A Greater Victoria woman who was critically injured when she was struck by a Jeep Cherokee on Central Saanich Road four years ago has been awarded $5.5 million by the B.C. Supreme Court for her future care.
Tracey Ann Ward suffered a catastrophic brain injury in the Aug. 27, 2018, crash that killed her sister, massage therapist Kim Ward. The two women had dinner with their mother, Ellen, that evening, then went out to walk their dogs.
Anthony Thomas was behind the wheel of the brand new Jeep on Central Saanich Road when he lost consciousness, crossed the centre line and struck the sisters. After a criminal trial, Thomas was found guilty of impaired driving causing death and impaired driving causing bodily harm and is waiting to be sentenced.
Tracey’s mother, Ellen Ward, 81, launched the civil suit in February against Thomas, the Harris Victoria car dealership and Aggatha Siah, a woman who had signed a purchase agreement to buy the Jeep.
Ward said Thursday she was happy with the judge’s decision. “It will help for looking after Tracey that’s for sure,” she said.
“But it still doesn’t change anything. Tracey’s still in the shape she’s in and Kim is gone. But I’m so happy to have the money to look after Tracey.”
Tracey, whose left side is paralyzed, was in the intensive care unit at Victoria General Hospital for one month after the crash and spent almost a year in hospital.
She now lives in a long-term care facility in Sidney. At the time of the crash, Ward was 48 and worked as a self-employed bookkeeper.
The issue in the civil case was which of the defendants was liable. Justice Brenda Brown found Thomas was negligent. She also found that the Harris Victoria car dealership, as owner of the vehicle, was vicariously liable and responsible for paying the $5.5 million. Siah was found to be not liable.
“It’s a very tragic story but it’s a good example of how car dealerships need to be more careful about how they are selling cars,” said Darren Williams, the lawyer representing the Wards.
Court heard that Siah went to the dealership on Aug. 18, 2018 and signed a purchase agreement to buy the 2019 Jeep. Harris Victoria applied to a lending company for financing. The financing was not approved that day, but an employee took the plates off Siah’s car and put them on the Jeep.
Siah was told she could take the Jeep home until financing was approved, then she could return to the dealership to finalize the document.
Harris Victoria continued to communicate with the lending company over the next nine days. At the end of the ninth day, Thomas was handed the keys and asked to run an errand.
The judge found that Siah did not own the Jeep because she didn’t have financing. The young First Nations woman was a weak, vulnerable party in the purchase negotiations and therefore at a disadvantage in the contracting process, said the judge. She found the transaction was “unconscionable” — which in legal terms means unfair — and thus not binding on Siah.
Harris Victoria argued that it did not consent to Thomas driving the vehicle.
But Brown said one of the ways Harris Victoria generates new business is through other people seeing and driving new vehicles purchased by customers.
“It is also important to Harris to have the customer leave the lot in the car they are interested in purchasing while their financing is pending,” she wrote.
“If the customer cannot complete the transaction fully on that day, part of Harris’s process is to make sure that the customer can go home in the car until their financing is approved. The purchaser or proposed purchaser is most likely to purchase a car if they leave the lot with the car the first time they come in.”
The judge said she was satisfied that the dealership expected other family members and friends to drive the Jeep.
And the fact Thomas may have been impaired at the time didn’t change that consent, because the dealership didn’t learn about that until after the fact, said Williams.
“You can’t retrospectively change your consent,” he said.
ldickson@timescolonist.com
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