IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120411

Docket: 57495

Registry:
Nanaimo

Between:

Kristina E. Leigh

Plaintiff

And

Delaine Mead

Defendant

Before:
The Honourable Mr. Justice D.A. Halfyard

Reasons for Judgment

The Action

[1]            
This has been the trial of an action for damages for personal injuries,
on the issue of liability only. The plaintiff, Kristina Leigh alleges that she
was injured as a pedestrian when she was struck by a motor vehicle being driven
by the defendant, on September 7, 2007, at Nanaimo. It is alleged that the said
accident was caused by the negligence of the defendant in the operation of her
motor vehicle.

[2]            
The defendant, Delaine Mead admits that the side view mirror of her
motor vehicle was in a minor collision with the person of the plaintiff, but
denies liability for the accident. She says that the accident was caused solely
by the plaintiff’s own negligence. In the alternative, the defendant alleges
that the plaintiff’s negligence was a contributing cause of the accident.

Overview of the Trial

[3]            
The plaintiff called two witnesses, herself and Shirley Vierstra. The
defendant was the only witness who testified for the defence. Only a few
documentary exhibits were filed, which included three photographs, an incident
report made by the plaintiff to her employer on September 17, 2007 and the
defendant’s statement to an adjuster for the Insurance Corporation of British
Columbia on October 16, 2007. The evidence and arguments were completed in one
day.

The Evidence

The testimony of the plaintiff, Kristina Leigh

[4]            
I will first summarize the evidence given by the plaintiff on direct
examination.

[5]            
The plaintiff had been working for B.C. Ferries at Nanaimo, for 20
years, the last seven years as a ticket agent at the Departure Bay Terminal. On
the morning of September 17, 2007, she was working as a ticket agent in one of
the five small buildings or booths located at the entrance to the Departure Bay
Ferry Terminal. The drivers of motor vehicles intending to travel by ferry from
Departure Bay to Horseshoe Bay had to purchase a ticket at one of these booths,
before they could enter the ferry terminal parking lot to wait until boarding
time. The ticket agent opens a sliding window in the ticket booth, which is
located on the driver’s side of motor vehicles which drive up to the booth to
purchase a ticket. The ticket booth window and the driver’s door window are
quite close to each other when each vehicle stops, so that tickets can be paid
for, and handed to the drivers, without it being necessary for a driver to get
out of his or her vehicle. Nor is it necessary for the ticket agent to come
outside the ticket booth, except when it is necessary to measure the length or
height of a vehicle.

[6]            
At around 9:00 a.m. on September 17, 2007, a woman driving a pickup
truck with camper drove up to the plaintiff’s ticket booth and stopped. The
truck had a diesel engine, which was loud, making it difficult to hear. The
woman told the plaintiff that she had a reservation for her vehicle, and the
plaintiff found a record of this reservation on the computer system. The
reservation was for a vehicle not exceeding 20 feet in length, but the
plaintiff suspected that it might be longer than that and so she went out of
the ticket booth and measured the length of the pickup truck. She found it to
be 24 feet long. The woman (who was alone) became angry, when the plaintiff
told her what the price of the ticket would be. She objected to the price being
charged. The plaintiff saw that the woman had a gold Care Card in her hand and
since it was a day of the week on which senior citizens were not charged a
passenger fare, the plaintiff deducted the passenger fare from the overall
price being charged. The woman continued to object and complain.

[7]            
The woman had handed payment to the plaintiff, and the plaintiff handed
the ticket to her, in return. The woman asked what vehicle lane she should park
in, and the plaintiff told her “lane 18”.

[8]            
The woman then got out of her pickup truck, and walked forward and up to
another ferry worker who was walking past. The plaintiff heard the woman say to
the man, that she did not know what lane she was supposed to drive into. The plaintiff
heard the man tell the woman that it was lane 18, and that it was written on
her ticket. The woman then said to the plaintiff (who was in her ticket booth,
but within sight and hearing) that she would get the plaintiff fired from her
job. The plaintiff then stated that she had had enough, and told the woman to
pull her truck over to the left, just past the ticket booth and that she would
get a manager. The plaintiff then came out of her ticket booth.

[9]            
The woman then drove her pickup truck forward, and the side view mirror
on the driver’s side hit the plaintiff on her arm. The woman then said “Good,
I’ll sue you for breaking my mirror”. She then drove away to lane 18 in the
parking lot and stopped.

[10]        
The plaintiff identified the defendant in court, as being the driver of
the pickup truck.

[11]        
The woman never turned her truck engine off although the plaintiff had
asked her to do so. Ms. Mead told the plaintiff that she would not be able to
start the engine again, if she shut it off.

[12]        
The plaintiff had a hard time hearing Ms. Mead, and Ms. Mead had to yell
quite loudly so that the plaintiff could hear her, during the transaction.

[13]        
The plaintiff identified photographs of a pickup truck as being similar
to the truck driven by Ms. Mead. (The photographs were entered as Exhibit 1).
It only took the plaintiff a few seconds to measure the length of Ms. Mead’s
truck. Ms. Mead paid for her ticket with a credit card. There was no hurry, and
Ms. Mead had lots of time to catch the ferry. The plaintiff did not tell Ms.
Mead that she might not get on the ferry.

