IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Alsaeedi v. Lally, |
| 2015 BCSC 1526 |
Date: 20150827
Docket: M103989
Registry:
Vancouver
Between:
Hanan Alsaeedi
Plaintiff
And
Satvinder Singh Lally
Defendant
Before:
The Honourable Mr. Justice Jenkins
Reasons for Judgment
Counsel for Plaintiff: | T. Vondette |
Counsel for Defendant: | A. Jones L. Pan |
Place and Date of Trial: | Vancouver, B.C. August 10 – 12, 2015 |
Place and Date of Judgment: | Vancouver, B.C. August 27, 2015 |
[1]
The lone issue before me in this case is whether the defendant was
negligent in driving his Porsche vehicle such that he struck the plaintiff
while she was a pedestrian crossing Thurlow St. in downtown Vancouver. The
plaintiff claims substantial injuries should the defendant be found to be
negligent which injuries will be the topic of a further trial on damages should
the defendant be found liable.
[2]
The incident occurred in October of 2008.
[3]
The testimony of the plaintiff and the defence paint very different
scenes of what happened on the day in question. The defendants position is
that his vehicle never did contact the plaintiff and that the plaintiff fell
while running across Thurlow St. outside the crosswalk. As there is a
disagreement as to whether the defendants vehicle struck the plaintiff, I will
refer to the events that occurred as the incident as opposed to the
accident.
The Plaintiffs Evidence
[4]
The plaintiff testified that on October 8, 2008 she left her apartment
building on Alberni St. heading east on the south side sidewalk, intending to
get to work at the Tommy Hilfiger store on Robson St. for her shift beginning
at 1:00 p.m. She approached Thurlow St. where there were traffic lights
including pedestrian signal lights. Thurlow at that point is a four lane street
with parking lanes on the east and west outside lanes. On the day of the
incident, there was a Sportmart store located on the southwest corner of the
intersection and a Seven-Eleven store on the southeast corner.
[5]
The plaintiff testified that she arrived at the intersection when there
was a red light on Alberni St. and a dont walk sign for pedestrians. The
time of day was between 12:50 p.m. and 12:55 p.m. There were other pedestrians
in addition to the plaintiff waiting to cross Alberni from west to east. The
traffic signals changed to green and walk for pedestrians to cross in the
crosswalk across the south side of the intersection and the plaintiff so proceeded.
She testified that she was a fast walker but was not running to arrive on time
for her shift at Tommy Hilfiger.
[6]
The plaintiff stated there were other pedestrians behind her and one man
ahead of her at the crosswalk. She continued to say that before the incident,
she was approximately sure she was close to the curb, ie the curb on the east
side of Thurlow outside the Seven-Eleven store and she had made it at least ½
way across, close to the curb – I was close to the curb – looking ahead –
concentrating on my way.
[7]
The plaintiff testified she was hit from her left hand side, it pushed
me to my right side and I fell down, I fell in front of the Seven-Eleven, fell
on the street. She continued to say she fell to both knees and both hands
and could not remember if she struck her head. She said she was not running but
was walking in the crosswalk. Later in her testimony the plaintiff stated that
the car all of a sudden was there, it was a shocking moment.
[8]
Later in her direct evidence when shown photographs of the intersection
of Thurlow St. and Alberni St., the plaintiff testified that he was coming
from here, pointing to the westbound lane on Alberni indicating the defendant
had taken a left hand turn onto Thurlow. She again said Im certain I made it
half way across the crosswalk and then, all of a sudden he was there
indicating the vehicle of the defendant.
[9]
The plaintiff continued and stated that she was on the ground a few
seconds, maybe one minute, when she got up she saw the car at the cross
line which I understood to be that the defendants vehicle was at or near the
southernmost line of the crosswalk on the south side of the intersection.
[10]
She then testified that she got up and spoke to the driver, ie. the
defendant, and asked him why he hit her, he said he didnt hit her and she then
told him to fuck off. Continuing, she stated that a woman nearby screamed at
her, and told her to get the license number of the car and driver. She said she
obtained business cards from three people who indicated they were witnesses.
One of those persons was a young man named Mason Bennett.
