogwood Street between 11^th and 13^th Avenues as accident prone and problematic with respect to traffic operations.  An engineering firm studied the corridor, found that the pole obscured pedestrians from the view of southbound drivers, and recommended (among other things) the relocation of the utility pole.

[15]            In 1997, Campbell River authorized relocation of the pole.  BC Hydro agreed. Telus Corporation was opposed, apparently because its cables were an impediment. All of the other recommended improvements to the intersection were made, but the pole remained where it had been.

[16]            The location of the utility pole was a continuing safety concern for Campbell River.  It was recognized as a safety hazard by the City’s engineering services manager.  In 2001, a second safety review of the Dogwood corridor found that the Dogwood Street and 12^th Avenue intersection had a low accident frequency and severity history, but that rear-end collisions occurred in the southbound lanes with “relatively high” “pedestrian involvement”.  A new plan to modify the corridor was approved.

[17]            The trial judge held that the T intersection at 12^th Avenue and Dogwood Street had “long been considered dangerous among Campbell River residents (para. 6).  He also found that Mr. Baechler was familiar with the intersection (para. 40) and with its “dangerous nature” (para. 23).

[18]             In 2003, after the accident involving Mr. Simpson and Mr. Baechler, the utility pole was relocated about 3 metres away and the other Telus equipment reinstalled.  The cost of about $3,000 was shared by Telus, BC Hydro, and Campbell River.  The obstruction to visibility was eliminated.

[19]            Embedded in the sidewalk as the utility pole remained at 9:00 p.m. on the night of 3 January 2003, when Mr. Baechler was driving home after dinner with some friends, and Mr. Simpson was walking home after work, the pole continued to obscure the view of pedestrians on its south side looking north for vehicles and the view of southbound drivers looking for pedestrians on the northwest corner of the intersection.

[20]            The trial judge accepted Mr. Baechler’s evidence as to how the accident occurred:

[21]      Mr. Baechler stopped for a traffic light at 13^th Avenue.  After the light changed and he passed through the intersection, a vehicle overtook him on the left.  He could not describe that vehicle’s path of travel after it passed.  As he proceeded south, he shifted to fourth gear at a speed of approximately 45 kph.  He did not intentionally accelerate, but he agreed that the higher gear would cause his truck to gain speed.  He estimated he was travelling at 50 kph as he approached the intersection.  There is no other evidence of the speed of the Baechler vehicle.

[22]      When he was what he estimated to be 10 metres from the north edge of the marked crosswalk at 12^th Avenue, Mr. Baechler saw a foot and lower leg extend from behind the utility pole and step onto the street.  What he saw was Mr. Simpson’s leg.  Mr. Baechler was sufficiently close to the intersection when he saw the pedestrian that he did not have time to react in order to avoid contact by stopping or steering his vehicle to the left.  The point of impact was the right headlight of the Baechler vehicle.  Mr. Baechler stopped his vehicle in the vicinity of the southwest corner of the intersection.

[23]      Mr. Baechler knew of the dangerous nature of the intersection; he had seen pedestrians cross inappropriately or with difficulty from east to west, but not from west to east (Mr. Simpson’s direction of travel); he looked for, and did not see, any movement to the right, or west, of the utility pole as he approached 12^th Avenue; he saw no vehicles approaching from the south; and he was focused on the approach to Dogwood Hill because of the narrowing of the road from two lanes to one.

[21]            In considering Mr. Simpson’s responsibility for the accident he said this:

[29]      While one cannot know with certainty what happened on that fateful night, the evidence reasonably permits of the inference, and I find as a fact, that as Mr. Simpson approached the intersection, but before he arrived at the pole, he saw the vehicle that passed the Baechler vehicle; he failed to observe the Baechler vehicle at the same time, although it was readily visible in the 3-metre distance from the shrubbery to the west edge of the pole; he stopped behind the pole to let the unidentified vehicle pass; and, after stepping from behind the pole and regaining his unobstructed view of Dogwood to the north, he omitted to look for southbound approaching traffic, including the Baechler vehicle, before entering the crosswalk. 

[22]            The trial judge held that the plaintiff failed to keep a proper lookout and failed to see Mr. Baechler’s vehicle before stepping into the crosswalk.  There was evidence to support those findings, and, on appeal, the plaintiff conceded that his negligence contributed to the accident.

[23]            In finding that the defendant Baechler was not negligent, the trial judge reasoned:

[40]      Mr. Baechler was familiar with the intersection. He had observed close encounters between vehicles and pedestrians crossing Dogwood from east to west. He had not observed any incidents involving motor vehicles and pedestrians crossing from west to east. I find that it was not reasonably foreseeable to a motorist such as Mr. Baechler that a pedestrian would stop behind the pole which would obscure him from the motorist’s view, and suddenly step into the intersection without first looking for oncoming traffic when clear of the pole.

