MacDonald v. Goertz et al., (2009) 275 B.C.A.C. 68 (CA)

• Judge: Newbury, Low and K. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 27, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 275 B.C.A.C. 68 (CA);2009 BCCA 358

MacDonald v. Goertz (2009), 275 B.C.A.C. 68 (CA);

    465 W.A.C. 68

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. AU.025

Kaitlyn Chambers (respondent/plaintiff) v. Jessica Goertz, Masoom Ahmad, White Rock South Surrey Taxi Ltd., John Doe and John Doe Taxi Company (appellants/defendants)

(CA036063)

Kristy MacDonald (an infant by her litigation guardian, Anne-Lise MacDonald) (respondent/plaintiff) v. Jessica Goertz, Masoom Ahmad, White Rock South Surrey Taxi Ltd., John Doe and John Doe Taxi Company (appellants/defendants)

(CA036064)

Kristy MacDonald (an infant by her litigation guardian, Anne-Lise MacDonald) (respondent/appellant by cross-appeal/plaintiff) v. Masoom Ahmad and White Rock South Surrey Taxi Ltd. (appellants/respondents by cross-appeal/defendants) and Jessica Goertz, John Doe and John Doe Taxi Company (respondents/defendants)

(CA036068)

Kaitlyn Chambers (respondent/appellant by cross-appeal/plaintiff) v. Masoom Ahmad, White Rock South Surrey Taxi Ltd. (appellants/respondents by cross-appeal/defendants) and Jessica Goertz, John Doe and John Doe Taxi Company (respondents/defendants)

(CA036069)

(2009 BCCA 358)

Indexed As: MacDonald v. Goertz et al.

British Columbia Court of Appeal

Newbury, Low and K. Smith, JJ.A.

August 17, 2009.

Summary:

Two pedestrians were denied entry into a taxi cab. As they were returning to the curb on the opposite side of the street, they were struck by an oncoming vehicle. Two actions ensued.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. B40, apportioned liability 60% to the pedestrians, 30% to the driver of the oncoming vehicle and 10% to the taxi driver. The taxi driver's employer was held vicariously liable for the taxi driver's negligence. Six appeals/cross-appeals ensued. All the proceedings were heard together.

The British Columbia Court of Appeal dismissed the appeals and cross-appeals.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - A taxi driver (Ahmad) refused to allow a group of people into his taxi - As the group returned to the opposite side of the street, two of them (the plaintiffs) were struck by a vehicle driven by Goertz - Goertz had been blinded by the taxi's high beam lights - The trial judge apportioned liability 60% to the plaintiffs, 30% to Goertz and 10% to Ahmad - Ahmad appealed, asserting that the trial judge erred in applying the "material contribution" test rather than the "but for" test - The British Columbia Court of Appeal stated that the "material contribution" test had been used in two different contexts by the Supreme Court of Canada - The first context, which did not apply here, was a policy driven rule of law that permitted a plaintiff to "jump the evidentiary gap" and recover despite an inability to prove causation - The second context was where causation was established if it was shown that the defendant's negligence "materially contributed" to the occurrence of the plaintiff's injury - Every injury had multiple necessary or "but for" factual causes - The law took cognizance only of those causes that played a significant role in bringing about the outcome - The trial judge applied this conventional "but for" test - Her use of the phrase "contributing cause" signified that she found as a fact that Ahmad's conduct played an important role in the combination of events necessary for this occurrence to fix him with liability for the consequences - That was the correct approach - See paragraphs 15 to 23.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - A taxi driver (Ahmad) refused to allow a group of people into his taxi as the taxi did not have enough seat belts - As the group returned to the opposite side of the street, two of them (the plaintiffs) were struck by a vehicle driven by Goertz - Goertz had been blinded by the taxi's high beam lights - The trial judge apportioned liability 60% to the plaintiffs, 30% to Goertz and 10% to Ahmad - Ahmad appealed, asserting that the trial judge erred in finding him liable solely on the basis that his leaving the high beam lights on was a breach of duty and that the judge failed to consider whether that conduct caused the harm suffered by the plaintiffs - Ahmad asserted that the plaintiffs had to prove that but for his leaving his lights on high beam, the collision would have been avoided, or the impact lessened, and that they could discharge that burden only by establishing that if he had put his lights on low beam, Goertz would probably have seen the plaintiffs in time to avoid hitting them - The British Columbia Court of Appeal rejected the assertions - The trial judge concluded that Ahmad's lights blinded Goertz and that this was a contributing cause of the accident - That was all that the plaintiffs had to prove - Moreover, the submission overlooked the judge's finding that Ahmad also breached his duty to the plaintiffs by stopping his taxi in that location - The plaintiffs would not have been on the road at all but for that breach of duty, and it followed that that conduct was also a significant contributing cause of the accident - See paragraphs 24 to 27.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - A taxi driver (Ahmad) refused to allow a group of people into his taxi as he did not have enough seat belts - As they returned to the opposite side of the street, two of them (the plaintiffs) were struck by a vehicle driven by Goertz - Goertz had been blinded by the taxi's high beam lights - The trial judge apportioned liability 60% to the plaintiffs, 30% to Goertz and 10% to Ahmad - Ahmad appealed, asserting that the accident would not have occurred but for the plaintiff's negligence in crossing the street and that their negligence was the sole "proximate cause" of the accident - The British Columbia Court of Appeal rejected the assertion - The court stated that "'Proximate cause' is a phrase ill-suited to the task of identifying culpable causes in negligence. It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event. ... these implications are not correct - every event has multiple historical factual causes. The phrase 'proximate cause' is most often used in tort law synonymously with 'remoteness', that is, 'to inject some degree of restraint on the potential reach of causation' ... It suggests a limit on the scope of liability. There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy. It must be noted that the term's usefulness in insurance law has also been questioned ..." - See paragraph 29.

