March 19, 2014

Kevin Gourlay

Kevin Gourlay

The Court of Appeal released reasons today in Russell v. Parks, 2014 BCCA 104, overturning the trial judge’s apportionment of liability and awarding future care costs that had been refused.

The plaintiff was hit by the defendant’s vehicle in a Cranbrook strip mall parking lot.  He had stepped over a small concrete barrier and was walking diagonally across a parking stall when he was hit by the defendant who was looking over his shoulder at the moment of impact.

The trial judge found that when the plaintiff has stepped over the barrier, he had “left a place of safety” as that term is used in s. 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.”  The breach of that section contributed to his attribution of 2/3 fault against the plaintiff.

On appeal, the Court found that s. 179 applies to matters where the pedestrian is approaching a crosswalk.  Where there are no crosswalks at issue, the more general duties found in ss. 180 and 181 should be applied.

Further, were there crosswalks, s. 179(2) is only triggered if the pedestrian leaves a places of safety when the vehicle is so close that it is impracticable for the driver to yield the right of way.  Such was not the case here.  Madam Justice Bennett, for the Court, substituted a 75/25 split in favour of the plaintiff.

The trial judge had dismissed the plaintiff’s future care claims in their entirety.  The Court of Appeal allowed unspecified amounts for a variety of care claims, reiterating that the test for such claims does not require evidence from a physician regarding the medical necessity of each and every item claimed.  Rather, there “must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional.”  That professional can be an occupational therapist rather than a doctor.

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