|Adams v. Zanatta, travelling northbound on a paved alley on his kick scooter. He was 9 years old. crossed 19th Avenue, he collided with a van|
IN THE SUPREME COURT OF BRITISH COLUMBIA
Jonathan Adams, by his Litigation Guardian, Karen Choo
Neil Zanatta and Rest-Well Mattress Company Ltd.
Before: The Honourable Madam Justice B.J. Brown
Reasons for Judgment
 On Saturday, August 5, 2006 at approximately noon, Jonathan Adams was travelling northbound on a paved alley on his kick scooter. He was 9 years old. The alley sloped down from south to north toward 19th Avenue. A large solid fence obstructed Mr. Adams’ view east on 19th Avenue and the view of drivers approaching from the east. As Mr. Adams crossed 19th Avenue, he collided with a van driven by Mr. Zanatta. Mr. Zanatta was driving westbound on 19th Avenue. Mr. Adams struck Mr. Zanatta’s vehicle behind the driver’s side door. Mr. Adams does not recall the accident. I am to determine liability.
 Ms. Choo, Mr. Adam’s mother, testified that he received the kick scooter for Christmas when he was four years old. He was a proficient scooter rider. On August 5, 2006, he was at his friend Curtis’s house at 20th Avenue and Rupert Street, approximately 1 ½ blocks from the scene of the accident. She said that she had had conversations with her son about traffic safety, telling him to stop before crossing, etc., and she had no doubt that he understood.
 Jonathan Adams said that he was born December 23, 1995. At the time of the accident, he had just finished grade 5. He rode his kick scooter frequently in the summer, some 2 to 3 days per week. He was aware of the rules of the road. He had been taught by his parents and looked both ways before crossing the street. He knew that it was important to stop and look both ways before crossing the street and that it was important to make eye contact with the driver before crossing.
 Mr. Zanatta said that he was 63 years old at the time of the accident. On the day of the accident he was on his way to his brother’s house on 19th Avenue. He had lived in the neighbourhood for many years and was very familiar with the area. He returns to the neighbourhood frequently because his brother still lives in the neighbourhood. It was approximately noon. The road conditions were good and dry. Mr. Zanatta had been driving south on Rupert Street before he turned right onto 19th Avenue. He slowed to make the turn and then put his foot on the gas. He was looking forward. There were several cars on both sides of the street. As he approached the intersection with the lane, from his left side he caught a glimpse of a boy coming down the lane very fast. In his opinion, the boy had lost control. He did not look at his speedometer after he turned right from Rupert Street. He has been back to the scene many times and drove the same way. He now estimates that he was travelling approximately 20 kilometers per hour immediately before the accident.
 He applied his brake as soon as he saw the boy and the scooter. He estimated that he was close to the tree and portable toilet shown in picture 8, tab 2 of exhibit 4. Although Mr. Zanatta was not able to estimate Mr. Adams’s speed, he said that Mr. Adams was travelling very fast and was not wearing a helmet. He was just by the fence, coming out from the alley. Mr. Zanatta braked as hard as he could and tried to swerve to the right, but could do nothing to avoid the accident. Mr. Adams ran into the side of the van before Mr. Zanatta brought it to a stop.
 Mr. Zanatta grew up in the neighbourhood and knew that there were children in the neighborhood. He had seen kids on bicycles and knew that it was possible that children would be around. He always slows down because of the fence and the alley. He was looking straight ahead, not towards the fence. He spotted the plaintiff out of the corner of his eye. He cannot estimate Mr. Adams’s speed of travel; he can only say that he was going very fast. He assumed that Mr. Adams would cross 19th Avenue without stopping; there was no way he could stop. He slammed on his brakes as soon as he saw the boy.
 The evidence does not permit me to determine exactly how fast Mr. Adams or Mr. Zanatta were traveling.
 I do not accept that Mr. Adams was travelling at 5 or 10 km per hour. I say this for three reasons:
1. 5 or 10 km per hour is a walking or jogging speed. This is not consistent with Mr. Zanatta’s description, which I accept, that the plaintiff was travelling very fast, faster than he had ever seen anyone travel on a scooter.
2. If Mr. Adams were travelling at 5 or 10 km per hour, a walking or jogging speed, he could easily have stopped the scooter by putting his foot down or stepping off of the scooter. That he did not persuades me that he was travelling faster than 5 or 10 km per hour.
3. Third, the expert evidence with respect to tests of coasting speeds of scooters on various inclines suggests that Mr. Adams may have been travelling significantly faster than 15 km per hour.
 With respect to Mr. Zanatta’s speed, I accept his evidence that he has been by the scene several times since his examination for discovery and that his best estimate is that he was travelling approximately 20 km per hour immediately before he saw Mr. Adams and applied his brakes. At discovery, Mr. Zanatta said:
242 Q Okay. Do you recall how fast you were travelling when you first saw the plaintiff?
A I didn’t look at the speedometer, but I was going fairly slow.
243 Q Can you give me an estimate?
A I don’t know. I -- 10 kilometres ....
