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What happens when a Driver and The Province Are Both Negligent?
The BC Court of Appeal agreed that the failure to provide adequate lighting in a crosswalk materially contributed to the accident in the 2014 decision of Meghji v. Lee.<
Proving negligence against the Province is always a hard fought battle. In the recent court of Appeal decision of Meghji v. Lee, the Plaintiff suffered serious injury when she was struck as a pedestrian by the Defendant Lee while in a crosswalk at an intersection in Victoria, BC. The Plaintiff claimed her injuries arose as a result of both the negligence of the driver who struck her, but also due to the poorly lit crosswalk in which she was walking at the time of the accident.
Bad Lighting Is Dangerous
A major issue at the trial concerned the negligence claim against the Province of British Columbia for failure to provide adequate lighting in the crosswalk. Claims in negligence against the Crown necessarily involve an inquiry whether there has been a breach of the duty of care to the Plaintiff, and whether that breach caused or contributed to the accident. Put simply in this case, did the Ministry of Transportation and Highways (MoTH) provide a reasonable level of lighting where the accident occurred, and if not, did that lack of lighting contribute to the collision?
When is The Province At Fault?
It is well established law that the Province owes a duty of care to the public and specifically in this case, the users of their highways. Decisions made by the Crown can be protected from claims of negligence if they are policy decisions based on budgetary concerns or considerations of public policy. However, the implementation of a policy decision is not exempt from a duty of care and is characterized in law as an operational decision.
In Meghji, the intersection in question was modified in 1983 which created gaps in the lighting at the crosswalk where the Plaintiff was struck. Independent witnesses testified that the intersection was dark and unsafe, and dangerous. One of the Plaintiff’s experts, Mr. Chadwick, testified that this reconfiguration created “zones of darkness” at the intersection which were, in his opinion, significant and deviated from conventional lighting design at the time. The Province had decided not to reposition the lights (termed “luminaires”) at that time as part of an operational decision implementing their policy of lighting. At trial, the court found that the Province was not immune from liability from this operational decision and concluded that they had failed to provide a reasonable level of lighting at the location where the accident occurred.
The Court of Appeal summarized and quoted the findings of the trial judge in so far as the Crown’s duty of care as follows:
 After considering all of the evidence, the trial judge concluded that the Province had a duty to provide a reasonable level of lighting for the area and that standard included a 3:1 uniformity ratio. He found the Province had breached the requisite standard of care by failing to ensure that the 1983 reconfiguration of the intersection was effected in a manner that provided a reasonable level of lighting for the crosswalk in the southwest quadrant:
 … It seems to me that, short of seeking perfection in intersection lighting, there is a reasonable level of lighting that could and should be achieved, and that includes lighting within the accepted uniformity ratio of 3:1. Put another way, in a maritime climate where pedestrians can be expected to be walking in full dark and in the rain, it is reasonable to avoid the design or construction of overhead lighting that falls below accepted standards including uniformity ratio.
 I conclude that MoTH breached the duty of care it owed to Ms. Meghji when, in 1983, it left the luminaires at the northwest and southeast corners of the widened intersection of Cloverdale Avenue and Blanshard Street. MoTH’s failure to consider the effect of moving the luminaire in the north-west corner farther from the south-west corner and crosswalk area on the light available to the south crosswalk and on the uniformity ratio in that portion of the intersection, or its failure to consider whether there were reasonably achievable ways to compensate for the reduction in available light, breached the duty of care MoTH owed to Ms. Meghji and contributed to her injury.
The Trial Judge ultimately found MoTH to be 10% liable for the collision.
The Crown appealed the apportionment of liability claiming that the lighting at the intersection did not fall below accepted standards, and that even if that was the case, Mr. Lee’s negligent driving was the sole cause of the accident.
In their reasons, the three panelled appeal judiciary reviewed the law on negligence claims against the Province and the Judge’s findings at trial. They agreed that the Province had failed in the 1983 reconfiguration of the intersection to properly implement policy respecting the luminaries and that the trial judge had not erred in it’s application of the law. With regards to causation, the Court of Appeal also agreed the court had sufficient evidence to determine the accident occurred partially as a result of poor lighting at the intersection. While there may have been limited evidence to support the contribution this actually made to the accident, that was reflected in the apportionment of 10% liability to the Crown. The appeal was dismissed.
The Court of Appeal Agrees With The Trial Judge
Madam Justice D. Smith and Mr. Justice Willcock speaking for the Court, gave the following reasons in their analysis:
 As previously noted, it is common ground that following the 1983 Cloverdale reconfiguration there was a corresponding reduction in the level of illumination in the southwest quadrant of the intersection. That this area was poorly lit and hazardous at the time of the accident was confirmed by the evidence of Sgt. Wright and the lay witnesses, including Ms. Meghji, all of whom variously described the southwest corner as “dark”, “very dark”, and “a virtual dead zone of light”. Several of the expert witnesses also provided opinions that the poor lighting conditions in the southwest quadrant contributed to Mr. Lee’s inability to see Ms. Meghji in a timely way.……
 In sum, it would seem that there were multiple factors that influenced the trial judge’s finding that the Province had breached the standard of care of reasonableness in its lighting standard for the intersection. This is evident in his comments in para. 108 of his reasons (reproduced in para. 38 above), that the Province’s “failure to consider whether there were reasonably achievable ways to compensate for the reduction in available light… breached the duty of care MoTH owed to Ms. Meghji and contributed to her injury”. His comments at para. 107 indicate that he did not base his finding that the Province breached the standard of care solely on the failure to maintain a uniformity ratio lower than 3:1. Rather, he considered that a uniformity ratio higher than 3:1, in combination with the low level of light in the southwest quadrant and the fact that the intersection was located in an area where rainy conditions and the accompanying glare are to be expected, fell below the standard of care….
 We are unable to find palpable and overriding error in the judge’s determination that the Province breached the standard of care of reasonableness. In our view, there was an evidentiary basis upon which he could find that diminished lighting conditions in the southwest corner of the intersection, at the time of the accident, did not meet a reasonable standard of care for the safety of the users of the highway.
 We agree with the Province that the trial judge’s reasons on this issue at para. 108 (reproduced at para. 38 above) are limited. However, we are unable to conclude that the evidentiary basis was insufficient to support the inference drawn by the trial judge that, applying the “but for” test in a robust common sense fashion, the dark zones at the southwest corner contributed to Mr. Lee’s inability to see Ms. Meghji. It was open to the trial judge to accept all, part, or none of a witness’ evidence. The evidence of the lay witnesses, Sgt. Wright, and several of the expert witnesses provided an evidentiary basis for the judge’s finding of a linkage between the breach of the standard of care and the accident, and carried more weight than Dr. Lewin’s rebuttal evidence. At the end of the day, it was for the trier of fact to weigh the evidence and make that determination.
 In these circumstances, giving a robust application to the “but for” test of causation and applying a deferential standard of review to the factual findings by the trial judge, we are unable to find palpable and overriding error in regard to the judge’s finding of causation. There was, in our view, an evidentiary basis for inferring the necessary linkage between the diminished lighting conditions at the southwest corner of the intersection and the failure of Mr. Lee to see Ms. Meghji in a timely manner. The limited extent to which the trial judge found those lighting conditions to have been a contributing cause of the accident was reflected in his 10 percent apportionment of fault to the Province, in contrast with his 90 percent apportionment of fault to Mr. Lee.
 In the result, we find no error in the judge’s apportionment of liability.
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