Torts - Topic 60

Negligence - Causation - Foreseeability - A taxi driver (Ahmad) refused to allow a group of people into his taxi as he did not have enough seat belts - As they returned to the opposite side of the street, two of them (the plaintiffs) were struck by a vehicle driven by Goertz - Goertz had been blinded by the taxi's high beam lights - The trial judge apportioned liability 60% to the plaintiffs, 30% to Goertz and 10% to Ahmad - Ahmad appealed, asserting that he should not be held liable because he could not reasonably have foreseen that the plaintiffs would walk into the path of Goertz's vehicle without looking - The British Columbia Court of Appeal rejected the assertion, stating that "... liability in negligence is not based on foreseeability of the precise way in which the harm occurred; rather, 'it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred' ... Here, that the plaintiffs might be harmed by oncoming traffic was a type of harm that was reasonably foreseeable by Mr. Ahmad and it did not matter for purposes of his liability whether he could reasonable foresee exactly how the harm would occur." - See paragraph 39.

Torts - Topic 60

Negligence - Causation - Foreseeability - At about midnight, Goertz was driving westerly on a familiar route - The road was glossy from rain - As she crested a small hill approaching an intersection, she saw a car facing her with its high beam lights on - She flashed her lights - The other car's lights did not switch to low beam - As she approached the intersection, she realized that the other car was stopped in the middle of the eastbound lane - She removed her foot from the accelerator but did not brake - She was able to see that the other vehicle was a taxi - She did not sound her horn as she had never seen pedestrians in this area - She kept her eyes on the road attempting to see past the taxi's lights - As she passed the front of the taxi, she saw a white object in her lane - She slammed on her brakes - She struck two pedestrians - The pedestrians had been denied entry to the taxi and were crossing the street to await for another taxi - The trial judge apportioned liability 60% to the pedestrians, 30% to Goertz and 10% to the taxi driver - Goertz appealed, asserting that the trial judge misapplied the foreseeability test and that she could not be liable unless she should have reasonably foreseen that persons at or near the taxi might cross into her lane of travel - The British Columbia Court of Appeal rejected the assertion - The risk of harm created by Goertz's proceeding when she could not see was that there might be someone in that lane whom she might strike - How the person came to be in that lane was immaterial - It was enough that she should reasonably have foreseen in a general way the class or character of injury which occurred - It was not necessary that she should reasonably have foreseen the precise way in which it occurred - The trial judge held implicitly that, when she was blinded by the headlights, Goertz had time to avoid the accident - There was no basis to interfere with the trial judge's findings or conclusion that Goertz was negligent - See paragraphs 46 to 50.

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - The British Columbia Court of Appeal stated that the novus actus interveniens doctrine was applied less stringently in modern times, with the statutory comparative fault regime, than it once was - See paragraph 35.

