|Nayar v. Doe and ICBC, licence plate number of the vehicle was provided to the police by witnesses to the accident. The vehicle was stolen, as were the plates.|
IN THE SUPREME COURT OF BRITISH COLUMBIA
Jane Doe and
Before: The Honourable Madam Justice Gropper
Oral Reasons for Judgment
September 9, 2008
 The plaintiff, Mr. Nayar, was injured in a motor vehicle accident on June 25, 2004, when an unidentified driver drove into the bottom half of his body, threw him onto the hood of the car, and accelerated for several blocks before making a sharp turn causing Mr. Nayar to fall off the car hood and onto a concrete road. This action has been severed. The only issue before me is liability.
 The defendants assert that Mr. Nayar was wholly at fault or, in the alternative, contributorily negligent in causing his injury.
 Section 24(1) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, which was in force at the time this event occurred and when the writ of summons and statement of claim were filed, provides:
24 (1) If bodily injury to or the death of a person or damage to property arises out of the use or operation of a motor vehicle on a highway in British Columbia and
(a) the names of both the owner and the driver of the motor vehicle are not ascertainable, or
(b) the name of the driver is not ascertainable and the owner is not liable to an action for damages for the injury, death or property damage,
any person who has a cause of action
(c) as mentioned in paragraph (a), against the owner or the driver, or
(d) as mentioned in paragraph (b), against the driver,
in respect of the bodily injury, death or property damage may bring an action against the corporation as nominal defendant, either alone or as a defendant with others alleged to be responsible for the injury, death or property damage, but in an action in which the names of both the owner and the driver of the motor vehicle are not known or ascertainable, recovery for property damage is limited to the amount by which the damages exceed the prescribed amount.
 If a person is injured in a motor vehicle accident and the owner and driver of the motor vehicle are not ascertainable, the plaintiff may bring an action against the Insurance Corporation of British Columbia (“ICBC”) as a nominal defendant.
 Section 24(5) requires that the court be satisfied that all reasonable efforts have been made to ascertain the identity of the unknown owner and/or driver and that the identity of that person or those persons is not ascertainable.
 In this case, the licence plate number of the vehicle was provided to the police by witnesses to the accident. The vehicle was stolen, as were the plates.
 I am satisfied that despite all reasonable efforts, the identity of the owner and the driver is not known. Therefore, ICBC is the nominal defendant.
 I will refer to the unidentified driver as "Jane Doe."
 The plaintiff is 39 years old. He is a university graduate. He immigrated to Canada from India in 1998 and moved to the Lower Mainland in 1999. Since then, he has been employed in the retail petroleum industry. He started as a gas attendant at an Esso station in Surrey. After some months, he moved to become an assistant manager at a Petro Can station in Coquitlam. He provided services to customers and also assisted in hiring and training employees. He then moved to another station at 120th Street and 90th Avenue, also as an assistant manager.
 In November 2003, the plaintiff married. He was interested in becoming a franchisee of a petroleum retailer. He applied to Petro Canada and to Esso. Esso offered him a franchise and, in April 2004, he became the franchisee at the Esso station at 120th Street and 64th Avenue in Surrey.
 In his positions as gas attendant, assistant manager and franchisee, the plaintiff received training and provided training to other employees in accordance with the policy and procedures manual of his employers. He was trained and he trained others about the proper response when an individual dispenses gas into his or her vehicle and leaves the station without paying, which is referred to as "gas-and-dash."
 The gas-and-dash instructions from both Petro Canada and Esso were the same, and they are:
1. record the plate number of the car and call the police;
2. the appearance of the individual means nothing; you cannot tell which customer will steal;
3. do not confront the individual; you may be dealing with a desperate or irrational person;
4. the gas attendant's safety is more important than any amount of gas; and
5. let the police do the job they were trained for, that is, identify and catch the criminals.
 The plaintiff had experienced gas-and-dash circumstances as an employee at Petro Can and Esso, as well as at his own station. He followed the gas-and-dash instructions.
 At the time, the procedure for obtaining gas at the Esso is the same as at Petro Can. The customer comes to the gas pump, removes the nozzle from the pump, and places it in the vehicle to access the gas tank. At that time, a light in the station goes on and the attendant then must push a button to allow the gas to flow. The customer pumps the gas, replaces the nozzle, and then comes into the station to pay for the purchase.
 On June 25, 2004, the plaintiff was the attendant at his gas station on 120th Street and 64th Avenue. He started work at 5:30 a.m. Between 10:00 and 10:30 a.m., the plaintiff says, a nicely-dressed female, Jane Doe, drove up to the pumps in a blue Volkswagen Golf. She pumped $10.00 worth of gas into the Volkswagen. Instead of paying, Jane Doe slowly drove out of the 64th Avenue exit from the station and made a right turn onto 64th Avenue.
