BCCA dismisses appeal / Liability Finding / Contributory Negligence

This recent BC Court of Appeal decision in Chand v. Southern Railway of British Columbia Limited, 2018 BCCA 41 (CanLII), concerns a finding from the lower court that the driver of a van (Mr. Chand) who collided with a railway was not held contributorily negligent even though he plead guilty to a regulatory fine and had no recollection of the incident. The appeal is on the grounds that the judge erred in her assessment of a witness’s testimony and erred in her assessment of Mr. Chand’s duty of care for his own safety. The lower court decision found that the railway company was 100% at fault for the collision.

The railway company appealed the lower court decision.  However, the BCCA dismissed this appeal.

This is an interesting case and I will quote from the case directly:

Following a nine-day liability only trial, the judge found that neither the bells nor signal lights on the south side of the Scott Road crossing were functioning at the time of the collision. The judge found that the train’s conductor, Mr. Steve Cohen, was responsible for keeping a lookout on the left side of the train, and was negligent because he failed to notice that the signal lights had not been flashing for at least 20 seconds before the train entered the crossing. In these circumstances Mr. Cohen had a duty to stop the train and manually guide it through the crossing.

[3]           Mr. Chand was seriously injured in the accident and had no memory of the events. He pleaded guilty to a charge under s. 144 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, for driving without due care and attention, for which he received a $1,500 fine.

[4]           At trial, the Railway pleaded contributory negligence on the part of Mr. Chand, contending that he was required to approach the railway crossing with caution and had failed to do so. The Railway argued Mr. Chand’s guilty plea constituted proof that he was driving erratically. The Railway also submitted Mr. Chand had been contributorily negligent because he failed to wear a seatbelt.

[5]           The judge concluded the Railway had not established that Mr. Chand was not wearing a seatbelt. With respect to proof that he was driving without due care and attention, the judge said:

[87]      I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]      Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.

[6]           On appeal, the Railway challenges only the finding that Mr. Chand was not contributorily negligent. The Railway contends the judge made two errors in arriving at that conclusion:

  •  First, by misapprehending the evidence of a key witness, Mr. Harkness, on the issue of how Mr. Chand was driving prior to the collision; and
  • Second, by failing to find that Mr. Chand had a duty of care that required him to do more than wear a seatbelt and refrain from driving erratically.

The lower Court made the following finding “Mr. Chand was not speeding or otherwise driving erratically when entering the crossing”. And after reviewing the evidence, the BCCA did not agree that the trial judge erred or misapprehended the witness’s testimony.

On the second basis of the appeal, defence states that the trial judge assessed the duty of care too narrowly.  Section 185 of the Motor Vehicle Act is relevant and for his own safety, Mr. Chand should have looked, listened and slowed down when approaching the railway crossing.

The Court of Appeal did not agree.  It reviewed the evidence and stated that it was dark out, it was a road with heavy traffic, and the speed limit was not reduced near the crossing.  There was signage giving notice of a railway crossing but no signs to notify drivers to prepare to stop.  Any driver would expect the lights to flash and bells to alert drivers to an oncoming railway.  That did not occur.


“In my view, it is clear from the judge’s reasons read in the context of the record why she found Mr. Chand had not failed to take reasonable care for his own safety in the particular circumstances of the case before her. Those circumstances included Mr. Chand driving at the speed limit, not erratically, the absence of flashing lights and bells at the crossing, and the suddenness of the train’s appearance. In my opinion, it is implicit in the reasons of the judge that she found there was nothing Mr. Chand could have done to avoid or minimize the effects of the accident. I would accordingly dismiss the appeal.”

See Disclaimer in About Page.