[14]        
The plaintiff saw the Care Card in Ms. Mead’s hand and asked about it,
because Ms. Mead had not yet mentioned it.

[15]        
The plaintiff repeated that Ms. Mead got very angry, said her truck had
never been measured before, was yelling about the price and was yelling about a
friend of hers who worked on the ferry who was having trouble with other ferry
workers being mean and rude to her.

[16]        
When Ms. Mead got out of her truck to go and talk to the other ferry
worker, she left her truck running and closed the truck door. The plaintiff did
not know the ferry worker to whom Ms. Mead was talking, but she could hear them
talking though the back door of the ticket booth, which she had opened so that
she could hear them.

[17]        
Ms. Mead should have known what lane she was supposed to drive into,
because the plaintiff had told her twice what the lane number was. The
plaintiff was not worried about Ms. Mead making a complaint about her to her
superiors.

[18]        
After she spoke to the other ferry worker, Ms. Mead got back into her
truck, and was still yelling out that she would make sure the plaintiff got
fired. Her truck was still stopped beside the ticket booth. The plaintiff
wanted the manager to come out and so she went out of her booth, to a position
beside the front tire on the driver’s side of the defendant’s vehicle. She was
standing on the narrow cement curb which runs below the window of the ticket
booth. She put one foot on the curb and one foot on the roadway. Within
seconds, Ms. Mead drove her truck forward. The plaintiff did not know that Ms.
Mead had put her transmission into the drive position, or that she was going to
step on the gas and move forward. The plaintiff was standing about two feet
away from the side mirror on the driver’s side of Ms. Mead’s truck. The truck
moved forward suddenly, and gave the plaintiff no chance to step back and out
of the way behind the ticket booth.

[19]        
The plaintiff was not worried about Ms. Mead making a complaint against
her. She herself had tried to call a manager at some point during the
confrontation, but the manager was not available. She believes that she did not
ever yell at Ms. Mead, but only talked loud enough to be heard over the engine
noise. She might have yelled louder at Ms. Mead, after hearing what she told
the other ferry worker.

[20]        
She never thought that Ms. Mead would drive forward when she did and
thought the truck transmission was still in the park position (although she did
not know whether the transmission was automatic or standard). She did not make
any signal to Ms. Mead to stop the truck. It happened too fast for her to get
out of the way. Before the truck moved forward, the plaintiff had pointed to
the place where she wanted Ms. Mead to drive, which would require Ms. Mead to
drive forward a very short distance and then make a hard left hand turn.

[21]        
The whole incident took perhaps ten minutes in total, which was longer
than usual. But traffic was not being held up, and the plaintiff was not
worried about holding things up. She never insulted Ms. Mead or swore at her.
She does not recall telling Ms. Mead that she could not get on the ferry. She
does not know whether she did, or did not, say that.

[22]        
That is a summary of the evidence given by the plaintiff on direct
examination.

[23]        
The plaintiff was cross-examined extensively on her version of events.

[24]        
The plaintiff confirmed that she only opened the door to her ticket
booth, so that she could hear what Ms. Mead was saying to the other ferry
worker. When Ms. Mead’s truck was stopped beside the ticket booth, it was close
enough so that she and Ms. Mead could exchange the documents necessary to
complete the transaction, hand to hand. The front of Ms. Mead’s truck, while it
was stopped there, was approximately adjacent to the back end of the ticket
booth, where the only door was located. When the plaintiff went out the door to
confront Ms. Mead, she had to turn right and then go between the front part of
the driver’s side of the truck, and the ticket booth. The front bumper of the truck
was not quite to the end of the ticket booth building, but was about eight to
ten inches short of that point. The width of the sidewalk was perhaps ten
inches, and the height of it was less than a foot.

[25]        
Counsel put it to the plaintiff that Ms. Mead had turned off her truck
engine. The plaintiff denied this and said that she was certain that she had
asked Ms. Mead to turn the engine off, but Ms. Mead had said “no”, and that she
would have trouble restarting it.

[26]        
The plaintiff did not recall whether Ms. Mead said that she had paid
less for a vehicle ticket a week earlier. She did not recall whether Ms. Mead
said she thought the ticket price was “not far off”, after the plaintiff had
deducted the cost of her passenger fare from the initial ticket price (based on
the Care Card). She said that Ms. Mead got angry when the plaintiff told her
that she had to measure the truck, and Ms. Mead never calmed down after that
time. The plaintiff said that she herself never got angry, during the
transaction.

[27]        
Counsel suggested to the plaintiff that Ms. Mead had said she would not
pay the initial price demanded by the plaintiff, and that the plaintiff replied
by saying something like “If you don’t like it, you can leave and not get on
the ferry.” The plaintiff said that she did not recall such conversation.

