Aiken v. Van Dyk et al, 2001 BCSC 1217
This is an infant pedestrian collision in which a 14 month old infant was struck by the front tire of a garbage truck in a cul-de-sac residential neighbourhood. Liability is contested.
On the day in question, the infant Plaintiff, her sister, who was 5 years of age, and a friend were playing in the front yard while the father was doing yard work.
Monday was garbage day, and the garbage truck entered the cul-de-sac to pick up garbage. The Defendant Van Dyk was the owner of the truck and a contract employee of the Cariboo Regional District. He was into his 2nd year contract at the time of this collision. The Defendant was familiar with this neighbourhood. Facts confirm he picked garbage up from approximately 625 homes on Mondays. On the day in question, he had a “swamper” assisting him with emptying garbage into the back of the truck. When they arrived at the home of the infant Plaintiff, the Defendant Van Dyk exited the truck while the swamper was emptying the garbage into the back of the truck. The Defendant Van Dyk spoke with the Infant Plaintiff’s father, Mr. Aiken during this time. As he entered the garbage truck to depart the premises, he observed Mr. Aiken walking up the driveway with the two older children. He did not see the infant Plaintiff. He checked his mirrors, windows, and reversed the garbage truck. The evidence by a witness was that the garbage truck rolled forward at a time when the infant Plaintiff ran towards the front tire, she was knocked to the ground and run over by the front right tire. The infant Plaintiff was injured and has sustained a permanent limp, resulting in various limitations.
This is a new trial after the Court of Appeal on the first trial ordered a new trial. The issue to be analyzed is liability as it relates to Mr. Aiken, the infant Plaintiff’s father, and the Defendant, Mr. Van Dyk. The swamper was also named in this action and liability against the swamper must also be analyzed.
It was determined that Mr. Aiken had an error in judgment in the care of his daughter, and was held responsible for his daughter’s injuries at 80% fault as he was primarily responsible for her care.
The Defendant Van Dyk, on behalf of the swamper, was held 20% liable, for failing to see the child who was dangerously close to the garbage truck.
The following cases were referenced in analyzing this case:
PLAINTIFF’S AUTHORITIES
“The mother of a two-year old child was found 15% at fault when the mother placed the child on the edge of a road and the child was struck by an approaching vehicle. In Faint v. Costin it is apparent that the court found the driver was driving in excess of the speed limit on a narrow road and failed to see the child when he or she should have. The mother’s fault was very momentary and the majority of the fault obviously was the driver’s”
“A driver was found 50% liable for injuries caused to a six-year old child crossing at an uncontrolled intersection. The child ran out from the front of a line of stopped vehicles into the lane in which the defendant was driving. The defendant did not have an opportunity to avoid the collision at the last moment, but the Court of Appeal said in the circumstances of traffic being stopped at the intersection near a school and a park, that the driver should have exercised more caution when approaching the intersection, that in failing to be alert to these circumstances, the driver was negligent.”
The plaintiff argues that Mr. Van Dyk would be negligent if he did not see what was there to be seen. (Harbour v. Nash, [1921] 60 D.L.R. 232; Sorenson v. Sidnick et al, [1987] B.C.D. Div. 2850-06; Chan v. Blacklock, [1981] B.C.D. Civ 3386-03 (B.C.S.C.); Andrews et al v. Hamm, [1987] B.C.D. Civ. 3388-20)
- Andrews et al v. Hamm, [1987] B.C.D. Civ. 3388-20)
“the defendant had stopped his vehicle at a stop sign at an intersection and then proceeded. The sun was low, causing momentary blindness. The defendant did not see two school children that were crossing the street in front of him and struck them. The court found that he was aware that there were high school students in the area, that the corner was a short distance from the high school, and that he should have exercised more care in proceeding as he did.”
- Petijevich et al v. Law, [1969] S.C.R. 257, 1 D.L.R.(3d) 690;
“the Defendant said that a blind spot was caused by a flashing traffic light. The court found that the presence of a blind spot required the driver to exercise more caution when approaching the intersection.”
