Brown v. Granger Date:, 2012 BCPC 521

Citation: Brown v. Granger Date: 20121228 2012 BCPC 0521 File No: C12846 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JESSICA BROWN CLAIMANT AND: ANITA GRANGER DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE POTHECARY Appearing on their own behalf: The Claimant, Jessica Brown Counsel for the Defendant: S. Amendolagine Place of Hearing: Port Coquitlam , B.C. Date of Hearing: December 28, 2012 Date of Judgment: December 28, 2012

[ 1 ] THE COURT: Parking lots are notoriously scary places to be driving cars. I am told that some driver education courses include as a positive lesson that any chance you get to pull into a parking space in a parking lot where you can pull through, you should take that opportunity. Anything else is just adding an enormous amount of jeopardy to your driving because of the challenges of backing out of spaces and traffic moving through. I suspect that any driver has reason to think of that on an almost weekly basis if they are regular attendees in parking lots.

The number of horns honking and brakes squealing and sometimes crashes that one hears in parking lots is quite remarkable. Or maybe it is just the sound of the alarm going off after a parked car has been struck and the other driver drives away.

So it seems clear that parking lots inherently bring some danger to them. [ 2 ] We had some discussion about speed limits in parking lots and if there are any, they may be specifically posted in a few, but it is very unusual to see a speed limit. [ 3 ] In terms of the speed one should be driving in a parking lot, it seems to fall within what is reasonable in the circumstances.

If it is a parking lot that is congested or with lots of traffic or, in fact, any parking lot if there is any other car in it, prudent drivers proceed cautiously or they take risks. [ 4 ] In the same way, if one is the driver that is backing up to get out of a parking spot, prudent drivers take their time. They do their best to make sure that they can see what is around them and act accordingly. [ 5 ] I suppose there is a lot of room for application of the Golden Rule in parking lots as well. Do unto others as you would have them do unto you.

So if you see cars backing up and you are the driver in the driving lane, you give them room and you give them space and you look out for them. And if you are the backing up driver, you be very cautious. [ 6 ] What surprised me in reviewing the cases, which I did at lunch time, as well as the cases provided by counsel for the defendant, was how few actually make it into written decisions. [ 7 ] The primary reason, I expect, is because of the provisions of the Motor Vehicle Act .

But there are a number of provisions in the Motor Vehicle Act ; there are specific ones and there are general ones in terms of duties that drivers owe to each other. [ 8 ] The facts here are that around 5:30 in the afternoon of April 5th, 2011, the car driven by the claimant was parked nose in, in a long row of parking spaces at the side of a credit union here in Coquitlam. The parking spaces on either side of where the claimant had parked were empty. She was only gone from her car for five minutes or less to use an ATM at the credit union and then returned to her car intending to drive home after work.

It was daylight; there were no obstructions to vision; the weather provided no impediment; it was dry. [ 9 ] The evidence of the claimant is that she prepared to back up. She checked her rear-view mirror, her two side mirrors, driver and passenger side, and she shoulder checked in both directions before beginning backing up. Her car has an automatic transmission. She said she put it into reverse and the car then moved back at its own speed, without her accelerating.

It was level there, and that it wasn’t going very fast, perhaps five kilometres an hour, walking speed or slightly more. [ 10 ] She had begun her turn to turn the rear of the car westward, so that she could then pull forward and drive out of this area eastbound. [ 11 ] The driveway area in this place had narrowed by this point. She was four or five car parking spaces from the furthest west end of this parking area.

At the end of that parking area, according to the aerial pictures that were filed as exhibits, the road then narrows to become a one-way road to drive around the side of the credit union to allow for a drive-thru ATM. [ 12 ] But the cars from those parking spaces were not obligated to follow the one-way arrow around. They could head out eastbound.

They did not have to go westbound, and that is what the claimant was doing. [ 13 ] As she was backing out and had just started to make the turn to be able to accommodate her full exit, a car driven by the defendant was proceeding westbound behind her and struck the right, rear side panel of her car, denting it from about the rear of the rear passenger side wheel well back and, essentially, wedging off the bumper. [ 14 ] The claimant has testified that the force of the impact was such that her car, which had begun its turn, then was pushed to complete the turn, so that it came to a stopped position facing eastbound. [ 15 ] The vehicle driven by the defendant continued to drive after first striking the car and, in fact, drove such that her car was dented and scraped all the way down the passenger's side.