[28]        
On being asked how Ms. Mead paid for her ticket, the plaintiff said she
could not recall whether she paid by cash or by credit card. She said she
handed Ms. Mead her ticket, her change and receipt, and told her to drive into
lane 18. She said she also gave Ms. Mead tickets for the propane tank (or
tanks) she was carrying. Counsel suggested to the plaintiff that she was upset
by what Ms. Mead had said, and the plaintiff answered “not really”, but added
that maybe she was frustrated.

[29]        
When questioned about when she had tried to make a telephone call to a
manager, the plaintiff said that she did not do this until after she was hit by
Ms. Mead’s truck, and found that no manager was available.

[30]        
Counsel established that, on her examination for discovery on March 3,
2011, the plaintiff had testified to the effect that she closed the window of
her ticket booth because she had had enough of Ms. Mead and her noisy truck and
because the transaction was completed (Q. 339-340). On discovery the plaintiff
also testified that, after she closed the window, Ms. Mead continued yelling
and honking her horn, was irate, and so the plaintiff did not open her window
(Q. 345-346). I understood the plaintiff to accept her discovery evidence as
being true (and no inconsistency was suggested).

[31]        
The plaintiff then stated that she could not now remember at what point
during the incident she tried to call a manager.

[32]        
Counsel suggested to the plaintiff that she heard Ms. Mead tell the
other ferry worker that she (the plaintiff) wouldn’t tell her what lane she was
supposed to drive into. The plaintiff answered that she was not sure whether
Ms. Mead had told the other worker that she (the plaintiff) would not tell her
where to go, or whether she just told him that she did not know where to go.
Counsel then established that, on discovery, the plaintiff had testified that
Ms. Mead told the ferry employee “that I refused to tell her what lane” (Q.
349-350). The plaintiff acknowledged what she had said on discovery, but
reasserted that she is now not sure how Ms. Mead had expressed herself to the
other ferry worker.

[33]        
When asked whether it was possible that Ms. Mead did not hear the
plaintiff tell her to go to lane number 18, the plaintiff answered that it was.

[34]        
The plaintiff testified that, after she and Ms. Mead had completed their
ticket transaction, she expected Ms. Mead to drive away, into lane 18. She said
that it was approximately one minute from the time Ms. Mead got back into her
truck (after talking to the other ferry worker) to the time when she was hit by
the truck mirror.

[35]        
The plaintiff insisted that she had done nothing wrong, and that she was
not worried about Ms. Mead making a complaint against her. When counsel
suggested to her that she was frustrated and angry, so she went quickly out of
her ticket booth and turned to the right, just as Ms. Mead was starting to pull
away from the ticket booth, the plaintiff denied this. She said, in substance
that “I just got out there and the mirror hit me”.

[36]        
The plaintiff said that the mirror hit her on her left upper arm, and
that the truck stopped right away. She said the truck had moved two to three
feet. And, she said that, when she rounded the corner of the ticket booth she
would only be two or three feet away from the mirror.

[37]        
The plaintiff said that, when she got outside the booth to that location
beside the truck, she told Ms. Mead that she wanted her to pull off and that
she was going to get a manager. The plaintiff stated that, as soon as she spoke
those words, the truck moved forward. She said that she made eye contact with
Ms. Mead, when she came outside the booth. She said that she had walked around
the corner of the booth, and towards the driver’s window of Ms. Mead’s truck,
and then stopped. She said that she could have reached out and touched the side
view mirror, from the point where she was standing. She said that, while in
that position, she was telling Ms. Mead where to drive to, and pointing with
her left arm, signalling for Ms. Mead to make a left turn. She said she was
pointing over and back with her left arm (which seemed to be an awkward arm position).
She said Ms. Mead’s driver’s window was open at that time.

[38]        
The plaintiff said that she was not knocked down when the mirror struck
her, but the mirror folded in as a result of the collision. She said she was
pushed back a bit by the collision. Ms. Mead then said “I’ll sue you”.  The
plaintiff said that at this time, she was in a position approximately beside
the driver’s door, and that she herself then pulled the mirror back out to its
original position, to show Ms. Mead that it was not broken.

[39]        
The plaintiff said that she went back into her ticket booth, and Ms.
Mead drove away into the parking lot area.

[40]        
The plaintiff was shown a copy of an Incident Report, and she stated
that she had prepared this report and had signed it, that same day. Counsel
suggested that the plaintiff had written in her report that another worker had
seen the accident occur. The plaintiff answered that she had said something
like that, but was not sure of the exact words that she had written.

[41]        
Counsel then established that, at page two of her Incident Report, the
plaintiff had stated: “Another co-worker heard this lady yelling at me and saw
her accelerate.” The plaintiff said that the co-worker had asked her what had
happened, and she (the plaintiff) had told her. The co-worker had stated that
she, (the co-worker) had seen the truck, and had seen it move forward. (I
understood the plaintiff to mean that her co-worker had not claimed to have
seen the collision between the truck and the plaintiff.)

[42]        
That is a summary of the main points covered in the plaintiff’s
cross-examination.

Shirley Vierstra

[43]        
Shirley Vierstra was a long-time employee of the B.C. Ferries.  On the
morning of September 17, 2007, she was working as a ticket booth attendant at
the Departure Bay Ferry Terminal. She was in a booth near to the booth where
the plaintiff was working, but the plaintiff’s booth would be behind Ms.
Vierstra when she was dealing with drivers of motor vehicles through the window
of her own ticket booth.