“The accident in Williams occurred in a residential area where children were known to be present. The defendant driver was familiar with the area. He had stopped his vehicle, which was a van, in order to speak to his children. There were a number of other children in the area of various ages. The van was stationary for about three to five minutes. The defendant was aware that children played in the area and crossed the street frequently, and was aware that his vehicle had two blind spots including one in front of the vehicle. The three-year-old plaintiff had stopped in front of the van and the defendant was not aware of her presence. The defendant driver was found liable because he did not take the special precautions demanded when he was aware of the presence of children and their propensity to cross the street.”
- The test in O’Brien v. Mrakic, unreported, 13 September 1984, Vancouver Registry No. CA830176 (B.C.C.A.), reported [1984] 6 W.W.R. 667, was:
“…knowing that the actions of children are unpredictable, a driver has a duty to take reasonable precautions for the safety of a child on or near the highway.”
- Petersenn et al v.Phillips, [1983] B.C.D. Civ. 3387-01
“In this case a 12-yearold paperboy waiting at a newspaper shack to pick up his papers was struck by the pickup truck that delivered the papers. The driver was aware that typically there were a number of children between the ages of 10 and 14 playing around the newspaper shack. The delivery truck backed into its spot more quickly than it should have following an arc. The plaintiff had seen the truck and had been in a safe position but stepped in between the truck and the building. The driver was liable because he was aware of the children in the area and of the blind spot in his vision as he was backing up. The defendant was found 75% at fault in that case.”
- Morrison v. Pankratz et al, [1993] B.C.D. Civ 2882- 05 (B.C.S.C.);
“the defendant moved the vehicle backward quickly without obvious attention to the known hazards.”
DEFENDANT’S AUTHORITIES
- Fraser (Guardian ad litem of) v. Nicholls, [1993] B.C.J. No. 412 (B.C.S.C.)
“the father of a five year old boy helped the boy from the back of a car leaving him on the edge of a street while the father turned to help the younger sister out of the car. Without looking the young boy stepped into oncoming traffic. The defendant was travelling at moderate speed and maintaining a proper lookout and could not see the plaintiff.”
- Taylor v. King (1993), 82 B.C.L.R. (2d) 108
“This case “deals with the responsibility of a parent for the negligence of a child and is not responsible except for the proposition cited at p. 117, para. 33. There the Court of Appeal referred to the decision of Mr. Justice Errico in Hundal (Guardian ad litem of) v. Rupert Square Shopping Centre Ltd. (September 10, 1992), Prince Rupert Registry No. 6917 (B.C.S.C.) where Mr. Justice Errico cited from a decision McCallion v. Dodd, [[1966] N.Z.L.R. 710] at 715:
A stranger would render himself liable in negligence only if he had on a particular occasion assumed or accepted the care and charge of the child. It seems to me, however, that parents are in a somewhat different position, and at all times while present are under a legal duty to exercise reasonable care to protect their child from foreseeable dangers. I do not consider that a parent while present is ever able to shed responsibility for the child’s safety though on the facts it may appear that he was not negligent by reason of his preoccupation with other things.”
- Arnold v. Teno et al (1978), 83 D.L.R. (3d) 609 (S.C.C.)
“on the issue of the liability of a parent and an operator of an ice cream truck to which children were attracted.”
APPORTIONMENT OF LIABILITY
- Faint v. Costin, [1996] B.C.M.V.D. 1112 (B.C.S.C.)
“the mother of a two-year old child was found 15% at fault when the mother placed the
child on the edge of a road and the child was struck by an approaching vehicle. In Faint v. Costin it is apparent that the court found the driver was driving in excess of the speed
limit on a narrow road and failed to see the child when he or she should have. The mother’s fault was very momentary and the majority of the fault obviously was the driver’s.”
- Galasky v. O’Donnell, [1994] 1 S.C.R. 670
“the presence of the father does not eliminate the responsibility of Mr. Van Dyk or the swamper.”
CONCLUSION
“Mr. Aiken, was the person primarily responsible to ensure the safety of the child. I find that his actions were the significant contribution to the injuries the child suffered and apportion liability at 80% against the father and 20% against Mr. Van Dyk as a result of the negligence of the swamper.
“The swamper’s negligence was in failing to see the child in a dangerous position. The father’s negligence was in allowing the situation to occur at all.”
The “Aiken” decision was referenced in: Walkus v. Walkus, 2015 BCSC 307 (CanLII)
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