 The plaintiff says he thought that Jane Doe had forgotten to pay. He went outside to get her licence plate number. The Volkswagen had Alberta plates. Jane Doe was stopped on 64th Avenue. The plaintiff says that Jane Doe saw him coming, or he assumed that she saw him coming. He made a gesture to her about payment; he rubbed his thumb and forefinger together. Jane Doe showed him something in her hands which was black and about 7 inches by 3 inches in dimension. The plaintiff thought it was a wallet. He started to walk in front of the car. He says that when he was at the left front headlight of the Volkswagen, Jane Doe accelerated and hit the plaintiff’s left knee. He ended up chest down, sprawled on the hood of the Volkswagen. He hung on with his fingers in the trough area of the hood where the wipers are stored.
 The Volkswagen turned right onto 120th Street and started to accelerate. The plaintiff told Jane Doe to stop, but she yelled at him. She was going over 100 kilometres per hour. The plaintiff did not consider it safe to get off the hood, so he held on as tight as he could.
 Jane Doe sped north on 120th Street, and then abruptly turned left, which caused the plaintiff to lose his grip. He landed on the concrete road and injured his legs. Jane Doe did not stop. She ignored the plaintiff and left.
 There was a construction project on 120th Street on June 25, 2004. The two flag people for that project are witnesses.
 Shannon Healey was standing kitty-corner from the gas station. She says she heard the gas attendant, who we know to be the plaintiff, shouting and she heard honking. She saw the Volkswagen. The plaintiff was in front of it. He had his arms up and his palms facing the driver in a stop position. The Volkswagen was inching up towards him. The plaintiff placed his palms on the hood of the Volkswagen at which time the Volkswagen accelerated. Ms. Hui saw the plaintiff on the hood of the Volkswagen which turned right and headed north onto 120th Street. She then lost sight of the vehicle.
 Sabrina Borys was a flag person on 120th Street in the northeast section of the intersection. A passing motorist directed her attention to the Volkswagen on 64th Avenue. She turned and saw that the Volkswagen was not moving. She also saw a man standing in front of it. She walked over and asked, "What the hell is going on?" The plaintiff said something which she did not understand. He appeared to be distressed. Ms. Borys heard Jane Doe revving the engine; pushing on the gas with her foot and then taking her foot off. According to Ms. Borys, the plaintiff remained in front of the Volkswagen and, when Jane Doe accelerated forward, he ended up on the hood of the car. The car then turned right. Ms. Borys put up her stop sign but Jane Doe did not stop and Ms. Borys had to move out of the way.
Position of the Parties
The Plaintiff's Position
 The plaintiff says that the motor vehicle accident was wholly the fault of Jane Doe. Whether the Volkswagen was stationary or moving, whether the driver had stopped or did stop the plaintiff was there to be seen. Jane Doe’s vehicle collided with him and drove with him on the hood of the Volkswagen, accelerating north on 120th Street. Jane Doe then turned left which caused the plaintiff to fall off the hood and onto the road, which resulted in his injuries.
 The plaintiff refers to the decision of Gallson v. Butzow, 16 M.V.R. (3d) 241,  B.C.J. No. 1874 (S.C.) where both the plaintiff and the defendant were very inebriated. In Gallson, the plaintiff was on the hood of a slowly moving vehicle and the choice he made not to jump or roll off was motivated by his anger toward the defendant. The trial judge found the plaintiff 25% contributorily negligent.
 The plaintiff also referred to the trial decision and that of the Court of Appeal in Guiliani v. Saville,  B.C.J. No. 273, 77 A.C.W.S. (3d) 317 (S.C.); 1999 BCCA 768, 72 B.C.L.R. (3d) 346. In that case, the defendant had raised his middle finger to the plaintiff and then gestured to the plaintiff to fight. The plaintiff saw the defendant in his vehicle and knew that it was accelerating towards him. Despite that, he continued to stand in the road even though he had ample time to get out of the way. The trial judge found the plaintiff to be 30% contributorily negligent. The Court of Appeal overturned that finding and found that the defendant was entirely at fault for the plaintiff's injuries.
 The plaintiff also refers to the decision of Wepruk v. McGarva, 2005 BCSC 508,  B.C.J. No. 744; 2006 BCCA 107,  B.C.J. No. 514, where the plaintiff struck the defendants' vehicle both on the front and rear windows with a wooden post after the defendants’ vehicle followed the plaintiff’s van into the plaintiff’s driveway. The plaintiff then stood between his van and the car. The plaintiff claimed that the defendants’ vehicle then struck him, reversed, and struck him again – pinning him against his van. The trial judge did not find the plaintiff to be contributorily negligent. Her decision was upheld by the Court of Appeal.
The Defendant's Position
 The defendant says the plaintiff is wholly to blame for his injuries. He engaged in foolish and unreasonable conduct. As an employee, an assistant manager, and franchisee in the retail petroleum industry, he was aware of the gas-and-dash instructions and he did not follow them. Specifically, the plaintiff recorded the licence number of the vehicle driven by Jane Doe, but he did not report to police. Furthermore, the plaintiff made the assumption that Jane Doe had innocently forgotten to pay for the gas based on his observations that she was a well-dressed female and that she drove slowly away from the pumps to the 64th Avenue exit and onto 64th Avenue. The defendant argues that the plaintiff knew Jane Doe was potentially irrational, desperate, and posed a threat to his safety and that he confronted her knowing that $10.00 worth of gas was not worth compromising his own safety.