[11]
In a statement made and signed by the plaintiff on October 14,
2008 she stated:
I was within a few steps of
reaching the other side of the street when I was hit by a car heading west on
Alberni making a left turn to head south on Thurlow St. The impact was to my
left side and it threw me to the pavement beyond the crosswalk. There were
other people crossing behind me and others walking towards me that had already passed
me.
[12]
Later, in cross-examination, the plaintiff stated she had no idea where
he came from and I didnt see him, only after he hit which seem to
contradict her earlier statement that the defendant had been turning left off
of Alberni St.
[13]
Also in cross-examination, the plaintiff stated that the defendants
vehicle struck me in my left leg side, she felt pain in her hip, then she
cannot recall where it hit but she felt pain in her hip.
[14]
The vehicle owned and driven by the defendant and which the plaintiff
alleges struck her in the intersection was a Porsche 911 Carrera S which is,
relative to most vehicles, very low and that the area at the front of the car
which protrudes the most where a bumper would be is 16 to 19 inches from the
ground.
[15]
The plaintiff did not submit in evidence photographs of any bruises or
injuries she may have suffered in the incident.
[16]
As she just wanted to go to work and was concerned regarding being
late for work, the plaintiff soon left the scene. She testified the defendant asked
her to share information on the business cards, he took the cards and wrote
down information from the cards and then gave them back and asked her if she
wanted a ride to the hospital which she declined. She put the cards in her
purse and went to work. Later on the day of the incident the plaintiff said she
took out the business cards and put the same on her kitchen counter at home.
She testified she has never seen the cards since that time.
[17]
The plaintiff also testified that approximately a year after the
incident she posted on Craigs List to inquire regarding any possible witnesses
to the accident but did not received any responses. She did not produce a copy
of the posting on Craigs List. As well, the plaintiff testified that she had
placed posters in the vicinity of the accident seeking witnesses to come
forward, however, that effort was also not successful. The plaintiff did not
produce copies of the notices or photos of the notices in place.
[18]
The plaintiff was the only witness to testify in her case.
Evidence of the Defendant
[19]
The defendant testified that immediately before the incident, he
had travelled westbound on Alberni St. and came to a red light at Thurlow St.
where he was intending to turn left. He waited for a green light and proceeded
and waited to turn as there were pedestrians in the southern most crosswalk. Once
the crosswalk was cleared of pedestrians, he turned into the second lane from
the east on Thurlow St. which was the southbound travelling lane east of the
centre line next to the east side parking lane. During his turn he noticed the
large digital speedometer on his dashboard go from zero to 1, after the turn
he cleared the crosswalk and at about 20 to 30 feet beyond the crosswalk, as
he was stopping, he noticed a lady running towards his car and continued to
testify:
On Thurlow, I was just stopping when I observed a lady
running towards my car. It was like on an angled path . . angled as if her
direction was in a south-easterly direction . .I was moving when I first saw
her, she was still a ways away, I stopped . . . I remember being surprised, she
was looking ahead, I stopped and then she fell down on the street in front of
my car towards the passenger side. . . . I was stopped at that point.
. She fell on I assume her
knees, not any further . . . she fell forward
[20]
The defendant also testified that the plaintiff did not contact his
vehicle before she fell, he did not feel any contact before she fell but after
she fell:
. . . . on her knees I heard the
sound of her hand hit my bumper – I had shut the car off. I knew it was the
bumper because the hood is aluminum, the engine is in the back and the front of
the car is hollow, if you put a hand [on that area] the sound is plastic
The defendant added that when he heard the sound of the
plaintiffs hand on the front of his vehicle he was in the process of getting
out of the car.
[21]
A conversation followed between them, the defendant testified he offered
to call for an ambulance, she said you hit me which he denied and soon the
discussion degenerated on the as the plaintiff was swearing at the defendant.
The defendant offered his identification materials, saw the plaintiff gather
some business cards from apparent witnesses which she eventually, according to
the defendant, put in her bra. He did get a business card from Mason Bennett
and later reported the incident to ICBC.
