Nayar v. Doe (2008) BCSC 1320 (BCSCJ)

Nayar v. Doe (2008) BCSC 1320 (BCSCJ)

In Nayar, the court followed the precedent established in Guiliani v. Saville to find that a plaintiff who put his hands on the hood of the defendant’s vehicle was not contributory negligent when the defendant accelerated and hit the plaintiff.

The facts as accepted by the court were as follows.  The plaintiff was a gas station attendant who followed the defendant as she was slowly driving away without paying for gas.   The plaintiff was under the impression that the defendant simply forgot to pay.  The plaintiff put himself in front of the defendant’s vehicle with his palms out.  The defendant began revving the engine of her vehicle and inching it towards the plaintiff.  The plaintiff then proceeded to place his hands on the hood of the defendant’s vehicle.  The defendant accelerated, hitting the plaintiff in knee.

The court acknowledged that the plaintiff was reckless in placing himself in front of the defendant’s vehicle and putting his hands on the hood.   However, the court found that the defendant was entirely to blame for the incident

At paragraph 33 the court found that:

[The defendant] was there to be seen, as was the plaintiff. It was not reasonably foreseeable   that [the defendant] would drive into [the plaintiff].

It follows that the plaintiff may not be found contributory negligent applies even if the plaintiff puts his hands on the defendant’s vehicle and even if the defendant acts in a matter that indicates that she will accelerate.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

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