 The defendant asserts that the witnesses' evidence should be preferred over that of the plaintiff as they have no monetary interest in the outcome. The plaintiff says he acted rationally and that Jane Doe's conduct lured him to get in front of the vehicle based on her presenting what appeared to be a wallet; however, the witnesses describe his standing in front of the Volkswagen, making a stop motion, and then placing his hands on the hood. Ms. Healey said he remained in that position despite the Volkswagen inching forward towards him. Ms. Borys described the plaintiff as distressed and said that he remained in front of the Volkswagen while the driver was revving the engine.
 The defendant argues the plaintiff thus had warning of what was going to happen and knew that he was dealing with an irrational person; however, despite this knowledge he stood his ground and he remained in harm's way.
 The defendant refers to Meyer v. Parker, 7 B.C.L.R. (3d) 131,  B.C.J. No. 738 (S.C.); 21 B.C.L.R. (3d) 33,  B.C.J. No. 1143 (C.A.), where the plaintiff came to his friend's aid while she was working alone at a convenience store. The plaintiff’s friend had telephoned him from the store, asking for his assistance as three male teenagers were arguing with her. The plaintiff managed to get the teenagers out of the store and then he proceeded to follow after them and was subsequently assaulted by the wrongdoer. The plaintiff, Mr. Meyer, sued the owner of the store claiming liability against it as occupier and for dangerous premises. His claim was dismissed. The trial court held that once the danger had passed, the plaintiff left a place of safety; his actions were foolhardy and unreasonable and he did not exercise reasonable care for his own safety. The decision of the trial judge was affirmed by the Court of Appeal.
 The defendant also refers to Holmes v. Michaelis,  B.C.J. No. 2798 (S.C.), where the defendant was apparently crossing a picket line and accidentally drove over the plaintiff who was standing in front of his vehicle. The defendant drove up in a pick-up truck and the plaintiff attempted to prevent the defendant’s vehicle from proceeding. A third party opened the truck’s driver door and physically assaulted the defendant while he was trying to proceed. The plaintiff, the defendant, and the third party were held equally at fault, each bearing an equal portion of the liability.
 I accept that the plaintiff did not follow the gas-and-dash instructions. He breached every aspect of them. I also accept that the witnesses' versions of the events are more reliable. Perhaps the plaintiff is trying to exculpate himself, perhaps he does not remember what happened, or perhaps he did not observe the inching forward and the revving of the engine. Regardless, I accept that the Volkswagen did inch forward and the engine was revved. I further accept the witnesses' description of the plaintiff standing in front of the Volkswagen with his palms facing the driver and then subsequently placing his hands on the hood. I accept that the plaintiff had an opportunity to retreat and did not.
 The plaintiff's injuries were caused by the flagrant and almost unforeseeable conduct of Jane Doe. I refer to the B.C. Court of Appeal decision in Guiliani at ¶11:
In this case, there is no doubt that the plaintiff could see the defendant coming but it was not reasonably foreseeable that the defendant, who could see him equally well, would continue to drive towards him at an accelerated speed. … [T]his is a case of negligence on the part of the defendant of a kind and degree which is so great as to render it not reasonably foreseeable to the plaintiff that he was at risk until the car had got too close to him for him to take effective evasive action. The defendant's conduct was flagrant and deliberately reckless.
 The plaintiff saw Jane Doe show him what he thought was a wallet and he apparently assumed she was going to pay for the gas. He was wrong and in retrospect, he was reckless in standing in front of the car. Jane Doe was there to be seen, as was the plaintiff. It was not reasonably foreseeable that Jane Doe would drive into him, accelerate away with him on the hood and then make an abrupt turn, causing him to fall off the Volkswagen hood onto the surface of the road.
 While the plaintiff knew that people engaged in gas-and-dash enterprises can be desperate and irrational, that does not translate into the subsequent events that occurred here being reasonably foreseeable. Jane Doe's conduct was flagrant and deliberately reckless. In determining whether the plaintiff is contributorily negligent, as Guiliani points out (at ¶12):
I would, therefore, hold that no contributory negligence should have been found… There was in my view an error in principle in the approach to the allocation of fault in that it was not put on the basis which this Court held in Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, should be employed. That basis is that the apportionment should be based on the degrees of fault rather than assessing relative degrees of causation as between the parties.
 It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault. The events and the injuries which the plaintiff sustained were due to Jane Doe's blameworthiness. Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff's injuries were the actions of Jane Doe.
 Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase. The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases. This is a much more infallible gas-and-dash avoidance procedure.
 In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff's injuries which resulted.
 Judgment is therefore entered against the nominal defendant, ICBC.
“The Honourable Madam Justice Gropper”