[44]        
Ms. Vierstra noticed that a pickup truck with camper had been at the
plaintiff’s ticket booth for quite a long time. She saw the plaintiff measure
the length of the vehicle. She sensed that something was not right from the
sound of the conversation she could hear. She did hear the pickup truck
running, but was not sure whether it was running for the whole time. She could
not tell whether the truck had a diesel engine or a gas engine.

[45]        
Both the plaintiff and the driver of the pickup truck raised their
voices during the transaction. The driver raised her voice to a greater extent
than did the plaintiff, and her body language indicated that she was upset.
Towards the end of the incident, the driver of the pickup honked her horn, and
at that time the plaintiff was in her ticket booth. She saw the plaintiff come
out of the ticket booth and go to a position at or near the driver’s window,
between the truck and the ticket booth building.

[46]        
Ms. Vierstra did not see the truck when it began to drive away from the
ticket booth, and she did not see the truck hit the plaintiff. She did not see
the truck move forward and then stop. She only heard the sound of the truck
engine accelerating and when she looked again, the truck had driven away from
the ticket booth.

[47]        
Ms. Vierstra called out to the plaintiff and asked her what happened.
The plaintiff said “she hit me.”

[48]        
Ms. Vierstra does not know whether the plaintiff was upset or whether
she was just trying to explain something to the driver of the pickup truck.

[49]        
On cross-examination, Ms. Vierstra stated that she was at work selling
tickets to drivers of motor vehicles, and so she was not watching what was
occurring at the plaintiff’s ticket booth, the whole time. She confirmed that
she did hear the pickup truck accelerate.

[50]        
Counsel asked Ms. Vierstra whether she had ever told the plaintiff that
she had seen the truck accelerate. She said she could not recall. She said she
and the plaintiff did discuss the incident, but said that they did not discuss
the question of whether or not she (Ms. Vierstra) had seen the truck hit the
plaintiff. Ms. Vierstra said that she could not make out the words of the
conversation between the plaintiff and the truck driver. She said she could tell
that it was not a regular conversation, from the body language. She said she
could see the driver better than she could see the plaintiff, due to the
obstruction of her vision by the pickup truck.

[51]        
That is a summary of the evidence called by the plaintiff.

The testimony of the defendant, Delaine Mead

[52]        
Ms. Mead is 72 years of age and she retired from working in 1998. She
had operated a horse and carriage business in Courtenay for a number of years,
before retiring. At the time of the accident, she was living in Agassiz, B.C.
She is in good health, except for being a diabetic.

[53]        
On September 17, 2007, Ms. Mead was on Vancouver Island and intending to
catch the 10:00 a.m. ferry from Departure Bay to Horseshoe Bay. She had been
visiting in Courtenay and her friend had telephoned B.C. Ferries and had
arranged a reservation for her truck for that particular ferry. Her truck was a
2004 Chevrolet pickup, with a camper on the back. It had a diesel engine and an
automatic transmission. The diesel engine was noisier than a gas engine would
be. The truck was in excellent condition and she had not had any problems with
starting the engine.

[54]        
Ms. Mead arrived at the Departure Bay Ferry terminal in plenty of time,
about an hour before sailing time. She drove up to the ticket booth in which
the plaintiff was working. She turned off her truck engine. Ms. Mead told the
plaintiff that she had a reservation and showed the plaintiff her gold card
(Care Card). The plaintiff then measured the length of her truck, and told Ms.
Mead what the price would be. Ms. Mead told the plaintiff that the price was
higher than when she had crossed on the ferry a week earlier. The plaintiff
said words to the effect: “If you don’t like it you can leave.” Ms. Mead
obviously wanted to get on the ferry, and told the plaintiff that she had a
reservation, and handed her cash to pay for the fare. The plaintiff took the
money, and gave Ms. Mead tickets for the ferry and for her propane tanks and also
handed her the change from the money she had paid. The plaintiff did not tell
her what lane she should drive into, to wait for the ferry. The plaintiff
slammed the window shut.

[55]        
Not knowing what lane she was supposed to drive to, Ms. Mead got out of
her truck and walked out past the front of it, to a man who appeared to be a
ferry worker. She showed him her ticket and asked him what lane she should
drive into. He told her, “Lane 18.”Ms. Mead went back and got into her truck.
She does not know whether she left the engine running while she got out to talk
to the man, or not. She put her truck in gear, and started moving forward. All
of a sudden she saw something orange to her left and hit the brakes but her
side view mirror was hit. The truck stopped immediately. The side view mirror
had been folded in from the contact with the plaintiff, who was then waving her
arms and hollering, after stepping back a little. The plaintiff directed quite
a few vulgar words towards Ms. Mead. Ms. Mead does not remember if she
responded, but allows that she might have said something like “You should be
reported.”

[56]        
Ms. Mead was looking ahead and to her right (in the direction where she
was going to drive into the parking lot) when the collision with the plaintiff
occurred. She did not see the mirror hit the plaintiff, but she heard it. When
she started to drive forward, Ms. Mead did not see anyone in front of her truck
or to the left of it.

