2005 BCSC 60 Cashin v. Severin

Before: The Honourable Mr. Justice Parrett

Reasons for Judgment

Counsel for the plaintiff:	S.J. Oliver
Counsel for the defendants:	L.A.J. Dunn
Date and Place of Trial:	June 21, 22, 23, 2004
	Williams Lake, B.C.

INTRODUCTION

[1] The present trial is concerned solely with the determination of liability for a motor vehicle/pedestrian collision, which occurred on Highway 97 between 105 Mile House and 103 Mile House approximately 15 kilometres south of Lac La Hache on October 23, 1997.

BACKGROUND

[2] The plaintiff, Christopher Cashin, on the day of the collision, was four months past his 13^th birthday. He was born on June 10, 1984 and is presently 20 years of age.

[3] The collision occurred at approximately 4:00 p.m. in the southbound lane of Highway 97. At the time, it was daylight, and although it was cloudy, there was no precipitation and the paved surface of the highway was bare and dry.

[4] At the site of the collision, Highway 97 consists of two paved lanes, one in each direction. It is straight for a substantial distance both north and south of the accident scene with a descending grade of about 0.5% for southbound traffic approaching the accident scene. The travelled lanes are 3.7 metres wide and are divided by a double solid yellow line. The outer boundaries of each lane is marked by a white “fog” line with a paved shoulder approximately 2.3 metres wide extending from the fog line to the edge of the roadway. The posted speed limit was 90 kilometres per hour.

[5] The defendant, Valerie Marie Severin, is 28 years of age and at the time of the accident she was 21. On the day in question, the defendant was operating a 1991 Ford F150 4x4 pickup truck registered in the name of her father-in-law, David Peter Severin. Ms. Severin had spent the day with her sister-in-law and had left that residence to return to her own home which was located on Park Avenue just south of the accident scene. As she travelled south Ms. Severin caught up with and began following a vehicle, a pickup with either a camper or a canopy.

[6] At the time of the accident she had been following that vehicle for 2 or 3 kilometres or more.

[7] As she approached a group of teenagers walking south along Highway 97, one of them, the plaintiff, turned and moved into the southbound lane where he was struck by the vehicle driven by Ms. Severin.

[8] The defendant’s vehicle was damaged on the right front corner. The right end of a plastic bug deflector was broken, the leading edge at the top of the right fender had sustained a rounded dent, the right headlight and turn signal lens were shattered and there were fabric impressions on the right front and the right side of the fender.

[9] This is a tragic case; but there are limited facts in issue. The central issues in dispute are the location of the defendant’s pickup truck within its lane immediately prior to impact and its position in relation to the preceding vehicle. While there are some additional areas of dispute, and the evidence is somewhat contradictory in other areas, these are the central issues on the liability hearing.

THE GROUP OF TEENAGERS

[10] After school, a group of six young teenagers set out from the Read residence where they had gathered to walk to 103 Mile House. The group included the plaintiff Christopher Cashin, then 13 years of age; his 15 year old brother Kevin; Jessie Kunce, Alicia Kulyk (14), Sarah Melenson and Jonquil Crosby (14). The purpose of the trip was mixed; at least some of the group was hoping to buy some alcohol, while others intended to visit friends.

[11] After reaching Highway 97, one of them, Jessie Kunce, crossed the highway to the east shoulder to speak to a hitchhiker while the other five began to walk, in a group, south on the west shoulder.

[12] Christopher Cashin was walking closest to the fog line, within a foot of that line, and next to Alicia Kulyk and Jonquil Crosby. He prepared to cross the highway by looking both ways, then waited for a large vehicle heading south to pass. This vehicle was variously described as a pickup with a camper or a canopy or possibly a motor home or a van.

[13] As this vehicle passed, the plaintiff turned to his left and started across the road when he was struck by the defendant’s vehicle. The witnesses, from his group of friends, varied in their estimate of how far he travelled before he was hit. Alicia Kulyk testified that it was two strides at most. Jonquil Crosby testified that he turned to his left and took one step and was 1’ to 1½’ across the fog line when he was hit. The plaintiff’s brother, Kevin, testified that it was less than half a second after the lead vehicle passed that his brother turned, stepped out and was hit. He estimated that Christopher Cashin was about 1’ west of the fog line when he started and that he moved a maximum of 1’ to 1½’ onto the road surface before he was hit.

