September 12, 2014 by FH&P Lawyers
I recently had the opportunity to run a liability only trial where a six year old boy emerged from his driveway in a residential neighbourhood and was struck by a van almost immediately upon entering the roadway.
The issue for the judge to consider was whether or not the driver of the van had exercised a heightened duty of awareness while proceeding through a neighbourhood where the presence of children was known to him. As drivers, we owe a duty of care to other people using the road whether they are cyclists or other motor vehicles. However, when travelling through an area where the presence of children are known, or ought to be known, drivers must exercise greater care than they otherwise would if they were travelling on a highway for example. The Courts have said that a driver must take special precautions for the safety of children seen and any children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp lookout, perhaps sounding the horn and immediately reducing the speed of the vehicle so as to be able to take evasive actions if required (Bourne (Guardian of) v Anderson 1997 Canlii 1145 BCSC para. 55).
In our case, the Defendant knew there were children living in the neighbourhood and had seen children playing outside in the past. The Defendant was travelling home when the Plaintiff suddenly emerged from his driveway and from behind a tent trailer parked on the side of the road. The Defendant’s evidence was that he was travelling 30km/hr and did not see the Plaintiff until he was right in front of his vehicle. The defence argued that the Defendant did nothing wrong and could not have avoided the accident.
We argued that the Defendant did nothing to satisfy the heightened duty of care to where he was taking “special precautions”. We further argued that negligence could not be attributed to a six year old as he as too young to understand the repercussions of his actions.
Ultimately the judge found that this incident was simply that, an accident. The judge did not apportion liability; he simply dismissed the Plaintiff’s claim. He found the Defendant could have done nothing more to avoid the accident. The judge did not comment on the issue of a six year old being contributory negligent, simply that the Defendant had no time to avoid the collision.