[41]      Had Mr. Simpson not been standing behind the utility pole, Mr. Baechler would have seen him in the vicinity of the crosswalk. His speed and location in the roadway were such that upon sighting a pedestrian at the crosswalk, other than one who was obscured by the pole, he would have had adequate time to slow down, stop, or take evasive action in order to avoid striking a pedestrian who entered the crosswalk.

[42]      In all of the circumstances, I find that Mr. Baechler was not negligent in the operation of his motor vehicle and Mr. Simpson’s action against him must be dismissed.

[Emphasis added]

[24]            As to the liability of the municipal district and Telus, the trial judge said:

[61]      Whether or not the City and Telus were negligent by omitting to remove the hazard, the ultimate question must be whether, in all of the circumstances, the location of the pole was a cause of the accident. In my opinion, it was. It obscured Mr. Simpson’s view of approaching traffic on Dogwood. Its location left him minimal room, barely one foot, to peek around the pole, after stopping behind it to let previously detected traffic pass, for the purpose of determining whether there was additional or previously unobserved, oncoming traffic. But for the presence of the pole, Mr. Simpson would have been able to see and would have seen the approaching Baechler vehicle.

[62]      In Resurfice Corp., supra, the Supreme Court of Canada affirmed that, except in unusual circumstances, the “but for” test is still the basis for the finding of liability in tort. In other words, Mr. Simpson must prove on the balance of probabilities that “but for” the negligence of the City, he would not have suffered injury. In the present case, there was such close proximity between the obstruction of Mr. Simpson’s view, the recovery of his unobstructed view, and his entry into the crosswalk, that the “but for” test is satisfied. I find as a fact that the pole was a cause of the accident.

[63]      It follows that the causes of this accident were the negligence of Mr. Simpson, the negligence of the City, and the negligence of Telus.

[Emphasis added]

III.        ISSUES ON APPEAL

[25]            Mr. Simpson’s position is that the trial judge erred in finding that the accident was not reasonably foreseeable by Mr. Baechler, and in concluding that he had not breached the duty of care.  Mr. Baechler supports the decision of the trial judge in both respects.

[26]            Telus and the District of Campbell River deny that any negligence on their respective parts played a causal role in the accident.

IV.        ANALYSIS

[27]            The central issue in Mr. Simpson’s appeal against the finding that the driver of the pick-up truck, Mr. Baechler, was not negligent, is whether the trial judge erred in holding Mr. Baechler could not reasonably have foreseen that Mr. Simpson would walk into the marked crosswalk, and into Mr. Baechler’s course of travel, from the south side of the utility pole.

[28]            Reasonable foreseeability is a prerequisite to finding a duty of care.  There must be a sufficiently close relationship between the parties, so that in the reasonable contemplation of one party, carelessness on his part may cause harm to the other: see Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; and Galaske v. O’Donnell, [1994] 1 S.C.R. 670.

[29]            There can be no doubt that a driver in the position of Mr. Baechler owed a duty of care to all other persons using the roads he travelled that night; and there can similarly be no doubt that he owed a duty of care to all pedestrians, including Mr. Simpson, lawfully using the sidewalks and crosswalks adjacent to and crossing those roads.

[30]            The trial judge appears to have recognized this duty generally when he said at para. 38:

[38]      The common law duty imposed upon Mr. Baechler as the driver of an automobile was to drive in a manner that would allow him to take evasive action when he became aware, or ought to have become aware, of a pedestrian at the intersection, and to respond to the reasonably foreseeable actions or movements of that pedestrian.

[31]            Reasonable foreseeability is relevant, however, not only to the existence of a duty of care, but also to the standard of care to be exercised by a reasonable person in the circumstances.  In this context reasonable foreseeability is a question of mixed law and fact.  The standard of care is the content of the duty owed by the defendant.  In Ryan v. Victoria (City), [1999] 1 S.C.R. 201 Mr. Justice Major for the Court said:

[21]      The first step in the negligence analysis is to determine whether the Railways owed a duty of care to the appellant with regard to the configuration of the Store Street tracks.  If such a duty is found to exist, it must then be determined whether the Railways exercised the standard of care necessary to avoid breaching that duty.  The relationship between the duty and the standard of care was explained by MacDonald J.A. of the Nova Scotia Court of Appeal in Nova Mink Ltd. V. Trans-Canada Airlines, [1951] 2 D.L.R. 241, at p. 254:

It is the function of the Judge to determine whether there is any duty of care imposed by the law upon the defendant and if so, to define the measure of its proper performance; it is for the [trier  of fact] to determine, by reference to the criterion so declared, whether the defendant has failed in his legal duty.