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - A taxi driver (Ahmad) refused to allow a group of people into his taxi as he did not have enough seat belts - As they returned to the opposite side of the street, two of them (the plaintiffs) were struck by a vehicle driven by Goertz - Goertz had been blinded by the taxi's high beam lights - The trial judge apportioned liability 60% to the plaintiffs, 30% to Goertz and 10% to Ahmad - Ahmad appealed, asserting that the plaintiffs' negligence in crossing the street was the sole cause of the accident and that their negligence was an intervening cause that broke the chain of causation - The British Columbia Court of Appeal rejected the assertion - The trial judge found that multiple negligent causes contributed to the accident - Ahmad's failure to stop in a safe place and to dim his lights, Goertz's continuing to drive when she could not see what was on the roadway in front of her, and the plaintiffs' failure to look before crossing the roadway - Whether a chain of causation had been broken was a question of fact just as it was a question of fact whether a particular cause was a contributing cause - The evidence justified the trial judge's conclusion - The harm that befell the plaintiffs was the very harm that made Ahmad's conduct tortious - It was not "an abnormal incident of the risk created by him" - It occurred in the ordinary course of things as a result of his negligent conduct - Accordingly, the plaintiffs' negligence was not an intervening cause - Rather it was but one of several culpable acts that contributed in combination to their injuries - See paragraphs 30 to 37.

Torts - Topic 352

Negligence - Motor vehicle - Pedestrians and bicyclists - On highway - At about midnight, Goertz was driving westerly on a familiar route - The road was glossy from rain - As she crested a small hill approaching an intersection, she saw a car facing her with its high beam lights on - She flashed her lights - The other car's lights did not switch to low beam - As she approached the intersection, she realized that the other car was stopped in the middle of the eastbound lane - She removed her foot from the accelerator but did not brake - She was able to see that the other vehicle was a taxi - She did not sound her horn as she had never seen pedestrians in that area - She kept her eyes on the road attempting to see past the taxi's lights - As she passed the front of the taxi, she saw a white object in her lane - She slammed her brakes - She struck two pedestrians - The pedestrians had been denied entry to the taxi and were crossing the street to await for another taxi - The trial judge apportioned liability 60% to the pedestrians, 30% to Goertz and 10% to the taxi driver - Goertz appealed, asserting that the trial judge should have dismissed the claim against her because she had the right of way and did not have a sufficient opportunity to avoid the accident - The British Columbia Court of Appeal dismissed the appeal - The trial judge concluded that the critical time was not when the pedestrians entered Goertz's lane of travel, rather, it was when Goertz realized that she was blinded by the taxi's headlights - The judge found that but for Goertz's failure to exercise due care at that earlier point in time, the accident would have been avoided - The right of way rule set out in Walker v. Brownlee (SCC) protected a driver proceeding lawfully with the right of way - Goertz was not proceeding lawfully - She was driving blindly into a situation fraught with reasonably foreseeable danger - She was therefore not entitled to assert a right of way - See paragraphs 41 to 45.

Torts - Topic 377

Negligence - Motor vehicle - Standard of care of driver - Visibility reduced - [See Torts - Topic - 352 ].

Torts - Topic 418

Negligence - Motor vehicle - Rules of the road - Right of way - Duty to yield - [See Torts - Topic 352 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - The two plaintiffs and three of their friends waited for a taxi at the corner of an intersection - The taxi, driven by Ahmad, stopped within the eastbound traffic lane, across the street from the plaintiffs and their friends - His high beam lights were on - Ahmad refused to allow the group into the taxi because he did not have enough seatbelts - He called for a bigger taxi to pick the group up - As the group returned to the corner, the plaintiffs were struck by an approaching car driven by Goertz - The trial judge apportioned liability 60% to the plaintiffs, 30% to Goertz and 10% to Ahmad - The plaintiffs were contributorily negligent in crossing the westbound lane into the path of the Goertz vehicle without looking - The plaintiffs asserted that the trial judge should have apportioned fault 40% to Ahmad and only 30% to them - The British Columbia Court of Appeal rejected the assertion - The plaintiffs' submissions were, for the most part, directed to the degree to which Ahmad's culpable conduct contributed to causing the accident - To that extent, they were misguided - The apportionment of fault under the Negligence Act was not an assessment of the degree to which each person's fault caused the damage - It was an assessment of the amount by which each causative agent fell short of the standard of care that was required of that person in all of the circumstances - To the extent that their submissions were directed to the degree to which Ahmad's conduct departed from the requisite standard of care, it amounted to a submission that the court should substitute its assessment of relative fault for that of the trial judge - There was no basis to interfere with the trial judge's apportionment of fault - See paragraphs 54 to 59.