The initial scrapes and marks start at about the mid-point of the front of the car and then out to the passenger's side of the passenger's side headlight and then all the way down the passenger's side of the car from the photographs I have been shown. [ 16 ] The defendant did not stop and continued driving, going around through the ATM driveway and then around the building, doing a circle of the building, and coming back and parking in the free space that was beside the claimant's vehicle. [ 17 ] I have heard various descriptions of the conversations that took place between the claimant and the defendant at that time.

I should add that the claimant, who was a young woman, was upset and concerned that she would not be able to drive her car because of the condition of the bumper. She telephoned her parents, who live nearby, and within 10 or 15 minutes, they also attended and also spoke with the defendant. [ 18 ] The evidence of the claimant was that she obtained the identifying information from the defendant, but the defendant was not particularly interested in getting hers, although she did give her her name.

When the claimant asked the defendant for her driver's licence and insurance documents, she testified that the defendant, at that point, said that for this matter she would prefer to pay privately and that

she would pay for the damages to her own car, being the defendant. [ 19 ] The claimant also testified that the defendant said she was sorry and that she did not want to lose her safe driver's discount and she did not want to deal with I.C.B.C.

They did not discuss how the accident had happened, although, the claimant did testify that the defendant said that the claimant had backed into her. [ 20 ] They each looked at the damage to the vehicles and when the parents attended, they all spoke together and to some degree apart at that point. [ 21 ] The claimant's dad made a temporary repair to the vehicle so that she could drive the car and she then took it home. [ 22 ] The claimant testified that in a series of telephone calls with the defendant that the defendant repeatedly offered to pay for the vehicle.

However when she was told that the damages were $1,200.00, she indicated that that was more than she could pay and that they agreed on an amount of $600.00. [ 23 ] Two days later, according to the claimant, the defendant said she had had her car estimated and it was over $5,000.00, so she would be making a claim with I.C.B.C. [ 24 ] At that point, the claimant was aware from her own conversations with I.C.B.C. that because she was a vehicle reversing, that they would find that she was at fault for the accident and, ultimately, that is, indeed, what they did. [ 25 ] She went through review processes, plus a further claims review and, ultimately, I.C.B.C. left the liability at 75/25 against the claimant. [ 26 ] The impact of that finding has been significant with respect to future insurance charges to the point that the claimant has not renewed her insurance on her vehicle. [ 27 ] The claimant testified that she first saw the defendant's vehicle when it hit her vehicle.

She had not seen it before, notwithstanding having looked up the aisle and all around her to see if there was any other traffic. [ 28 ] As a result of the checks that the claimant had made, she surmised that the defendant may have not driven along the full row of parked vehicles, which are some 24 or so vehicles, or 25 vehicles, but had perhaps arrived by turning left after coming up along the front of the credit union, which is a much shorter distance.

But she did not see the vehicle in that position and could not say with any certainty, other than simply by surmising that perhaps that is where the vehicle was coming from. [ 29 ] The claimant also believed the vehicle was going quickly, particularly for the circumstances there, in particular because of the impact the collision had on moving her vehicle, the damage it caused to her vehicle and then her observations of the speed of the vehicle as it left the scene to drive around through the ATM drive-thru driveway. [ 30 ] The claimant restated in cross-examination that she had been pursuing this matter to this degree because, given that the defendant had admitted fault to her for the accident, she believed that a finding of negligence against the defendant should be made, not against her. [ 31 ] Her mother and father both testified.

They testified to receiving the call when they were at their house and then, together, going down to see their daughter.

