Philip Anderson - v. -, 2015 SKPC 010

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: January 19, 2015 Citation: 2015 SKPC 010 File: File # 456/14 Location: Regina, Saskatchewan Between: Philip Anderson - and - Kulwinder Malhi Philip Anderson For the Plaintiff Kulwinder Malhi For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] Philip Anderson seeks damages in this negligence action arising out of a motor vehicle accident which occurred at a Shell gas station located at 2020 Victoria avenue in the city of Regina at about 8 p.m. on December 13, 2013. [ 2 ] The accident occurred when Mr. Anderson backed up his half ton truck into an open car door. Mr. Anderson originally brought this

action some 11 months after the accident and sued the owner of the car that he had hit. When it became apparent to him that the proper party to sue was the passenger who had opened the door, he abandoned the claim against the car owner and sued the passenger, Kulwinder Malhi. [ 3 ] Mr Malhi has defended the action and takes the position that the damages sustained to Mr. Anderson ’ s vehicle are solely attributable to the negligent actions of Mr. Anderson. [ 4 ] Damages are not really in dispute. The amount claimed is in the nominal amount of $76.05.

For the reasons which follow, I find that the actual damages incurred by the plaintiff are even less and equate to the very nominal sum of $36.77. Evidence [ 5 ] Mr. Anderson is employed as an auto adjuster with Saskatchewan Government Insurance. On December 13, 2013 he was working an evening shift at the SGI East Claims Centre and concluded work at about 8 p.m. He says that after leaving the building he went to his half ton truck which had been parked outside and warmed it up for approximately 5 minutes.

He describes the weather as cold, about minus 15 degrees Celsius, with some ice crystals in the air but no snow. It was obviously dark out at that time of day. Visibility was good. [ 6 ] Mr. Anderson says that he proceeded west on a service road that runs parallel with Victoria Avenue. His intent was to fill up with gas at the Shell service station located about two blocks west of the claims centre. [ 7 ] The service station is a long building which runs north and south on the gas station property. It is comprised of two pumping islands and the store/pay kiosk.

There is a pumping island at the most southerly portion of the building (island 1). To the north of that island is a lane for traffic to access the pumps (lane1). There is another lane (lane 2) beside lane 1 and then, and again to the north, is the second pumping island. [ 8 ] Mr. Anderson entered the service station grounds from the south east and pulled into lane 1 facing west. He brought his vehicle slightly forward of the pumping island and stopped and got out of his vehicle. At that time he noticed that there was a white car parked in lane 2 adjacent to island 2 but facing east. Mr.

Anderson ’ s truck was situated such that it was about 6 to 10 feet forward of the white car. The vehicles were, therefore, parallel to each other but partly offset. [ 9 ] Photographic evidence tendered at trial shows that there was just enough room between the two vehicles that a slender man (and the defendant is a slender man) could walk between the two vehicles without brushing against the side of either vehicle. I would estimate this distance at between two and three feet, but closer to two than three. [ 10 ] After exiting his truck, Mr. Anderson realized that he had pulled up to the wrong pump.

It was the diesel pump and he required gasoline. He got back into his truck with the intention of backing up two or three feet so that he could fill his tank at the correct pump. [ 11 ] Mr. Anderson says that he checked both of his rear view mirrors and, seeing nothing that would impede his backward progress started to back up. Almost immediately he felt a crunching sound and stopped his vehicle. [ 12 ] When he got out he concluded that the defendant had, moments before the collision, opened the front passenger door of the white car in an effort to get into the vehicle.

Clearly, as the truck was backing up, it hit the edge of the now open front passenger side door, and, in the result, the lens of the passenger ’ s side back tail light of the plaintiff ’ s truck was cracked. [ 13 ] Mr. Anderson alleges that the passenger ’ s decision to gain access to the white vehicle at this critical juncture was negligent, and that the damage to his vehicle is wholly attributable to that negligent conduct.

[ 14 ] Mr. Malhi tells a different story, or rather, he confirms his actions which are depicted on the service station video which captured the accident. [ 15 ] He says that he had exited the white car before the truck arrived and was in the process of taking garbage from the car to the waste can on or near island 2. The truck had pulled up and came to a stop. Mr.

Malhi walked back from island 2, behind the white car and proceeded to walk between the two vehicles, heading to the front passenger ’ s side door. [ 16 ] Without pause he opened the door and slid into the passenger ’ s seat and almost simultaneously the truck backed up into the still open door. [ 17 ] Mr. Malhi says that he was wearing a hoodie at the time of the incident. His head was covered and he did not see the truck start to back up since most of the truck would have been behind him at the pertinent time. He was not warned in any way that Mr.