THE DEFENDANT

[14] The defendant testified that she was travelling south on Highway 97 from 108 Mile House, at 80 to 90 kph, following a ‘dark vehicle’ with a canopy. At a distance, she estimated as some 250 yards, she saw a group of pedestrians, walking south, ahead of her. One of the pedestrians was on the left hand shoulder and the rest were on her right on the shoulder. She testified that from their body size and structure she thought they were in their mid-teens.

[15] Ms. Severin testified that she moved her vehicle close to the centre line; that she may have shifted down from overdrive to 4^th gear, and that she took her foot off the gas. At the time of impact, she estimated her speed at 80 kph.

[16] She testified that without warning the plaintiff took a hop and a stride into the road and was hit by her truck.

[17] Ms. Severin had lived in that area for some time and frequently travelled Highway 97. She was well aware that there were residences in the area and frequently saw pedestrians along the highway.

[18] Ms. Severin was a young woman at the time of this collision and was clearly traumatized by these events. It is clear that she has been troubled by her involvement in this incident and that, to some extent, she has reconstructed what occurred.

[19] It is clear that in her statement to the police the next day, her recollection was relatively fresh. In that statement she said that the plaintiff took one step and she hit him. This recollection is given both on p. 1 and on p. 2 of her statement. In her evidence at trial, she testified that she thought he was 3 to 4 feet into her lane when she hit him.

THE NORTHBOUND VEHICLE

[20] At the time of this collision, Darren O’Reilly, a 45 year old commercial sales representative for Kal Tire, was travelling north on Highway 97 approaching the scene from the south. At a distance of ½ to ¾ of a mile, he saw the group of teenagers walking south and one run across to the other side of the road.

[21] Mr. O’Reilly described the vehicle coming south as slowing and moving towards the centre line. He then saw the plaintiff moving quickly, and being run over by one of the truck’s tires.

[22] Mr. O’Reilly testified that he was concerned about the group of children and that, as a result, he took his vehicle off cruise control, slowed and prepared to brake. He felt the pedestrian situation called for extreme caution.

[23] Under cross-examination he testified that he did not remember seeing another southbound vehicle and that, in his view, it was not possible that there were two vehicles travelling close together. He went on to say that he saw the plaintiff hunch over but didn’t see him move and that a ‘millisecond after he hunched over he was hit’.

[24] Mr. O’Reilly, when pressed, insisted that there was no other southbound vehicle and that he had observed the defendant’s vehicle from the time it crested the hill to the north and as it came south towards the group of teenagers.

[25] Mr. O’Reilly’s wife, Wynne, was travelling in the front passenger seat with him. In most respects, her evidence mirrored that of her husband. She did not see a second southbound vehicle and did not see the plaintiff move before impact. What she recalls was seeing a shoe come flying off and something under the right front wheel.

THE ENGINEER’S EVIDENCE

[26] The defendant tendered evidence and a report prepared by an engineer, Duane MacInnes of MacInnes Engineering Associates Ltd. Mr. MacInnes’ report presents a series of measurements and theoretical calculations aimed at establishing that, from the time the plaintiff entered the travelled surface of the highway in the manner he did, the collision was unavoidable.

[27] There are two key assumptions to the theoretical calculations prepared by Mr. MacInnes. The first of these is his assumption that Ms. Severin had moved the left side of her vehicle over to the centre line of the highway; and the second is his assumption that the defendant had no opportunity to react until she saw the plaintiff begin to move onto the roadway and towards her.

[28] Two aspects of Mr. MacInnes’ evidence are important. His calculations at trial included an opinion that if, as she testified at trial, the defendant had been trailing the vehicle ahead of her by 3 seconds then the plaintiff had time to cross the lane. Secondly, that the speed at which the defendant was travelling and the extent to which the vehicle had moved towards the centre line were key factors in the avoidability of the collision.

SUBMISSIONS

[29] The plaintiff, in this case, submits that the important issue is what Ms. Severin did before he entered the roadway. He concedes that he is partially at fault for the accident but submits that there is contributory negligence on the part of the defendant.

[30] The precautions available to the defendant were precisely those taken by Mr. O’Reilly as he drove north. He slowed and prepared to brake. Those simple precautions would have significantly reduced the likelihood of the collision, or in all likelihood, the severity of the injuries the plaintiff suffered.

[31] The defendant submits that the plaintiff was old enough to be found negligent for his actions and that they were the effective cause of this accident. The defendant submits that the plaintiff’s sudden action left her with no chance to avoid the collision and that the plaintiff should be held solely liable.