[57]        
Ms. Mead thought that she herself had pushed her side view mirror back
into its proper place, after she had parked in lane 18. She had no recollection
of the plaintiff pulling the mirror back into position, and said that the
plaintiff wasn’t that close to her after the collision. (In answer to later
questions by the court, Ms. Mead said that she did not think the plaintiff had
been hurt, that the plaintiff went away, and that she drove away, into the
ferry terminal parking lot.)

[58]        
After parking in lane 18, Ms. Mead went into a coffee shop in the
terminal building and, while there made a report of the incident to a ferry
worker. She then caught the ferry to Horseshoe Bay, and drove to Hope. The next
day, Ms. Mead suffered a heart attack and spent a week in the hospital.

[59]        
That is a summary of the testimony given by Ms. Mead in her direct
examination.

[60]        
Counsel for the plaintiff cross-examined Ms. Mead at some length.

[61]        
Upon being challenged, Ms. Mead repeated much of what she had said in
her direct examination, and added a few details on some points. She said she
had taken the ferry trip lots of times, and that the ticket agent always tells
her the lane number to drive into to wait for the ferry. She said she paid for
the fare with a $100 bill.

[62]        
Counsel suggested to Ms. Mead that she became quite angry. Ms. Mead
answered that she did not recall being angry, only being surprised at the
higher price quoted by the plaintiff. She said, in effect, that the plaintiff
said she was not going to allow her to get on the ferry when she questioned the
price that was being charged. Ms. Mead said that she responded by saying that
she had a reservation and passed a $100 bill to the plaintiff. She said that
the plaintiff took the money, gave her the tickets and the change, and slammed
her window shut. She said that ended the conversation between them.

[63]        
Ms. Mead could not recall the plaintiff telling her that the initial
price that she had quoted would be reduced because she had a Care Card.

[64]        
Ms. Mead said that she did not see the plaintiff at all, when she went
to talk to the other ferry worker to find out which lane she should go to. She said
she was surprised when the man told her that the lane number was printed on her
ticket.

[65]        
Ms. Mead said that she did not recall raising her voice to the
plaintiff, at any time. She again denied being angry with the plaintiff, but
later admitted that she was “upset” when the plaintiff told her that she could
not get on the ferry. She also appeared to admit that she raised her voice at
that time. But she denied yelling at the plaintiff until after the plaintiff
told her to get off the lot. (I understood Ms. Mead to be referring to a
statement made by the plaintiff, when Ms. Mead objected to the high price that
she initially quoted.) Ms. Mead said that the plaintiff was “unpleasant from
the beginning.”

[66]        
On further questioning about the conversation, Ms. Mead testified that,
when the plaintiff handed her back the tickets and her change, she thinks she
said something like: “If you can’t handle it, maybe you should look for another
job.” She said that this made the plaintiff angry, and she slammed the window
shut.

[67]        
Counsel asked whether Ms. Mead heard a beeping sound when she got out of
her pickup to talk to the other ferry worker. Ms. Mead said that she did not
remember hearing such a sound, and then reasoned that she must have taken her
key out of the ignition when she went to speak to the man.

[68]        
With respect to the accident itself, Ms. Mead testified that, after
speaking to the other ferry worker, she got back into her pickup truck and
started the engine. She started moving forward, and then heard the side view
mirror being swung in, and said that it shocked her. She then saw that the
plaintiff was there, beside the truck, and she knew that there had been contact
between the plaintiff and her side view mirror. Ms. Mead said: “She bumped it,
I guess.” Ms. Mead said that she stopped her truck very quickly after beginning
to move forward, and denied driving forward ‘suddenly’.”

[69]        
Ms. Mead said that the plaintiff had not mentioned calling a manager,
until after the accident. She said that the plaintiff was very abusive towards
her after the accident, and said she cannot recall how she responded to the
plaintiff. She said, in effect, that she had not seen the plaintiff at all
after she slammed her window shut, until immediately after the side view mirror
had hit her. She said that she believes she fixed her mirror herself, after she
parked in lane 18.

[70]        
Counsel for the plaintiff established that the plaintiff had made a
statement to an ICBC adjuster on October 16, 2007, and had Ms. Mead identify
her statement and read it over. Counsel first had Ms. Mead admit that in her
statement, she said that she herself reached out and pushed her mirror back
into place, immediately after the accident, and before moving into the parking
lot. Ms. Mead acknowledged that she must have done that, but she does not now
recall doing so. She said she believes she checked the mirror again, after she
parked in lane 18. Next, it was shown that in her statement, Ms. Mead said that
the plaintiff told her that she was going to call a supervisor, just before Ms.
Mead handed her the money to pay for the ticket. Ms. Mead said that she does
not now recall the plaintiff making that statement at that point in time, but
only after the accident had occurred.

[71]        
Ms. Mead denied telling the plaintiff that she knew someone who worked
on the ferry who was going to quit, etc. and stated that she does not know
anyone who works on the ferry.