Anderson was attempting to back up immediately prior to the accident. Absent some warning or notice of Mr. Anderson ’ s intentions, he argues that it is not negligent to open a door and get back into one ’ s vehicle. He simply did not expect that the vehicle beside him would drive backward when it did. [ 18 ] The video was presented into evidence by the plaintiff. It was prepared by the Shell station which records activity at its pumping islands. It does not run at normal speed, but rather, somewhat slower. It lasts for about five seconds. It shows Mr.

Anderson getting into the front door of his truck at about the same time that Mr. Malhi is walking from the back of the white vehicle. It shows Mr. Malhi walking between the vehicles and just about to open the front door as Mr. Anderson starts to back up. The door opens, and he is getting in as the collision occurs. [ 19 ] Because the speed of the video is slower than normal time, these sequence of events clearly happened faster than what is depicted on tape. There is no evidence as to how much slower the video is than normal time, but I think that I can take judicial notice of a couple of matters.

I take judicial notice of the fact that reasonably fit people walk at about 5 kilometres an hour, and there is nothing in the cadence of Mr. Malhi ’ s walk to suggest that he is hurrying or lagging while walking. He appears to take a couple of steps to get past the back of the white car and another three or four steps before opening the door. There is no discernible lag time between getting to the door and opening it. It looks like a fluid motion. [ 20 ] It looks like Mr. Malhi ’ s stride is about a metre long. At five kilometres an hour a person moves about 1.4 metres per second.

I conclude that from the time Mr. Anderson gets into his truck until the collision occurs, about 3 seconds has transpired. From the time Mr. Anderson starts to back up until the time of the collision, about 1 second transpires. In my view, this analysis neatly squares with Mr. Anderson ’ s evidence that the accident occurred within the space of a second or two. [ 21 ] Mr. Anderson says he did nothing wrong. He says that he checked both mirrors before backing up. He says that when he checked his passenger ’ s side mirror and window Mr. Malhi was not there. But the video clearly shows that Mr.

Malhi is directly across from Mr. Anderson when Anderson gets into his truck. It would be difficult if not impossible not to see Mr. Malhi move along the back of the white car. It would be difficult, if not impossible not to see him walk between the narrow confines of the space between the vehicles if one was looking in his passenger side mirror. Analysis [ 22 ] Mr. Anderson says that he understands the law, and he says that no one should be allowed to open one ’ s door and effectively impede his decision to back up his vehicle.

Generally speaking, it is true that any person entering or exiting a vehicle should not open his door when he knows or ought to know that in so doing he will strike another vehicle on the highway. But the key element is whether or not the person is or should be reasonably aware of the vehicle approaching. [ 23 ] While not articulated by the defendant, it is clear that he is relying on certain rules of the road which guide drivers, and specifically, s. 222 of The Traffic Safety Act 2004 c. T-18.1 as amended, which speaks to the rules of the road relating to vehicles backing up:

222 No person shall cause a vehicle to move backward on or onto a highway unless the movement can be made in safety. [ 24 ] I recognize that the accident happened at a location other than a highway, but I refer to that

section not for the purposes of imposing some penalty for its breach, but rather, because, as our Court of Queen ’ s Bench has stated in the past, the rules of the road can readily be considered in identifying those rules which might define a standard of care of a reasonably careful and prudent driver. To that extent, I consider it a good rule in ascertaining the requisite standard of care for Mr. Anderson in the instant circumstances. [ 25 ] In the instant circumstances, Mr.

Anderson over shot his intended pump and felt inclined to reverse his vehicle at night in the immediate vicinity of another vehicle which was within two to three feet of him. He gave no warning of his intended course of action to other people in his immediate vicinity. He says that he did not see Mr. Malhi alongside his car, notwithstanding that the evidence clearly shows him to be there at the relevant time.

Therefore, he either failed to check before backing up, or his attempt to check for persons beside or behind him were, at best, fleeting and insufficient. [ 26 ] A reasonably prudent driver should have seen Mr. Malhi. A reasonably prudent driver should have then asked himself what Mr. Malhi, as a pedestrian walking between two cars, intended to do. In my view, a reasonably prudent driver would have concluded, among other things, that he may be trying to access the vehicle that he is walking towards, and that in so doing he might open the door to that vehicle.

A reasonably prudent driver would then, in my view, recognize that he should not move his vehicle backward until that movement can be made safety. A reasonably prudent driver would, in my view, recognize that to do otherwise invites a very real risk that the failure to take a prudent and safe course of action may cause damage or even injury to others in one ’ s immediate vicinity. At the very least, a reasonably prudent driver would alert those in his immediate vicinity of his intention to move his vehicle backward. [ 27 ] The court asks itself what if, instead of getting into the white car, Mr.

