If a pedestrian is hit by a car, but the driver flees the scene despite the significant injuries he has caused – will the civil court punish him? What if the driver has a suspended license and history of disregarding suspensions?
In the recent case of Howell v. Machi (2017 BCSC 1806), the 22-year-old plaintiff Veronica Howell was injured at about 6:15 pm on January 20, 2014 when she jaywalked across East 1st Avenue in Vancouver. She was crossing the street on the block west of the intersection with Commercial Drive – when the eastbound and westbound cars were stopped for a red light at the intersection. She had navigated the first two lanes of stopped eastbound traffic, but as she started to cross the clear westbound lanes she was struck by a pickup truck which was travelling the wrong way in the westbound lanes. She was violently hit by the pickup truck as it was using the empty oncoming lanes to pass the stopped cars ahead of him to ultimately cross a painted meridian and reach the designated left turning lane up at the intersection.
After striking Ms. Howell, the pickup did not stop – but drove up to the left turn lane. Instead of turning left, he turned right in front of the stopped two lanes of eastbound traffic. According to the witnesses, he pulled over for a moment, then sped off. Ms. Howell suffered serious and life-altering injuries including a skull fracture, and a complicated mild traumatic brain injury – leaving her with chronic pain, cognitive issues and a dramatically changed life. The impact was significant and eye witnesses presumed she was killed by the collision.
After hearing the evidence, Madam Justice MacNaughton accepted that Leon Machi was the owner and driver of the pickup that struck Ms. Howell, and that he was driving with a suspended license at the time of the incident. The evidence linking him and his pickup included smears and fibers found on the front end and hood of the pickup when it was seized, and a forensic analysis that matched the fibers to the jacket worn by Ms. Howell when she was hit. One issue at trial was whether Ms. Howell should be permitted to amend her claim to include punitive damages to “punish” Mr. Machi for his conduct. She was permitted on the basis that while it could have been done earlier, the amendment would not impact the trial or evidence – and there was no prejudice to Mr. Machi.
In making a rare decision to award punitive damages against the defendant, Madam Justice MacNaughton acknowledged that these damages are “not compensatory, but intended to address the purposes of retribution, deterrence and denunciation. They are limited to misconduct which markedly departs from decent behavior”. Punitive damages are not payable by ICBC or other insurance policies – but are paid by the individual defendant. Ms. Howell’s counsel were unable to direct the court to a case where punitive damages had been awarded against a defendant in a hit and run – making this opportunity to order punitive damages in a novel circumstance. In awarding $100,000.00 in punitive damages against Mr. Machi, Madam Justice MacNaughton found the following:
[519] I have concluded that Mr. Machi’s actions are worthy of denunciation and retribution beyond the compensatory awards I have made in favour of Ms. Howell. In particular, although I concluded that his failure to stop after striking Ms. Howell did not amount to further negligence on his part, it is relevant to the punitive damages analysis. I have also taken into account the fact Mr. Machi has repeatedly shown complete disregard for the suspensions of his driver’s licence.
[520] In all the circumstances, I award Ms. Howell punitive damages of $100,000 against Mr. Machi.
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