[22]
Later, in cross-examination, the defendant testified that prior to the
incident, traffic was building southbound on Thurlow back from Robson, close to
the lane and as a result there was no reason to speed up on Thurlow before the
incident. He was cross-examined at length challenging why he would be driving
only at 1 km/h, the inference being that he must have been travelling more
quickly, however, the defendant maintained his evidence regarding his speed in
that he had been watching the large digital speedometer on his dashboard. Although
the defendant could have been travelling briefly at a pace greater than 1 km/h,
if so, it was only for a very brief period of time and even plaintiffs counsel
acknowledged the defendant would not have been travelling near 10 km/h and so
his speed was definitely very slow.
Evidence of Tony Cringle
[23]
Mr. Cringle was one of two independent witnesses called by the defence.
Mr. Cringle had many years of experience as an independent adjuster for
various insurers, law firms and others. Mr. Cringle testified to having
interviewed two potential witnesses to this case and recalled that one of the
potential witnesses had been Mason Bennett, who did testify at trial.
[24]
Mr. Cringle testified that he had been hired in October of 2008 by a law
firm which needed witnesses interviewed regarding an accident that had occurred
at the intersection of Thurlow St. and Alberni St. in Vancouver.
[25]
Mr. Cringle explained that one interview had been conducted in his
vehicle parked near the sight of the incident and another was conducted in a
Starbucks coffee shop, the latter interview being that of Mason Bennett.
[26]
The files maintained by Mr. Cringle had been destroyed after three years
as was policy of his employer at the time and so were not available for trial.
He also testified that he had delivered statements of the interviews of the two
witnesses to the law firm that had hired him.
[27]
Mr. Cringle was not able to identify who the second person was that he
had interviewed in connection with an alleged accident at the corner of Alberni
St. and Thurlow St.
Evidence of Mason Bennett
[28]
Mr. Bennett was an independent witness called for the defence who was
standing at the south east corner of Thurlow St. and Alberni St. at the time of
the incident. He was accompanied by his then girlfriend and was facing north,
on his way back to his office. Mr. Bennett was not facing the location of the
incident and did not see what had happened as between the plaintiff and the
defendants vehicle on Thurlow St.
[29]
On October 9, 2008 Mr. Bennett gave a telephone statement to ICBC, a
copy of which was transcribed and filed as Exhibit 4 at trial. The statement
read as follows, keeping in mind that Mr. Bennett did not see what had
occurred, but assumed the plaintiff had been struck by the defendants vehicle:
I didnt see it happen. I was on the south east side of the
block. I was walking down Thurlow. The car was turning left. He was turning
from Alberni onto Thurlow. I saw his car before he turned. He was starting to
turn when people were walking, when there was a break in the pedestrians, he
started to turn. It was out of my sightline when he hit her. Where she was
afterwards, she was quite a bit in front of the pedestrian lines. He wouldnt
have been going fast at the same time, I didnt see it happen, I saw the before
and after. I would guess that she was 10-15 feet from the walkway lines
after the accident. I would guess that she was cutting across the street to cut
north. The light was definitely red when she was running across. I didnt
see the driver being reckless. I have no idea who the driver or pedestrian is.
. . . . . .
(emphasis added)
[30]
Mr. Bennett testified at trial that the crosswalk was clear when the
defendant made his turn and passed through the crosswalk. He also testified
that the defendant was travelling slowly as he made his turn and although he
did not see any impact, he did see the plaintiff jump up quickly after the
incident.
[31]
Mr. Bennett was a very credible witness. The most significant evidence
of Mr. Bennett was that the plaintiff was 10-15 feet from the crosswalk
or, as per his statement, quite a bit in front of the pedestrian lines after
the incident and that the plaintiff had been running when the light was red,
which would have been the lights to not proceed on Alberni St.
Relevant Legislation / Law
[32]
The relevant portions of the Motor Vehicle Act, R.S.B.C. 1996, c.
318, are as follows:
179(2) A pedestrian must not leave a curb or other place of
safety and walk or run into the path of a vehicle that is so close it is
impracticable for the driver to yield the right of way.
180 When a pedestrian is
crossing a highway at a point not in a crosswalk, the pedestrian must yield the
right of way to a vehicle.
[33]
City of Vancouver By-law No. 2849, a By-Law to Regulate Traffic and the
Use of Streets in the City of Vancouver states in para. 12:
12 Crossing at Other than Crosswalks
(1) Every pedestrian
crossing a roadway at any point other than within a marked crosswalk or within
an unmarked crosswalk at an intersection, shall give the right-of-way to all
vehicles upon the roadway.