They both spoke with the defendant and testified to the conversations about the defendant paying for the damages privately and not wanting to go through I.C.B.C. [ 32 ] They also both testified to the defendant stating that she did not want to lose her good driver's discount and then also spoke of a personal family matter that was upsetting for the defendant. [ 33 ] Throughout the conversations, the defendant also commented that she had not seen the claimant's vehicle before the accident. [ 34 ] The defendant testified that she had been at work that day and was driving home and stopping to do some business at the ATM.

She testified that she proceeded northbound on Glen Drive and then eastbound on Johnson, in order to enter into the parking lot through the Johnson Street entrance. That would have her entering at the end of these 25 spaces for parking that front onto Glen Drive. [ 35 ] She testified that on entering into the parking lot, she was deciding whether to park and walk to the one ATM or use the drive- thru, but decided to use the drive-thru ATM. She then proceeded to drive to the ATM, which would be westbound along this driving alley. [ 36 ] She said, "All of a sudden, I hit something.

I was shocked," and that she was not expecting this. [ 37 ] She continued driving through the ATM driveway and then went back and parked beside Ms. Brown's car. [ 38 ] She testified that she hit Ms. Brown’s car and that it happened really quickly.

She said she felt something hit her on the side and was aware after striking the car that the car was not all the way into the parking stall. [ 39 ] She described her speed as being a maximum of 20 kilometres per hour and that this was a parking lot with which she was very familiar. [ 40 ] She was asked when she first saw the claimant's car and she said, "I guess I saw her when I hit her," at the moment of impact and said that it just happened, "Bang, just like that." She was asked where she had been looking at the time and answered, "Straight ahead." [ 41 ] She described having perhaps a half car width clearance from the parked cars and later, perhaps, a car or a car-and-a-half car

width clearance from the building. [ 42 ] She was asked why she didn’t stop and she said, "I got a shock, I was shocked." She thought she may have put her foot on the brake when the accident occurred or shortly thereafter and then, when she drove away to go around the ATM loop, that she was a bit slower than she had been going before that. [ 43 ] She was asked what happened when she came back and spoke with the claimant. She testified that, "I just said I hit you.

I'm sorry." When she was asked why she said she was sorry, she replied in her testimony, "When you do something wrong, you say, "Sorry."" She was asked if she had done something wrong and testified, "I don’t know." [ 44 ] She, though asked in different ways, at no time admitted that she had said the accident was her fault. [ 45 ] In terms of the answers to the contents of the conversations, her evidence was not very clear. It also was not consistent with the statement that she gave, I am satisfied, on May 21st to I.C.B.C. That is the first recorded statement that I.C.B.C. has from Ms. Granger, although Ms.

Granger has no recollection of it at this point.

She does not agree with everything that was in it, in particular, that she had said she was going between 2 and 5 kilometres an hour. [ 46 ] She also denied having a discussion about $600.00 and had no recollection of where that had come from. [ 47 ] Counsel has argued that the responsibility of a driver who is backing up is the dominant responsibility pursuant to s. 193 of the Motor Vehicle Act , which says that a driver of a vehicle must not cause the vehicle to move backwards at any place, unless the movement can be made in safety. [ 48 ] He has argued that the fact of the accident is clear that this could not have been made in safety and, therefore, the responsibility rests with the claimant. [ 49 ] Four cases have been provided by the defendant.

Those cases, I am satisfied, fairly set out what the current state of the law with respect to that

section in British Columbia. [ 50 ] In particular, in the decision of Carson and Henyecz , 2012 BCSC 314 , Justice Hyslop reviews the law starting at paragraph 45. It had been that this

section was interpreted for a number of years as being very much or very akin to absolute liability, however, in more recent years, that has been modified or softened to some degree, to the point where in a decision of Rinta and Vanderbasch , which is quoted at paragraph 50, in Rinta the justice describes the backing up

section as follows, that: It imposes a high standard of care and the conduct of a driver backing up, as this defendant was, must be considered in relation to that standard. [ 51 ] In Dechev and Judas , which is 2004 BCSC 1564 , Justice Boyd comments at paragraph 22: I agree with defence counsel that neither the provisions of the Motor Vehicle Act , nor the law generally require perfection on the part of the defendant.