Malhi had intended to walk directly behind Mr. Anderson and was struck by the vehicle? Would it be open to Mr. Anderson to suggest that Mr. Malhi should have anticipated that the truck might suddenly and without notice back up and hit him? I think not. [ 28 ] I cannot attribute any fault to Mr. Malhi. It was winter and he was wearing headgear. His hoodie would necessarily impact his ability to see to either side or to hear clearly. He was walking in the opposite direction of the truck. His back was towards the truck. He was not at any time made aware of Mr. Anderson ’ s intentions to back up.

The worst that can be said of Mr. Malhi is that, arguably, in the short period of time that transpired he could have caught the indistinct glow of the truck ’ s rear lights in the fraction of a second before it started to back up. Arguably the same indistinct glow would occur if the plaintiff depressed his brake and started to move forward. I do not consider this failure to be significant. I certainly do not see this failure to be negligent, particularly in light of the tight time lines which were involved, a matter of a second or so. [ 29 ] In my view, in this set of circumstances, I cannot say that Mr.

Malhi failed to exercise the standard of care required of a reasonable person to access a vehicle at a gas station. With the greatest of respect to Mr. Anderson ’ s understanding of the law, most reasonable people in Mr. Malhi ’ s situation would not expect the vehicle beside him to back up suddenly and without notice to a man who is within a couple of feet of that vehicle. [ 30 ] For these reasons, I find that Mr. Anderson ’ s conduct at the time of the accident to be negligent and the sole cause of the accident and of Mr.

Anderson ’ s extraordinarily minor damages. [ 31 ] If I am wrong, then in any event I would only assess Mr. Anderson ’ s damages in the sum of $36.77. While SGI assessed the cost of repair to Mr. Anderson ’ s vehicle at $76.05, he indicated that he fixed his truck himself. He purchased a tail light lens to replace the damaged one for $22.00. He said he put it on himself and that it took him a half hour to do it. His hourly rate of pay is $29.54 per hour. I would have allowed him the equivalent of one half hour of lost pay to reflect the effort he put in himself to mitigate his loss. This would amount to $14.77.

Therefore the total loss is $36.77. Costs [ 32 ] Mr. Anderson originally sued the owner of the white car, Mr. Randhawa Singh. Then, he failed to serve that owner with the claim and summons with ten clear days notice to him as is required by the law. Notwithstanding, the owner attended the trial date with only two days of notice to him. He felt he was under compulsion of law to do so. He had to travel from Saskatoon to do so. He obtained an adjournment in order to allow him to prepare for trial. Then, Mr. Anderson recognized that he had sued the wrong party and amended the

claim to delete the owner and insert Mr. Malhi as the correct defendant. The owner is out of pocket his travel expenses and he has sent a note to the court inquiring of his right to seek these out of pocket expenses. [ 33 ] For his part, Mr. Malhi advises that he also had to travel from Saskatoon and also seeks his travel costs. He also seeks an amount to offset his loss of a day ’ s labour as a painter and he says that he is paid $27.00 per hour. [ 34 ] I have no difficulty in awarding costs to Mr. Malhi for his out of pocket expenses incurred in travelling to Regina as he has been entirely successful in this action.

Section 31 of The Small Claims Act allows this Court to grant costs as the judge considers appropriate. Although those costs have been circumscribed by a recent decision of the Court of Queen ’ s Bench, I do not think that decision impacts the discretion of this Court to award monies for actual out of pocket expenses incurred by a party litigant who has been wholly successful. [ 35 ] I do not however, think that the law contemplates that a successful litigant be allowed to claim for income lost in having to attend court.

While this is a hardship for successful litigants, my research suggest that the bulk of legal authority is not prepared to make such an award. Mr. Malhi is, however, awarded the sum of $225.12 reflecting round trip travel from Saskatoon and back, a distance totalling 536 kilometres at a rate of $0.4134 per kilometre as set by the Public Service Commission of Saskatchewan. [ 36 ] I direct that these costs be paid to Mr. Malhi immediately. [ 37 ] If Mr.

Singh is insistent that he be entitled to his costs thrown away, he may apply to this Court by letter on or before February 20, 2015 to obtain a date to argue his entitlement to his out of pocket expenses. His situation is decidedly different then Mr. Malhi, and there is no set procedure under The Small Claims Act to determine his entitlement as he is no longer a defendant in this action. I am, however, hopeful that Mr.

Singh may wish to simply put this matter aside and obtain closure in these proceedings. [ 38 ] Each of the party litigants are hereby directed to provide SGI with a copy of this decision so that it may, if necessary, amend its records to reflect the decision of this court. P. Demong, J