[72]        
Counsel then referred Ms. Mead to the version of the accident she had
given in her statement to the ICBC adjuster. Her account appears at page 2 of
the statement, and reads as follows:

. . . As I started to move forward the booth lady came
storming/running out of the booth yelling at me but I don’t know what she was
yelling. She ran about 8 feet towards my driver’s door waiving her arms and
yelling something. I immediately put on my brakes. She ran at my door and
bashed her left arm on the outside of my mirror, moving the mirror inwards as
it’s a swing mirror. I was almost stopped when she hit the mirror. . . . I was
stopped a split second after she hit the mirror. . . .

[73]        
Ms. Mead said that the version of events contained in her statement to
the ICBC adjuster was wrong. She said she did not see the plaintiff until after
the mirror had been hit and she did not hear the plaintiff yelling until after
the hit.

[74]        
That is a summary of the evidence presented at trial.

The issue of credibility

[75]        
The Court is faced with two versions of the events which are in conflict
in numerous respects. The essential point of conflict is whether the plaintiff
was standing beside the front wheel on the driver’s side of the defendant’s
truck, at the time the defendant put her truck in forward motion. The plaintiff
has testified that she was in that position, and even stated that she had made
eye contact with the defendant and was talking to her and giving directions
about where to go, when the defendant suddenly drove forward.

[76]        
The defendant denies that the plaintiff was in that position and
testified in effect, that she did not see the plaintiff at all, until her side
mirror hit the plaintiff. The defendant implies that the plaintiff suddenly and
carelessly put herself in a position of danger, just as the defendant was
beginning to drive forward and when it was impossible for her to completely
stop before the mirror hit the plaintiff.

[77]        
Obviously, I must assess the credibility of the parties before I can
make the findings of fact necessary to decide the two potential issues in the
case, which are:

a)    Was the accident
caused by the negligence of the defendant?

b)    If so, was the
accident also caused by the negligence of the plaintiff?

The credibility of the plaintiff

[78]        
In my view, there are several features about Ms. Leigh’s evidence that
have the potential to adversely affect her credibility. First, her trial
testimony was to the effect that, although she saw and heard Ms. Mead talking
to the other ferry worker about what lane she should go to, she (Ms. Leigh) did
not come outside her ticket booth until after Ms. Mead had got back into her
pickup truck. But in her incident report, Ms. Leigh clearly stated that she
came out of her ticket booth, and had words with Ms. Mead, before Ms. Mead ever
got back into her truck. Further, according to her incident report, Ms. Leigh
said that when Ms. Mead got back into her truck she said she was going to make
sure that she (Ms. Leigh) lost her job and that she (Ms. Mead) was going to
make a complaint. Ms. Leigh further stated in her incident report that she then
“walked up beside the truck and told her to see a manager turn left after my
booth. I pointed to the area for her to park. She then accelerated hitting my
left shoulder with her mirror.”

[79]        
The clear implication conveyed by the statements made by Ms. Leigh in
her incident report is that both she and Ms. Mead spoke to each other, after
Ms. Mead got back into her pickup truck, but before she drove it forward. If
the statements in the incident report are true, they would compel the inference
that Ms. Mead knew that Ms. Leigh was in a position of danger, when she drove
her truck forward.

[80]        
There is a serious contradiction between the incident report and the
plaintiff’s trial testimony. At trial, the plaintiff testified to the effect
that she only came out of her booth after Ms. Mead got into her pickup truck,
and that she just got to a position beside the truck (and started talking and
signalling to Ms. Mead) before it moved forward and the mirror struck her (and
immediately stopped, after moving two to three feet). No explanation was
offered by the plaintiff for making these inconsistent statements.

[81]        
Secondly, I was not favourably impressed by Ms. Leigh’s apparent attempt
to convey the impression that she went outside her ticket booth, in order to
help the defendant make a complaint about her, to a manager. As I see it, that
motive is so highly improbable on the face of it, that it must be rejected. It
seems obvious to me that Ms. Leigh went outside, in order to prevent Ms. Mead
from driving into the ferry parking lot.

[82]        
Finally, Ms. Leigh testified in substance that she could not recall
saying anything to Ms. Mead to the effect that Ms. Mead would have to pay the
ticket price, or she would not be able to go on the ferry. Ms. Leigh testified that
Ms. Mead was complaining bitterly about the high price of the ticket, and Ms.
Mead agrees that she was objecting to the price being charged. In these
circumstances, it would be entirely logical and proper for Ms. Leigh to tell
Ms. Mead that she could not get on the ferry, unless she paid the price of the
ticket. Yet Ms. Leigh testified that she could not recall whether she told Ms.
Mead anything like this. I would have thought that it would be standard
practice for ticket agents to tell prospective customers who complain about the
price, that they must pay the fare, or they cannot board the ferry. I find it
suspicious that Ms. Leigh professes an inability to remember whether she said
anything similar to Ms. Mead.

[83]        
I was not concerned about the inconsistency in the plaintiff’s testimony
about the method of payment used by Ms. Mead, or her uncertainty about the
point in time when she first tried to call a manager. Nor was I troubled about
the minor inconsistency between the plaintiff’s trial testimony and her
discovery evidence, as to whether Ms. Mead had told the other ferry worker that
the plaintiff had failed to inform her of the lane number, or had refused to
tell her.