The defendant is “not bound to guard against every conceivable eventuality but only against such eventualities as a reasonable man ought to foresee as being within the ordinary range of human experience.” [ 52 ] Some of the cases that were referred to me refer to pedestrians because they have pedestrians involved.

In this case it is two vehicles; this is not a pedestrian issue. [ 53 ] I am satisfied that the location of the accident falls within the definition of highway under the Motor Vehicle Act . [ 54 ] Negligence comes in a variety of forms and certainly not following the provisions of the Motor Vehicle Act can be seen as one form of negligence. Standard pleadings with respect to motor vehicle accidents include such other phrasing as failing to keep a proper lookout, although there is not a

section that says that a driver must keep a proper lookout. [ 55 ] The closest that comes to that are the provisions under s. 144 of the Motor Vehicle Act , which, generally speaking, are called the careless driving sections. Those sections speak of driving without due care and attention or driving without reasonable consideration for other vehicles on the road. It also includes excessive speeding for the conditions of the roadway. [ 56 ] In this case, in assessing the evidence as a whole, I find that the evidence that was given by Ms.

Brown was clear, consistent and cogent and consistent with statements she made at the outset and followed through with in terms of her other documentation. Her parents' evidence is limited, but it is corroborative of her evidence, as well. [ 57 ] With respect to Ms. Granger's evidence, I am less persuaded by it. The reality for Ms. Granger is the statement of any detail that she made to I.C.B.C. was about six weeks later. There were errors in it in terms of direction of travel that are clear. She has found other errors, including that the speed is different.

What is consistent in her statement with her evidence is that she did not see Ms. Brown's car. [ 58 ] In her evidence, today, she also described that as she was driving she was looking straight ahead. Given that Ms. Brown's car was pulling out and, I am satisfied, pulling out slowly, I am also satisfied the Ms. Brown was checking in all directions as she was backing out. That car was there then to be seen. [ 59 ] In terms of the cases that have been provided, particularly those that refer to pedestrians, there is a different balance of duty of care between a driver and a pedestrian, as between two drivers.

While there are some principles that are of some help there, they are not terribly helpful.

[ 60 ] In the case of McCraw v. Bortolon , 2005 BCPC 229 , the driver in that case admitted that he was already backing up before he looked at all and, in fact, did not look until he had had his accident. He just backed up. That is not the case, I am satisfied, here. [ 61 ] And in the case of Blehm and Corby , the vehicle that was backed into was stopped and, again, there to be seen. It was not a moving vehicle at the time of that accident. And there, again, is a shifting of duties of care dealing with moving vehicles and stopped vehicles. [ 62 ] The evidence of Ms.

Brown's mother and father was striking for the repetition in it of Ms. Granger that the accident was her fault and the discussions for resolving and paying for the damage reinforces that. Ms. Granger, even in her evidence, when asked why would she say sorry if she had not done anything wrong, became vague when asked if she did something wrong and said, "Well, I don’t know." [ 63 ] I am satisfied she said she was sorry because she really thought she had done something wrong and that the accident was her fault. [ 64 ] In all of these circumstances, I am satisfied that Ms.

Brown took all the precautions that were properly required of her. I am not certain that Ms. Granger has accurately recalled the full direction of her travel. If, indeed, she had driven past some 24 cars or 21 cars in that road, I do not see how, if she had been paying the slightest attention, she could have missed Ms. Brown's car. She could have swerved; she could have honked; she could have stopped.

But I am satisfied that her speed was such that her focus was on driving through that ATM driveway and was really not noticing what was alongside her. [ 65 ] In these circumstances, notwithstanding that the duty of care on the driver backing up is high, I am satisfied Ms. Brown, in these circumstances, met that duty and it was then for Ms. Granger to yield to her at that point. Ms. Granger simply was not paying attention.

That, frankly, falls within the driving without due care and attention provisions if there is to be found a fault under the Motor Vehicle Act , or not keeping a proper lookout, which can be part of that. [ 66 ] That being the case, I am finding that the fault for the accident is 100 percent with Ms. Granger and zero percent with Ms. Brown. This is my finding. (ORAL REASONS FOR JUDGMENT CONCLUDED)