92) No pedestrian shall jaywalk on a roadway.
[34]
In Hmaied (Litigation Guardian of) v. Wilkinson, 2010 BCSC 1074,
Madam Justice Dickson, commencing at para. 21 summarized significant factors including
the legislation referred to above for consideration in motor vehicle liability
cases involving vehicles and pedestrians:
21. These provisions do not amount to an exclusive code
relating to the rights of way between pedestrians and vehicle. Rather, they
supplement the common law duty of all highway users to exercise what
constitutes, in all of the circumstances, due care . . . . . .
22. When an accident occurs on a highway, the starting
point for analysis is a determination of who had the right of way. Generally
speaking, the party with the right of way is entitled to assume that other
highway users will obey the rules of the road: Enright v. Marwick, 2004
BCCA 259 (B.C.C.A.) at para. 22. In particular, drivers are ordinarily entitled
to expect that adult pedestrians will not jump out directly in front of them as
they are proceeding lawfully along their way: Enright, supra at para.
35; Ibaraki v. Bamford, [1996] B.C.J. No. 724 (B.C.S.C.) at para. 12-13.
23. Regardless of who has
the right of way, however, there is a duty upon drivers and pedestrians alike
to keep a proper lookout and take reasonable precautions in response to
apparent potential hazards: Nelson (Guardian ad litem of) v. Shinske (1991),
62 B.C.L.R. . . . . . . . If it is reasonably foreseeable or apparent that a
pedestrian will disregard the law and thus create a hazardous situation, a
driver is obliged to take all reasonable steps to avoid a collision. In such circumstances,
if the driver has a sufficient opportunity to avoid the collision, but does not
take appropriate evasive action, the driver will be found negligent: Karran,
supra; Beauchamp v. Shand, 2004 BCSC 272 (B.C.S.C.).
[35]
In Burke v. Leung, [1996] B.C.J. No. 938, the court found the
defendant driver not negligent after he had struck the plaintiff who had run
quickly into the street without regard to the traffic on the street while the
driver was proceeding through the intersection at a safe rate of speed of
approximately 15 to 30 kilometres per hour.
[36]
Similarly, in Clifford v. Slater, 2007 BCSC 177, Mr. Justice
Vickers dismissed an action where the plaintiff had stepped onto the road from
behind a large telephone pole and into the path of the defendants vehicle
before the defendant was able to avoid striking the plaintiff. The plaintiff
had not looked in the direction from which the defendant was driving. At para.
23, Justice Vickers stated:
23. In this case, there is
no crosswalk. The defendant driver was aware he had just passed a crosswalk
which would have provided a safe crossing for the plaintiff. If the plaintiff
was paying proper attention, she would have been aware of that crosswalk. In
the circumstances, the plaintiff had the duty to yield the right of way. Rather
than do so, she stepped out onto Dewdney at a point in time when the
defendants vehicle was too close to stop.
Analysis of Facts
[37]
The factual descriptions of the incident by each of the parties are
completely at odds. The plaintiff testifies that she was struck and knocked
down by the plaintiffs vehicle while she was walking in the crosswalk on the
south side of the intersection. The defendant denies that his vehicle ever
struck the defendant and that he did not encounter her until he was through the
intersection, had passed over the crosswalk and had travelled another 20 to 30
feet before the plaintiff tripped and fell in front of her.
[38]
In such cases, the task before the court is to not only assess the
credibility of the witnesses, but to look for evidence other than the testimony
of the parties which supports versions of the facts which have been put before
the court and the trail of logic supported by the facts.
[39]
In this case, the independent evidence was that of Mason Bennett, who
had left a business card with each of the parties following the incident. Mr.
Bennett was standing at or near the curb on the south-east corner of the
intersection facing north, planning to continue on his way back to his office
once the traffic light on for Thurlow St. pedestrian traffic permitted him
to walk. He was facing the defendants vehicle as the defendant entered the
intersection and saw it start to turn to left onto Thurlow St. when there was
a break in the pedestrians who would have been crossing Thurlow St.. He
testified the defendants vehicle was travelling slowly.