[84]        
In my opinion, there is a significant risk that some parts of Ms.
Leigh’s evidence are not reliable. I will take that risk into account, when
making findings of fact.

The credibility of the defendant

[85]        
There are weaknesses in Ms. Mead’s evidence, which tend to diminish her
credibility.

[86]        
In her trial testimony, Ms. Mead has said, in effect, that she did not
see Ms. Leigh at all, before her side mirror hit Ms. Leigh. Her position is
that Ms. Leigh was not beside her truck when she drove forward, and that Ms.
Leigh only moved into that position after she (Ms. Mead) had put her truck in
motion and when it was too late for her to stop before the mirror hit Ms.
Leigh. In effect, Ms. Mead has testified that she did not see Ms. Leigh before
she began to drive forward, because Ms. Leigh was not there to be seen, when
she put her truck in motion.

[87]        
The most serious problem with Ms. Mead’s credibility is that her
statement to ICBC contradicts her trial testimony in several fundamental
respects. I reproduce part of her statement:

. . . As I started to move
forward the booth lady came storming/running out of the booth yelling at me but
I don’t know what she was yelling. She ran about 8 feet towards my driver’s
door waiving her arms and yelling something. I immediately put on my brakes.
She ran at my door and bashed her left arm on the outside of my mirror, moving
the mirror inwards as it is a swing mirror. I was almost stopped when she hit
the mirror. . . .

[88]        
In her statement to ICBC, Ms. Mead is saying that she saw Ms. Leigh
running towards her driver’s door and so she put on her brakes, but was unable
to stop in time to avoid having the mirror hit Ms. Leigh. That is, Ms. Mead
seems to be saying that she watched Ms. Leigh running towards her mirror and
that she tried to avoid a collision but had no time to do so.

[89]        
Ms. Mead rejected her ICBC statement as being false, and insisted that
her trial testimony was the true version. It is possible that Ms. Mead’s ICBC
statement represents an attempt to piece together how Ms. Leigh managed to get
into a position beside her truck, and that the adjuster misinterpreted what she
said and took it to mean that Ms. Mead had watched her move into that position.
That seems unlikely. And even if such a misinterpretation was made, Ms. Mead
should have corrected it. In my view, the serious contradiction between the
statement and Ms. Mead’s trial testimony creates a significant risk that her
version of events is not reliable.

Has the plaintiff proved that the accident was caused
by the negligence of the defendant?

Findings of fact

[90]        
I make the following findings of fact, keeping in mind the decisions I
have made concerning credibility.

[91]        
I do not accept Ms. Leigh’s evidence that she made eye contact with Ms.
Mead, before Ms. Mead drove forward. It is possible that Ms. Leigh thought that
Ms. Mead had seen her, before putting the truck in motion. I accept Ms. Mead’s
evidence, that she did not see Ms. Leigh before the side mirror hit her. Ms.
Mead did not accelerate quickly from her stopped position, was moving ahead
slowly, and stopped within a few feet, after the collision.

[92]        
As to the many other conflicts between the parties, not all of them can
be resolved. I find that Ms. Mead left her truck engine running for at least
part of the time consumed by the incident. I find that both parties became
frustrated and upset as the transaction progressed, with Ms. Mead being more
upset, and raising her voice higher than Ms. Leigh. I find that Ms. Leigh did
tell Ms. Mead what lane she should drive into, but Ms. Mead did not hear her,
likely due to the noise of her engine and her upset state.

[93]        
I am unable to say which of the two women pulled the side mirror of the
truck back into its proper place. I find it probable that each party told the
other that she was going to sue, but I am unable to say which party said it
first. Obviously these conflicts are not on important points.

[94]        
I find that Ms. Mead was in the driver’s seat of her pickup truck, which
was stopped beside the ticket booth, with the engine running. The ticket
purchase transaction had been concluded, Ms. Mead had found out which lane she
was supposed to drive into, and she was intending to drive away from the ticket
booth into the ferry terminal parking lot. At this time, Ms. Leigh was still
inside her ticket booth. Ms. Leigh knew that Ms. Mead was preparing to drive
away from the ticket booth, but after hearing what Ms. Mead had told the other
ferry worker, Ms. Leigh wanted to stop Ms. Mead from driving into the ferry
terminal parking lot. Ms. Leigh wanted Ms. Mead to stop her vehicle just around
the corner from the ticket booth, so that a manager could be summoned. Ms.
Leigh’s purpose was not to enable Ms. Mead to register her complaint, but it
may have been to prevent Ms. Mead from being able to board the ferry.

