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.

Guiliani v. Saville (1998) B.C.J. No. 273 (BCCA), (1999)

In Guiliani the British Columbia Court of Appeal found that the plaintiff standing in the middle of the road, in the path of the defendant’s approaching vehicle was not contributory negligent when the defendant’s vehicle collided with the plaintiff.

The plaintiff Guiliani and his friends were driving past the defendant when the defendant “gave them the finger”.  An invitation to fight ensued and the defendant escaped by getting into his vehicle and speeding off.  The plaintiff proceeded to stand in the roadway waiting for the defendant to return.  The court accepted that the plaintiff was standing in the roadway in order to identify the defendant when he returns and to take down the defendant’s license plate number.

When the defendant finally returned, he was approaching the plaintiff at an accelerated speed.  The plaintiff continued to stand in the roadway despite having ample opportunity to get out of the way of the defendant’s vehicle.  The trial judge accepted the evidence that the plaintiff did not move until the car was virtually upon him and it was too late to get out of the way.

The trial judge found that the plaintiff was 30% responsible for his injuries.  The court of appeal reversed the finding of contributory negligence. At paragraph 10, it held that the trial judge reached her conclusion:

 “without regard for the flagrant and almost unforeseeable   conduct of the defendants and without regard for the fact that the defendant had ample room to steer clear of the plaintiff.”

The court rejected the submission that having regard to the previous altercation between the parties the plaintiff should have known that standing in the path of the defendant’s vehicle was particularly dangerous.

At paragraph 11, the court stated that:

the plaintiff could see the defendant coming but it was not reasonably foreseeable   that the defendant, who could see him equally well, would continue to drive towards him at an accelerated speed.

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

Carr v. Anderson, [2000] O.J. No. 2515 (Sup. Ct. of J.)

Carr is an example of a pedestrian-motor vehicle collision where the defendant driver hit the plaintiff pedestrian in attempting to escape from a dangerous situation created by the pedestrian.  Carr stands for the proposition that even in extreme circumstances the defendant driver owes the plaintiff pedestrian a duty to avoid a collision.

In Carr, the plaintiff was operating his vehicle directly in front of the defendant’s vehicle.  Suddenly, the plaintiff stopped his vehicle and got out.[1]  The plaintiff approached the defendant’s vehicle with a six-inch combat knife.  The plaintiff punctured the front left wheel of the defendant’s vehicle and proceeded (knife-in-hand) towards the defendant’s driver door. The defendant escaped the situation by sharply accelerating around the plaintiff’s parked vehicle and away from the plaintiff.   In the process of driving around the plaintiff’s vehicle, the defendant’s vehicle made contact with the plaintiff, causing a severe tibia-fibula fracture.

At paragraph 22, the court found that the defendant had not discharged the onus to prove that the plaintiff’s damages were sustained without any negligence on the defendant’s part.

The court accepted that the plaintiff’s conduct put the defendant in a justifiably perceived situation of emergency.   However, the court concluded that the defendant did not need to accelerate sharply from a stopped position and a lower rate of speed would have permitted the plaintiff to avoid contact.

The court found the defendant negligent and the plaintiff contributory negligent.   In accordance with Section 4 of the Negligence Act the court apportioned the liability 50/50.


[1] In court, the plaintiff claimed that he had been rear-ended by the defendant.  However, the judge did not accept this evidence.

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