…

The common law yields the conclusion that there is such a duty only where the circumstances of time, place, and person would create in the mind of a reasonable man in those circumstances such a probability of harm resulting to other persons as to require him to take care to avert that probable result.  This element of reasonable prevision of expectable harm soon came to be associated with a fictional Reasonable Man whose apprehensions of harm became the touchstone of the existence of duty, in the same way as his conduct in the face of such apprehended harm became the standard of conformity to that duty….

Thus, a discussion of duty centres around its existence, while the standard of care clarifies what the content of the duty is.  Where there is no duty there is no negligence.

[32]            It would appear that in this case the judge held the view that the applicable standard of care did not require Mr. Baechler to anticipate that a pedestrian, such as the plaintiff, would not see his approaching vehicle and would move from the south side of the utility pole into the crosswalk and into his path, and therefore did not require Mr. Baechler to drive at such a speed, and in such a manner, as to be able to guard against that possibility.

[33]            In my respectful opinion these conclusions were in error both in fact and in law.

[34]            As to the factual component, the judge inferred that Mr. Baechler did not see Mr. Simpson because the latter stopped on the south side of the utility pole to permit another southbound vehicle to pass.  In my view, this is nothing more than speculation.

[35]            That there was another southbound vehicle, and that it overtook and passed Mr. Baechler on his left as he passed through the intersection at 13^th Avenue, were accepted as facts based on Mr. Baechler’s evidence (para. 21).  There was, however, no evidence as to the other vehicle’s speed (while Mr. Baechler was accelerating from a dead stop to 50 km/hr), and there was no evidence as to how far ahead of Mr. Baechler’s vehicle that other vehicle was when it passed through the intersection at 12^th Avenue.  Nor was there any evidence as to where Mr. Simpson was when that other vehicle passed by, or as to whether indeed Mr. Simpson ever saw it.  While Mr. Simpson’s memory of the events is limited, he remembered seeing northbound vehicles approaching from south of 12^th Avenue, but not southbound vehicles approaching from the north (para. 19).

[36]            To postulate, as the trial judge did, that Mr. Simpson saw that other southbound vehicle and stopped on the south side of the utility pole to let that vehicle pass is to theorize without an adequate factual base.  But it was on that basis that the trial judge drew the following inference at paragraph 34:

[34]…I find as fact that he [Mr. Baechler] looked and saw no pedestrian approaching the intersection from the west because the pedestrian was standing behind the utility pole.

I would therefore consider this “finding of fact” to be a palpable error as unsupported by any evidence.

[37]            The simple fact of this accident is that, for an unknown period of time, the utility pole obscured Mr. Simpson’s view of southbound traffic coming from the north, and it obscured Mr. Baechler’s view of pedestrians using the sidewalk on the north side of 12^th Avenue and intending to cross Dogwood in the marked crosswalk.

[38]            There is no doubt that the utility pole created a dangerous situation for both motorists and pedestrians.  According to the trial judge’s findings, the intersection had “long been considered dangerous by Campbell River residents”, and “Mr. Baechler knew of the dangerous nature of the intersection” (see para. 17 above).  The judge found that “But for the presence of the pole, Mr. Simpson would have been able to see and would have seen the approaching Baechler vehicle.” (para. 24 above).

[39]            It must of necessity follow that but for the presence of the pole Mr. Baechler would also have been able to see, and would have seen Mr. Simpson standing on the corner.  However, as between Mr. Simpson and Mr. Baechler the trial judge put the whole of the burden for taking care in these dangerous circumstances on the pedestrian, Mr. Simpson.

[40]            Leaving aside the trial judge’s conjecture that Mr. Simpson stopped (for some unknown time) on the south side of the pole, there was every reason for all motorists, including Mr. Baechler, to approach that intersection with greater than usual care.

[41]            Mr. Baechler did not do so.  When he left the stoplight at 13^th Avenue:  “He moved to the right side of the [curb] lane as he proceeded south, anticipating the constriction of Dogwood from two lanes to one at the base of Dogwood Hill” (para. 20).  He shifted up to fourth gear and obtained a speed of 50 km/hr approaching 12^th Avenue (para. 21).  He “was focused on the approach to Dogwood Hill because of the narrowing of the road from two lanes to one” (para. 23).  He did not slow down, and he did not cover the brake with his foot.  He proceeded as though he did not have to concern himself with the possibility of a pedestrian crossing from west to east on a dark rainy night at a poorly lit intersection where there was a marked crosswalk.

[42]            Where a duty of care is owed, it is an error of law to conclude that the standard of care has been met when no steps at all have been taken to be careful.  To conclude that the standard of care is met and the duty therefore discharged by the taking of no steps whatsoever amounts to a finding that there was after all no duty on the driver.  That is an error of law: see Galaske at para. 40.

