The injury claimant was 12 years old when he fell out of the back of a open bed of the truck near Chase, B.C. (Vedan v. Stevens, 2011 BCCA 386). Several children were allowed to ride in the open bed of a truck, rather than in the cab where they would have had seats and seat belts. The sides of the bed of the truck were only 22 inches high and the driver told them to sit with their backs to the window of the truck and not to move.
The driver had his windows up and air conditioning on while talking with his passenger. He finally became aware of a problem when a child stood and started pounding on the rear window. He looked back and saw the injury claimant lying in the middle of the road moving his limbs and moaning. The boy had been thrown from the back of the truck.
At the original personal injury trial on liability the trial judge found the boy 25% liable for his own injuries. The appeal of the liability decision was brought by his litigation guardian.
The injury claimant’s lawyer successfully argued that the trial judge was wrong by relying on the inference that he somehow contributed to the accident when there was no direct evidence to support that inference. As the court of Appeal went on to say in allowing the appeal starting at paragraph 13,
Needless to say, findings of fact are for the trial judge to make. Absent a palpable or overriding error, this Court cannot interfere with such findings. A conclusion based on speculation rather than evidence amounts to such an error. (See Kerr (Litigation Guardian of) v Creighton 2008 BCCA 75 at para. 56).
A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches  S.C.R. 787 at 793).
In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck – whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.
In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.
I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.
Posted by Mr. Renn A. Holness