[40]
Although Mr. Bennett did not see what had occurred after the defendants
vehicle passed over the crosswalk, he testified that when he saw the plaintiff
get up she was 10-15 feet from the crosswalk and at the front of the
defendants vehicle. In his statement, although he did not estimate the
distance between the plaintiff and the crosswalk, he stated she was quite a
bit in front of the pedestrian lines. If the plaintiff had been struck in the
crosswalk, especially if she was close to the curb or a few steps from the
curb as she testified, it would have been very likely that Mr. Bennett
would have seen the impact as he would have been standing a matter of a few
feet away, waiting at the curb for the light to change.
[41]
Based upon all of the evidence, I find that immediately prior to the
incident, the plaintiff was at least 10 feet south of the southern-most
crosswalk line, most likely further than 10 feet. She was not in the crosswalk
at the time of the incident.
[42]
The only way that the plaintiff could have ended up on her knees south
of the crosswalk would have been if she had been impacted by the defendants
vehicle and thrown a distance of several feet by the impact, however, the
plaintiff testified he pushed me, not that she was impacted, landing on the
road. I also find, based upon the statement made by Mr. Bennett that the
pedestrian signal for pedestrians crossing Thurlow St. would have been dont
walk by the time the plaintiff commenced to jaywalk on Thurlow St.
[43]
Not being in the crosswalk, the defendant had the right-of-way, but
still had a responsibility to keep a proper lookout and take reasonable
precautions to avoid the unexpected, such as a pedestrian attempting to cross a
street outside of a crosswalk. In a busy downtown street over the luncheon
period, the streets and sidewalks are very crowded and it is not uncommon that
pedestrians will, unlawfully, attempt to jaywalk at their risk.
[44]
In this case, the defendant took abundant measures to avoid the
unexpected. He firstly waited until the crosswalk had cleared of pedestrians
and proceeded very slowly through the crosswalk and beyond. As between the
parties, the defendant had the right of way as a result of the plaintiff
attempting to cross Thurlow St. outside of the crosswalk. Upon realizing the
plaintiff was running in a south easterly direction towards the front of the
defendants vehicle, the defendant stopped.
[45]
I also find on the whole of the evidence that there was no impact
between the plaintiff and the defendants vehicle and accept the evidence of
the defendant that the plaintiff fell in front of the defendants vehicle.
[46]
I also add that the defence has raised the issue of spoliation, ie. that
the defendant had either destroyed, lost or concealed evidence directly related
to the claim she has made against the defendant. This issue deals with the
plaintiffs evidence that she obtained business cards from three potential
witnesses at the scene of the incident of October 8, 2008, none of whom were
called as witnesses for the plaintiff.
[47]
Previously in these reasons, I referred to Mr. Cringle as having
conducted two interviews of persons that had been identified by a plaintiffs
lawyer dealing with an accident or incident at the same location and that Mr.
Cringle had provided statements of the evidence of those persons, one of whom
was Mr. Bennett who testified for the defence. The other person remains
unidentified.
[48]
The issue of spoliation raised by the defence was discussed in the
Supreme Court of Canada in St. Louis v. The Queen 1896, 25 SCR 649 and
stands for the proposition that spoliation raises a rebuttable evidentiary
presumption that misplaced or destroyed evidence would have been unfavourable
evidence to the spoliators case, ie. in this case, the plaintiff. The defence
also referred the court to decisions of British Columbia courts on the issue of
spoliation which have accepted the principle of a rebuttable presumption but
conflict as to whether the presumption is triggered automatically if evidence
is lost or destroyed or whether the other party must establish additional
elements or evidence supporting the loss or destruction of the evidence.
[49]
In this case, it is uncontroverted that the defendant did obtain a
business card at the scene of the accident from Mr. Bennett, that Mr. Bennett
was interviewed in connection with this incident by Mr. Cringle, who believed
he had been retained by plaintiffs counsel regarding an accident at the
intersection in question in this case. Mr. Bennett was served with a subpoena
by the defence and his evidence relating to the incident has been accepted by
me and was contrary to the interests of the plaintiff. As a result, it is not
necessary for me to analyze the facts and law relating to spoliation since one
of the witnesses whose evidence the plaintiff may have attempted to exclude has
in fact testified.
[50]
This action is dismissed with costs to the defendant on Scale B.
Jenkins
J.