[95]        
Ms. Leigh came out of her ticket booth, intending to round the corner
and go to Ms. Mead’s driver’s window and confront her. As Ms. Leigh rounded the
corner of the building, Ms. Mead was preparing to move forward. At this time,
Ms. Mead was looking up ahead and to the right, in the direction that she was
intending to travel into the parking lot. Just before Ms. Mead’s pickup began
to move forward, Ms. Leigh reached a position beside the left front wheel of
the truck, and stood there intending to confront Ms. Mead and signal her to
pull over. Ms. Mead did not see her there, and put her truck in forward motion.
Ms. Leigh may have begun to make a signalling motion with her arm, but she did
not speak out to Ms. Mead, before Ms. Mead began driving forward. Ms. Mead
drove her truck forward, slowly. (Ms. Vierstra may have heard the truck
accelerate, but that was likely when Ms. Mead drove forward the second time,
after the accident had occured.)

[96]        
As a result of the coincidence of these events, Ms. Leigh did not have
sufficient time to move out of the way and Ms. Mead did not see her until it
was too late to avoid a collision.

The Law

[97]        
Ms. Mead, as the driver of a motor vehicle, owed a legal duty to take
reasonable care not to injure any pedestrian who was on the highway. The
plaintiff was such a pedestrian.

[98]        
The plaintiff relies on the general principle that, when a potential
hazard is there to be seen, a reasonable driver would see the hazard and take
steps to avoid it. This principle was expressed in these words in Swartz
Bros. Ltd. v. Wills, [1935] S.C.R. 628 (at p. 634):

Where there is nothing to
obstruct the vision and there is a duty to look, it is negligence not to see
what is clearly visible.

Conclusions

[99]        
I have found that the plaintiff had just reached a position beside the
left front wheel of Ms. Mead’s truck, before Ms. Mead put the truck in motion.
Although Ms. Mead had no good reason to expect that the plaintiff would come
out of the ticket booth to confront her at that moment, I conclude that she
ought to have seen Ms. Leigh in that position and should not have driven forward
until she got out of the way. I find that Ms. Mead failed to see Ms. Leigh
because she was looking somewhat to her right, and she was also emotionally
upset by the whole incident, and was not maintaining a proper look out.

[100]     I conclude
that Ms. Mead’s act of driving forward in the circumstances that existed was
negligent, in that it fell below the standard of a reasonable driver. That act
of Ms. Mead was a cause of the accident.

Has the defendant proved that the plaintiff was
contributorily negligent?

Findings of fact

[101]     The sale
transaction had been concluded, and the plaintiff had closed the window of her
ticket booth. She heard Ms. Mead being told by a fellow ferry worker that she
should drive into lane 18, to wait for the ferry. She knew that Ms. Mead went
back and got into her pickup, and had the engine running. I infer that Ms.
Leigh knew that Ms. Mead was about to drive away into the parking lot.

[102]     Ms. Leigh
testified to the effect that the reason why she went out of her ticket booth to
talk to Ms. Mead was to tell her where to go, to register a complaint against
Ms. Leigh. I am unable to accept that explanation. But even if it was true, Ms.
Leigh could easily have conveyed that information to Ms. Mead, by opening up
her ticket booth window and telling her from there.

[103]     I find
that Ms. Leigh wanted to prevent Ms. Mead from driving away, into the ferry
terminal parking lot. I am unable to say what her ultimate motive was, in
wanting to do that. But in the situation I have described, I find that Ms.
Leigh failed to take reasonable care for her own safety, when she left the
safety of the ticket booth, and took up a position close to the front wheel of
Ms. Mead’s truck. She was unable to quickly step aside when the truck started
moving, because she was between the truck and the outside wall of the ticket
booth. She should not have put herself in that position.

Conclusion

[104]     I conclude
that the defendant has established that the negligence of the plaintiff was a
contributing cause of the accident.

What degree of fault should be attributed to each
of the parties?

[105]     The Negligence
Act requires the court to determine the degree to which each of the
defendant and the plaintiff was at fault for the collision which caused the
plaintiff’s injury, and to express the degree to which each party was at fault
as a percentage of the total fault. Liability is then apportioned accordingly.
If the court is unable to establish different degrees of fault, the liability
must be apportioned equally.

[106]     I am
unable to identify any basis for attributing a greater share of the fault to
one party or the other. As a consequence, I assess 50% fault against the
defendant and 50% fault against the plaintiff. Liability is apportioned
accordingly.

Costs

[107]     The
parties did not address costs at the trial.  It would appear that s. 3 of the Negligence
Act provides that the plaintiff should recover 50% of her costs from the
defendant and the defendant should recover 50% of her costs from the plaintiff,
unless the court otherwise orders.

[108]     However,
there is authority which indicates that the Negligence Act does not
entitle a defendant to receive any costs of the proceeding from the plaintiff,
where the defendant did not sustain any damage or loss. See Bedwell v.
McGill 2008 B.C.C.A. 526 at paras. 29-30 and 32.

[109]     The
defendant was successful on the issue of contributory negligence but the
evidence on that issue was intertwined with the evidence on the issue of
whether the defendant was negligent. It seems doubtful that Rule 14-1(15)
should be applied in the defendant’s favour.

[110]     If the
issue of costs cannot be settled, counsel should arrange a date to speak to the
matter, by contacting the trial scheduling manager.

 _____“D.A.
Halfyard”_____

 Mr.
Justice D.A. Halfyard