 Although Mr. Zanatta gave this estimate of speed at his discovery, people have difficulty in estimating their speed without the assistance of a speedometer. Mr. Zanatta said that he had not looked at his speedometer after he turned the corner. He said that he was guessing at discovery. I place greater reliance on his estimate after returning to the scene than I do on his “guesstimate” at discovery.
 The same is true with respect to Mr. Zanatta’s estimates of the time that passed between him seeing Mr. Adams and braking, etc. Again, people have a great deal of difficulty in estimating time in seconds or fractions of seconds, particularly when they are under stress, as Mr. Zanatta would have been when braking to avoid collision.
 I also reject the plaintiff’s suggestion that Mr. Zanatta took a “wait and see approach” after he saw Mr. Adams. I accept Mr. Zanatta’s evidence that he braked hard as soon as he saw the plaintiff.
 I am not satisfied that Mr. Zanatta was negligent or that any negligence on his part caused the accident.
 The Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the Act”) provides:
176 (2) The driver of a vehicle about to enter or cross a highway from an alley, lane, driveway, building or private road must yield the right of way to traffic approaching on the highway so closely that it constitutes an immediate hazard.
183 (1) In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle.
Cycle is defined as a device with any number of wheels propelled by human power.
181 Despite sections 178, 179 and 180, a driver of a vehicle must
(a) exercise due care to avoid colliding with a pedestrian who is on the highway,
(b) give warning by sounding the horn of the vehicle when necessary, and
(c) observe proper precaution on observing a child or apparently confused or incapacitated person on the highway.
 Mr. Adams, riding his kick scooter from the alley across 19th Avenue, had a duty to yield to traffic approaching so closely as to constitute an immediate hazard. He was the servient driver. Mr. Zanatta was the dominant driver. Mr. Zanatta had the right of way.
 In Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.), the Court of Appeal sets out the applicable principle:
18 In my opinion, when a driver in a servient position disregards his statutory duty to yield the right of way and a collision results, then to fix any blame on the dominant driver, the servient driver must establish that after the dominant driver became aware, or by the exercise of reasonable care should have become aware, of the servient driver's own disregard of the law, the dominant driver had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself. In such circumstance any doubt should be resolved in favour of the dominant driver. As stated by Cartwright J. in Walker v. Brownlee, , 2 D.L.R. 450 (S.C.C.), at p. 461:
While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.
 I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard. To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.
 I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.
 Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue. He was aware of the obstructed view of the alley caused by the fence. He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street. Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour. I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams. At that point, Mr. Adams was just by the fence, coming out of the alley. Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.
 The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent. He was not traveling at an excessive speed for the circumstances. I am satisfied that he was driving very slowly.
 The plaintiff argues that Mr. Zanatta should have scanned the alley, rather than looking forward and had he done so, he could have avoided the accident. I am not persuaded, on the evidence before me, that had Mr. Zanatta been looking toward the alley he would have seen Mr. Adams any sooner, or that he would have had time to avoid the collision.
 It is apparent from the photos of 19th Avenue that the fence would obstruct a driver’s view of a child on a kick scooter. Even had he been looking at the alley as Mr. Adams emerged from behind the fence, I am not satisfied that Mr. Zanatta could have avoided the accident. Put another way, I am not satisfied that had he been looking at the alley, Mr. Zanatta would have seen Mr. Adams earlier than he did and would have had time to avoid the collision.
 The parties each advanced arguments based on assumed rates of travel for Mr. Adams and Mr. Zanatta. These arguments depend on very fine distinctions in speed, braking time, etc. So, for example, if Mr. Zanatta was traveling 20 km per hour and Mr. Adams 13 km per hour, Mr. Zanatta would have had time to stop, assuming a perception reaction time of 1.8 seconds, but if Mr. Adams was travelling 14 km per hour, Mr. Zanatta would not be able to stop in time. Or, if Mr. Zanatta was traveling 30 km per hour, he could not stop if Mr. Adams was traveling faster than 11 km per hour.
 These rates are speculative. As the Court of Appeal said in Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273 at 279-280 (C.A.), aff’d  S.C.R. 669:
The onus was on the respondent to establish on a balance of probabilities that the appellant could, by the exercise of reasonable care, have avoided a collision with the respondent’s car. In my view this onus can be discharged only by reliable evidence of time, distance, speed, the point at which the respondent’s car became out of control and visible to the appellant and the place on the highway where the collision occurred. There is no room for guesswork or conjecture on these matters. Inference yes, but based on proven facts.
...When a person who has negligently created such a danger as the respondent created endeavours to saddle a driver in the appellant’s position with a portion of blame by means or partly by means of mathematical calculation of distances and times, as is the case here, the premises on which the calculations are based must be established by much more than vague and ill-defined testimony.
 Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour. Mr. Adams was traveling quickly. I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling. Mr. Adams did not stop. As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.
 As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side. I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street. In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.
 Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:
Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway. Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably. Mr. Justice Taylor said this: “Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time” (my emphasis). This is especially so in suburban areas.
 As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue. As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty. A reasonably careful driver would not have done more.
 I do not attribute any liability to Mr. Zanatta for the accident.
“B.J. Brown J.”