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This week the BC Court of Appeal dealt with an appeal by a driver of a vehicle who hit a pedestrian on a dark stormy night in Richmond, BC. We provide the key portions of the judgment which show how both drivers and pedestrians must be careful to avoid injury on our BC roads. In Mawani the Court held:
The appellant appeals the order of the summary trial judge, which found him liable for an accident where the appellant struck the respondent in a large pick-up truck. The appellant was driving on the Stevenston Highway in the early morning. It was dark, foggy and wet. The respondent was walking on the shoulder with traffic. The road narrowed and the appellant, who was driving close to the shoulder, hit the respondent. The judge found the appellant liable, but concluded that responsibility for the accident was evenly divided between the parties, and apportioned fault under the Contributory Negligence Act accordingly. The appellant appeals the findings of liability and apportionment.
Held: Appeal dismissed. The judge did not err in concluding that the appellant was negligent. The judge did not arrive at this conclusion solely on the basis that he was driving too closely to the curb. Rather, it was based on the overall factual nexus. Similarly, it is clear the judge properly applied the “but-for” test for causation. Finally, the judge made no error in apportioning fault and his conclusion is entitled to deference.
Contributory Negligence and Apportionment of Fault
 The judge found that Mr. Mawani was also negligent for not taking reasonable care for his own safety by wearing dark clothing, failing to walk on the side of the highway with a sidewalk, failing to walk facing traffic and for either falling or stepping onto the highway.
 The judge set out the correct legal test for contributory negligence under s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, and the leading authority from this Court, Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 (C.A.). In that case, Mr. Justice Lambert, for the majority, explained the analysis for apportionment:
 … The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances. [Emphasis in original.]
 The judge then set out the factors found in Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993 at paras. 62-63 (reversed on other grounds (sub. nom. Aberdeen v. Zanatta) 2008 BCCA 420).
 He pointed out that Mr. Pitcairn was in breach of s. 144(1)(c) (speeding that is excessive relative to the road, traffic, visibility or weather conditions) and s. 181 (failure to exercise due caution to avoid colliding with a pedestrian who is on the highway) of the Motor Vehicle Act. He also found that Mr. Mawani was in breach of s. 179(2) (pedestrian must not leave a curb and walk into the path of a vehicle) and s. 182(2) (walking on the side of the highway without a sidewalk) of the Motor Vehicle Act.
 The standard of review for an assessment of apportionment of liability was recently set out by Mr. Justice Harris in Nerval v. Khehra, 2012 BCCA 436 at paras. 46−48:
 The standard of review of a trial judge’s apportionment of fault is clear. The general rule is that appellate courts should not interfere with apportionment of fault unless the trial judge made a palpable and overriding error: see, Ryan v. Victoria (City),  1 S.C.R. 201, 168 D.L.R. (4th) 514 at para. 57, where Major J. summarized the basic rule:
In Stein v. “Kathy K” (The Ship),  2 S.C.R. 802, at p. 808, it was held that while findings of fact with regard to the allocation of fault are not immutable, they should not be reversed by an appellate court “unless it can be established that the learned judge made some palpable and overriding error which affected his assessment of the facts.”….
 The same standard applies to inferences from findings of fact. As Smith J.A. stated in Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335, 29 B.C.L.R. (4th) 226 at paras. 12 and 19-20:
 More recently still, the Supreme Court of Canada made it clear that the principle of deference applies not only to findings of fact made by the trial judge but to the inferences drawn from those facts, as well: see Housen v. Nikolaisen,  2 S.C.R. 235, where the court said, at 254:
If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.
 We must accord the trial judge deference on his findings of fact and on the inferences that he drew from those facts, including his inferences as to the appropriate degrees of fault to be attributed to the parties.
 I have not been persuaded that the trial judge made any error in characterizing or applying the applicable legal principles or that he committed any clear error central to his perception of the evidence and the inferences that he drew from it. Accordingly, there is no basis upon which we could interfere with his apportionment of fault in this case.
 Only where there is a “gross disproportion” between the apportionment of fault as determined by the trial judge, and the apportionment the appeal court would have made, will this Court interfere. As stated in Moses v. Kim, 2009 BCCA 82, 308 D.L.R. (4th) 239 at para. 33, by D. Smith J.A:
 The standard of review of a trial judge’s apportionment of fault pursuant to the Negligence Act, R.S.B.C. 1996, c. 333 is also subject to a stringent standard. Appellate courts may not interfere with a trial judge’s apportionment of liability unless there is a “gross disproportion” between the apportionment of fault as determined by the trial judge and the apportionment the appeal court would have made: Crown West Steel Fabricators v. Capri Insurance Services Ltd., 2002 BCCA 417, 214 D.L.R. (4th) 577 at para. 27; Rimmer (Guardian ad litem of) v. Langley (Township), 2007 BCCA 350, 48 M.V.R. (5th) 1 at para. 64. In earlier authority, this threshold was described as requiring “very strong and cogent reasons” to disturb the apportionment of liability as determined by a trial judge: Stermer v. Lawson (1979), 17 B.C.L.R. 181; Swyrd v. Tulloch,  S.C.R. 199.
 The judge carefully reviewed the law and the limited evidence that was before him. In my respectful view, he did not commit any palpable or overriding error in his findings of fact. It cannot be said that there are “very strong and cogent reasons” to disturb the apportionment of liability as between Mr. Pitcairn and Mr. Mawani. I would dismiss this ground of appeal.
 Having found that the judge committed no error in his conclusions on liability in negligence or apportionment of fault, I would dismiss the appeal.