DISCUSSION

[32] I said at the beginning of these reasons that many of the facts were not in dispute. The areas of dispute are, however, of some importance.

[33] I say at the outset that this is not a case of credibility but rather of reliability. I am satisfied that all witnesses who appeared at this trial did their best to tell the truth. Regrettably, this is a case which, to a significant extent, demonstrates some of the frailties of eye witness testimony, particularly when the evidence relates to events seven years in the past.

[34] There is no issue that the plaintiff was negligent in entering the travelled surface of the highway without checking for traffic and when it was unsafe to do so. The issue is whether the defendant was, in the circumstances, contributorily negligent.

[35] The defendant, in her evidence, suggested that she was travelling some three seconds behind the vehicle ahead of her. She went on to say that she was a ‘very good distance behind’ and suggested it was as much as 12 to 14 car lengths. She admitted, in the course of her evidence, that she had ‘recreated the situation’ by going out and watching vehicles.

[36] The wheelbase of Ms. Severin’s pickup truck was 2.97 metres (its overall length 4.93 m.). Using that measurement, her estimate of 12 to 14 car lengths would place her between 59.16 and 69.02 metres behind the lead vehicle. Mr. MacInnes’ calculations do not include a total braking distance but, given the defendant’s evidence that she saw the plaintiff turn, hop and start to move into the roadway, I am satisfied that although she was surprised by his actions, there was no delay in her response to them.

[37] This aspect of Ms. Severin’s evidence demonstrates the danger of reconstruction, particularly when the incident is tragic and it is one you wish to satisfy yourself, as much as others, that you could not have avoided.

[38] On the evidence as a whole, I am satisfied that the reconstruction evidence of the defendant is inaccurate. I accept the evidence of Alicia Kulyk, Jonquil Crosby and Kevin Cashin that, as the lead vehicle passed, the plaintiff turned and started across and was hit. The time interval was very short – perhaps on the order of a second – but it was not 3 seconds (which would have allowed the plaintiff to cross the lane of traffic).

[39] This evidence not only is consistent with respect to the three witnesses mentioned, it is also consistent with the statement Ms. Severin gave to the police, the next day, concerning the accident. In that statement she said that she was following the lead vehicle at a distance of 2 to 3 car lengths at a speed of 80 to 90 kph. She went on to tell the police that ‘he took one step and I hit him’.

[40] This whole body of evidence is consistent and places the defendant close behind the lead vehicle, at a speed near that of the speed limit.

[41] The second thing apparent from this evidence is that it negates the defendant’s evidence that she moved her vehicle to the left and placed the left hand edge of her vehicle near or on the centre line of the highway. If Ms. Severin had taken that precaution, the right hand edge of her vehicle where the impact occurred would have been 1.8 metres from the fog line and some 2 metres from the plaintiff’s location on the shoulder. This is completely inconsistent with all of the evidence indicating the plaintiff took one step and was hit.

[42] The O’Reilly’s evidence concerning the accident included their evidence that prior to the accident they saw the plaintiff’s vehicle pull over to the centre line. The difficulty with this is that neither of the O’Reilly’s saw the second southbound vehicle ahead of the plaintiff and both denied that such a vehicle existed.

[43] I am completely satisfied on the whole of the evidence that such a vehicle existed and Ms. Severin had followed that vehicle, close behind it for over 2 to 3 kilometres, as she drove south towards the accident scene. The only colour description of this vehicle was Ms. Severin’s description as a dark colour. This would make the vehicle at least somewhat similar to the dark blue of Ms. Severin’s pickup.

[44] I find that, on the balance of probability, Mr. and Mrs. O’Reilly are mistaken in their observations and that the vehicle they observed pull over towards the centre line was, in fact, the lead vehicle which cleared the scene when they observed the plaintiff's shoe flying off after impact.

[45] On the whole of the evidence, I find that the defendant, Ms. Severin, after observing young teenagers on both sides of the highway at a considerable distance, continued to drive south at or near the speed limit, close behind the lead vehicle and without moving her vehicle appreciably towards the centre line.

[46] Although she may have taken her foot off the gas, this did not affect her vehicle’s speed on the downhill grade. She did not place her foot on or prepare to brake as she approached the group of teenagers and she did not sound her horn as she approached.

[47] One of the interesting discrepancies between the evidence of that of Ms. Severin and that of the O’Reilly’s is in the area of their observations of the group of teenagers.

