Fraser v. Vancouver (City), 2016 BCSC 1074 (CanLII)
Mr. Ranald Fraser sought damages in relation to a fall he claimed occurred on May 26, 2013 between 6:30 and 7:00 pm while walking with his mountain bike in the 1600 block of West 4th Avenue in the City of Vancouver. The accident site was located within sight of Mr. Fraser’s place of work where he was the owner-operator. According to Mr. Fraser, he was walking his bicycle with his left hand going west along West 4th Avenue, crossed Fir Street and sometime afterwards his bicycle went over the southern edge, to his left, of the sidewalk into a construction area. Mr. Fraser claimed the drop-off between the sidewalk and construction area was about four inches which caused him to fall on his right thumb in an effort to avoid falling onto his bicycle. Mr. Fraser’s right thumb required two surgical procedures to repair.
Mr. Fraser stated there were no cones or warning signs along the stretch of sidewalk to warn of the construction site. Mr. Fraser stated he was looking directly into the sun before he fell.
The judge dismissed the Plaintiff’s (Mr. Fraser) claim against the City of Vancouver stating that he had failed to establish the accident occurred as he alleged on a balance of probabilities.
Plaintiff’s Human Factors Position
The Plaintiff did not provide any human factors position.
Mr. Fraser denied that the crosswalk that begins outside of his place of work led directly to the accident site, which the judge found to be inexplicable.
Defendant’s Human Factors Position
Dr. Matthew Yanko presented human factors evidence. Dr. Yanko analyzed the visibility of the construction area hazard and that of the construction equipment which included several orange and white barricades and a rolled-up flexible orange fence. Dr. Yanko estimated the amount of time the walk to the accident site would have taken Mr. Fraser and cited research that found that pedestrians walking on paved sidewalks spend 65% of the time focusing on areas far ahead of them and 35% on areas directly in front of them. Dr. Yanko determined the location of the sun at the time of the accident and stated that the angle would have unlikely to have caused disability glare. Dr. Yanko noted various factors that contributed to a high contrast between the sidewalk and the accident site. Given the amount of time that the accident site would have been within his useful field of view, Dr. Yanko opined that the construction area and equipment within it were sufficiently visible to the Plaintiff.
The judge relied to some extent on Dr. Yanko’s expert opinion regarding the visibility of the construction area.
Overall, the judge had many concerns about Mr. Fraser’s evidence. Mr. Fraser’s evidence included contradictory information regarding what was reported to his family doctor, photo evidence not matching construction dates, and testimony of bike riding that did not match with expected timeframes.
The judge found that the evidence provided by the foreman for the concrete construction crew at the accident site to be credible regarding the use of delineators to mark the hazards. The judge found that the evidence from the foreman completely undermined Mr. Fraser’s account of the accident. The foreman was able to provide crew report documentation to specify the safety equipment that was in place and in the judge’s opinion, the foreman was able to provide “entirely reasonable” explanations for any discrepancies.