Torts - Topic 6633

Defences - Contributory negligence - Particular cases - Failure to keep proper lookout - [See Torts - Topic 6603 ].

Cases Noticed:

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, consd. [para. 15].

Fairchild v. Glenhaven Funeral Services Ltd. et al., [2002] 3 All E.R. 305; 293 N.R. 1; [2002] UKHL 22, refd to. [para. 17].

Barker v. Corus (UK) plc, [2006] 2 A.C. 576; 351 N.R. 102; [2006] UKHL 20, refd to. [para. 17].

Cook v. Lewis, [1951] S.C.R. 830; [1952] 1 D.L.R. 1, refd to. [para. 17].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 198 D.L.R.(4th) 193; 2001 SCC 23, refd to. [para. 17].

Sam v. Wilson et al. (2007), 249 B.C.A.C. 228; 414 W.A.C. 228; 78 B.C.L.R.(4th) 199; 2007 BCCA 622, refd to. [para. 17].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235; [1997] 1 W.W.R. 97, consd. [para. 18].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 19].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161; 136 D.L.R.(4th) 502; 107 C.C.C.(3d) 481, refd to. [para. 21].

Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 (H.L.), refd to. [para. 22].

Myers and Myers v. Peel County Board of Education and Jowett, [1981] 2 S.C.R. 21; 37 N.R. 227; 123 D.L.R.(3d) 1; 17 C.C.L.T. 269, refd to. [para. 26].

C.C.R. Fishing Ltd. and Bank of Montreal v. British Reserve Insurance Co. et al., [1990] 1 S.C.R. 814; 109 N.R. 1; 69 D.L.R.(4th) 112; [1990] 3 W.W.R. 501, refd to. [para. 29].

Derksen et al. v. 539938 Ontario Ltd. et al., [2001] 3 S.C.R. 398; 277 N.R. 82; 153 O.A.C. 310; 205 D.L.R.(4th) 1; 2001 SCC 72, refd to. [para. 29].

Lawrence v. Prince Rupert (City) et al. (2005), 219 B.C.A.C. 103; 361 W.A.C. 103; 49 B.C.L.R.(4th) 89; 2005 BCCA 567, dist. [para. 31].

Scurfield v. Cariboo Helicopter Skiing Ltd. et al., [1993] 3 W.W.R. 418; 21 B.C.A.C. 308; 37 W.A.C. 308; 74 B.C.L.R.(2d) 224 (C.A.), dist. [para. 31].

British Columbia v. Zastowny - see X v. R.D.M.

X v. R.D.M., [2008] 1 S.C.R. 27; 370 N.R. 365; 250 B.C.A.C. 3; 416 W.A.C. 3; 290 D.L.R.(4th) 219; 53 C.C.L.T.(3d) 161; 2008 SCC 4, refd to. [para. 34].

Kalogeropoulos and Millette v. Côté et al., [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 38].

Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.), dist. [para. 42].

McEvay v. Tory, [1990] 6 W.W.R. 763; 49 B.C.L.R.(2d) 162; 4 C.C.L.T.(2d) 141 (C.A.), appld. [para. 49].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 50].

Cempel v. Harrison Hot Springs Hotel Ltd., [1998] 6 W.W.R. 233; 100 B.C.A.C. 212; 163 W.A.C. 212; 43 B.C.L.R.(3d) 219 (C.A.), refd to. [para. 55].

Asody v. Taylor, [1975] 2 S.C.R. 414; 3 N.R. 381; 49 D.L.R.(3d) 724, refd to. [para. 58].

Authors and Works Noticed:

Stapleton, Jane, Cause-in-Fact and the Scope of Liability for Consequences (2003), 119 L.Q.R. 388, pp. 394, 395 [para. 16, footnote 3].

Stapleton, Jane, Lords a'Leaping Evidentiary Gaps (2002), 10 Torts L.J. 276, generally [para. 17].

Counsel:

P.M.E. Abrioux, for Jessica Goertz;

C.M. Duplessis, for Masoom Ahmad and White Rock South Surrey Taxi Ltd.;

F.E. Hayman, for Kristy MacDonald and Kaitlyn Chambers.

These appeals were heard in Vancouver, British Columbia, on May 27, 2009, by Newbury, Low and K. Smith, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on August 17, 2009, when the following opinions were filed:

K. Smith, J.A. (Low, J.A., concurring) - see paragraphs 1 to 60;

Newbury, J.A. - see paragraphs 61 to 62.