[48] Ms. Severin described the teenagers as walking south in an orderly fashion without any horseplay or indication of a potential problem. Mr. O’Reilly, in contrast, described the teenagers as milling around and acting weird. He assessed the situation as one which called for extreme caution. Mrs. O’Reilly, from the passenger seat, described the group as ‘walking and milling around’. She testified that a couple of the group were walking backwards and they were talking. She indicated that from her observations she was quite concerned.

[49] I accept this evidence from the O’Reillys as to the activities they observed and conclude that either Ms. Severin was not paying attention to the pedestrians as she approached or her proximity to the lead vehicle obscured her field of view.

[50] I also find that the point of impact occurred within 1 to 2 feet of the fog line after the plaintiff had taken approximately one step onto the road surface.

[51] I accept that at the time the plaintiff turned and stepped into the travelled surface of the road, Ms. Severin had little, if any, chance of avoiding him. The question remains whether or not her actions (or lack of them) after observing the teenagers on the shoulder ahead of her were reasonable and whether or not her response or lack thereof to the situation before her constituted a breach of a duty of care she owed to the plaintiff amounting to contributory negligence.

THE AUTHORITIES

[52] In Walker v. Brownlee and Harmon (1952), 2 D.L.R. 450, Cartwright J. (as he then was) considered the duty incumbent on a driver enjoying the statutory right-of-way. At p. 460 he observed that:

The duty of a driver having the statutory right-of-way has been discussed in many cases. In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221, at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it. To put it another way: that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

. . .

In applying this principle, it is necessary to bear in mind the statement of Lord Atkinson in Toronto R.W. Co. v. King, 7 C.R.C. 408, at p. 417, [1908] A.C. 260 at p. 269: “Traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.”

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[53] In Walker v. Brownlee, the court was considering the issue of duties as between two drivers, but the same principles have been applied as between a driver and a pedestrian in McIntyre v. Morgan, [1980] B.C.J. No. 2182, where Toy J., as he then was, concluded that:

I do not conceive that there is any substantial difference between the standards of care for drivers of motor vehicles that are in collision and the case where a driver and a pedestrian come into contact with one another. The rule for drivers who have a right-of-way is dealt with in the majority judgment in the Supreme Court of Canada in Walker v. Brownlee and Harmon (1952), 2 D.L.R. 450.

[54] The defendant, Ms. Severin, was proceeding on a highway with a statutory right-of-way. The burden of proof rests on the plaintiff in these circumstances to establish that Ms. Severin ought to have appreciated that the plaintiff might disregard her right-of-way and enter her path of travel.

[55] I am satisfied that in this case the plaintiff has met that burden and that Ms. Severin had a sufficient opportunity to avoid the accident and that a reasonably careful and skilful driver would have taken those precautionary steps.

[56] The measure of that proposition can be found in the assessment of the situation and the precautionary steps taken by the northbound driver, Mr. O’Reilly. It is also evident in my findings that the lead vehicle proceeding south ahead of Ms. Severin pulled over to the centre line as it approached the group of pedestrians.

[57] The parties provided me with a substantial body of authority involving pedestrian collision cases. Without reviewing the particulars of each of these cases, each, in my view, differs in some significant way from the circumstances of this case.

[58] Mr. Dunn would have the court approach the present case as one of the ‘darting cases’ where the driver, from the moment the pedestrian started into the roadway, had no opportunity to avoid the collision.

[59] In my respectful view, that is not the appropriate analysis in the circumstances of this case. The defendant, Ms. Severin, in this case, observed at a substantial distance, the presence of young teenagers on both sides of the highway. She failed to observe the clear indicators described by Mr. and Mrs. O’Reilly which led them to take precautions and approach with caution.

[60] Ms. Severin had the opportunity to slow her vehicle, prepare to brake, to open the distance between herself and the lead vehicle and to move her vehicle to the left towards the centre line. She took none of these reasonable precautions. Ms. Severin’s opportunity to avoid this collision did not occur at the moment the plaintiff moved into her path but earlier as she approached the scene in circumstances where a reasonable driver would take precautions.

[61] In my view, the plaintiff must bear the larger share of liability for these tragic results, but I find Ms. Severin contributorily negligent. I assess their respective degrees of fault at 60% for the plaintiff and 40% for Ms. Severin.

[62] In the event counsel are unable to agree on costs, they may be spoken to.

“W.G. Parrett, J.”
The Honourable Mr. Justice W.G. Parrett

Citation:	*Cashin v. Severin*
	2005 BCSC 60