[43]            In Enright v. Marwick, 2004 BCCA 259, 28 B.C.L.R. (4^th) 276 a motorist with the right of way struck a pedestrian as he stepped out from behind a garbage can that together with the prevailing conditions of darkness and rainy weather obscured him from view.  The pedestrian was in violation of s. 179(2) of the Motor Vehicle Act, and the driver was entitled to assume that no one would jump out in front of him.  The driver had slowed to at least 33 km/hr, had his foot over the brake, and had kept a proper lookout.  The trial judge concluded that in the circumstances, that was enough.  This Court upheld that judgment.

[44]            Similarly, in this case, Mr. Baechler had the right of way, and Mr. Simpson was in breach of s. 179(2) of the MVA.  However, Mr. Baechler was not exempt from the common law duty of care.  Unlike the driver in Enright v. Marwick he took no steps to comply with that duty.  Mr. Baechler had to do more to exercise due care than simply continue along at the maximum allowable speed, foot on the accelerator, shifting up and assuming that there was no one waiting to cross when he knew or ought to have known that that was not a safe assumption.

[45]            At the hearing of this appeal counsel for Mr. Simpson sought to have Mr. Baechler’s liability apportioned at 20% of the total.  The question of apportionment must be determined by reference to blameworthiness.  In my respectful opinion, assigning 20% of the fault for this accident to Mr. Baechler and 40% rather than 60% to Mr. Simpson shares liability proportionally to their respective degrees of fault.

The Appeals of Telus and Campbell River (CA34962 and CA34976)

[46]            Neither Telus nor Campbell River concedes it was negligent.  However, neither offers any basis upon which the trial judge’s findings of negligence on their parts might be disturbed by this Court.  They advance their appeals on the ground that if they were negligent in failing to move the utility pole, their negligence played no causative role in the accident.

[47]            Causation is a question of fact and reviewable on a standard of palpable and overriding error.

[48]            Campbell River’s position is essentially that any negligence on its part “became irrelevant” because of the degree of responsibility for the accident borne by Mr. Simpson himself.  Campbell River, says Mr. Simpson, was familiar with the hazard posed by the pole, and could and should have ensured he was not stepping in front of oncoming traffic before he reached the pole and after he emerged from behind it.  Instead, he “clearly ignored his own knowledge, that his visibility to southbound traffic was obscured, as was his vision of such traffic.  To enter the intersection without checking was the sole cause of this accident”.  Campbell River submits that the “but for” test of causation is “unhelpful” when the conditions and potential danger are apparent and obvious to the plaintiff.  Campbell River also points to Mr. Simpson’s breach of s. 179(2).

[49]            Telus likewise submits that Mr. Simpson had an opportunity to check for oncoming traffic before he reached the pole and after he stepped out from behind it but before stepping into the street.  Telus also observes that Mr. Simpson did not have the right of way since he had not entered the crosswalk.  It says that had Mr. Simpson exercised reasonable care for his own safety, the unfortunate accident would not have occurred.

[50]            I respectfully agree with the appellant’s submission that the arguments of Telus and Campbell River amount “to an assertion that the causal link between its [their] negligence and the accident was severed” by the negligence of Mr. Simpson.

[51]            An accident can have more than one cause.  As counsel for Mr. Simpson puts it, “a defendant is not excused from liability because another tortfeasor is found to be negligent, contributory or otherwise”:  Negligence Act, R.S.B.C. 1996, c. 133, s. 1.

[52]            There was ample evidence to support the finding that the pole was a contributing cause of the accident.  There was evidence that the pole presented a hazard known to both Telus and Campbell River that they had failed to remove.  The learned trial judge found that had the pole not obstructed his view, Mr. Simpson would have been able to see and would have seen Mr. Baechler’s vehicle approaching.  Telus and Campbell River have not established any error with respect to that factual finding.  Mr. Simpson’s failure to see oncoming traffic when he had the opportunity to do so does not render “irrelevant” the fact of his view’s being obstructed by the hazardous utility pole as he waited to cross the street.  I would not disturb the finding of the trial judge that the utility pole was a cause of the accident.

V.         CONCLUSION

[53]            I would allow Mr. Simpson’s appeal, and substitute for the finding that Mr. Baechler was not negligent in any degree, a finding that Mr. Baechler was 20% at fault for the accident.  I would reduce the proportion of Mr. Simpson’s contributory negligence to 40%.  I would not disturb the findings that Campbell River and Telus were each 20% at fault, and I would dismiss their appeals.

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Mr. Justice Bauman”

I agree:

“The Honourable Madam Justice D. Smith”