Gardiner v. MacDonald, 2016 ONSC 602
Gardiner v. MacDonald, 2016 ONSC 602 (“Gardiner”) is a recent decision of the Ontario Supreme Court dealing with the apportionment of liability in a tragic vehicle collision involving four individuals occupying an SUV and an Ottawa City public transit bus. The sole survivor from the SUV, Ben Gardiner (“Gardiner”), one of four individuals in the SUV, suffered what the court characterized as “catastrophic injuries”. Gardiner and his family commenced a court action against the estate of the driver of the SUV, Mark MacDonald (“MacDonald”), the City of Ottawa, the driver of the Ottawa City bus, Raymond Richer (“Richer”) and those who had supplied alcohol to MacDonald prior to the accident.
Early in the morning of January 23, 2008, Richer was driving his Ottawa City bus north on Riverside Drive. Richer drove into the intersection at Heron Rd. on a green light. MacDonald was driving west on Heron Rd. at the same time. He continued into the intersection with Riverside Drive on a red light. The bus driven by Richer t-boned MacDonald’s SUV. The occupants of the SUV suffered the most damage with three dead and the fourth very seriously injured.
At the time of the accident it was dark, the roads were covered by slush from melting snow, but the intersection was well lit. No charges were laid against Richer and alcohol consumed by MacDonald earlier in the evening was determined to be a causal factor in the accident.
By the time of trial, the only issue remaining between the parties was the degree of liability or fault for the accident, if any, on the part of the City of Ottawa and Richer. The court identified three matters it had to consider in resolving this final issue:
- The duty of care owed by Richer, a professional driver for the City of Ottawa who was driving a public transit bus at the time of the accident;
- The standard of care Richer, a professional driver, owed to MacDonald and MacDonald’s passengers;
- Whether a causal link existed between Richer’s breach, if any, of the standard of care Richer owed and the injuries sustained by Gardiner.
Duty of Care Owed by Richer
The court observed, as a long standing legal principle, that “a driver entering an intersection has a duty to act so as to avoid a collision, if reasonable care will prevent it.” Other cases relied on by the court expand on this principle and establish that a driver approaching an intersection with a green light does not have the right to proceed into the intersection without exercising proper care to observe what all other users of the road are doing. Put another way, a driver having the statutory right of way at an intersection will not be relieved of some degree of responsibility for an accident if the driver enters the intersection with disregard as to what other drivers approaching the same intersection may or may not do.
The court concluded that on any analysis of the facts, Richer was bound by a duty of care to exercise proper caution upon approaching the intersection and to surrender his statutory right of way to MacDonald if by such action the accident might reasonably have been avoided.
Standard of Care Owed by Richer
The court held that the driver who has the statutory right of way at an intersection (e.g., Richer who in this case proceeded into the intersection on a green light) is required in the exercise of this right, to do so as a reasonable and skillful driver would do under similar or like circumstances. The court stated that the driver with the right of way “will be fixed with some responsibility if he or she had a reasonable opportunity to avoid the collision but failed to do so.” The court went on to add, however, that a professional driver such as Richer could be held to a higher standard of care than the general driving public if at the particular time in question he was discharging his professional driving duties. Finally, the court observed that, although the standard of care required of a professional driver might be somewhat higher than that of the general driving public, it is still not a standard of perfection.
On the evidence, the court, while acknowledging that a higher standard of care may be required of a professional driver, concluded it was not necessary in this specific case to determine and apply a higher standard. Richer’s evidence seriously undermined his credibility by the inconsistencies amongst and between his statements made to police, his discovery evidence and his cross examination at trial. Richer also repeatedly attempted to deny or discredit clear evidence of negligence on his part on the night of the accident. Richer objected to and sought to discredit GPS records which clearly indicated he was significantly exceeding the speed limit that morning and that he did so under inclement road and driving conditions. The court found on all of the evidence that Richer did breach the standard of care of the reasonable driver under similar or like circumstances. There was no need to inquire or determine whether he breached some higher standard of care.
Did Richer’s Breach, if any, Cause Plaintiff’s Injury
The court stated the test for causation as follows: “In order to establish causation….a plaintiff must show that the defendant’ negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence.”
The court found that Richer had not only been exceeding the speed limit in his approach to the intersection of the accident, but that he had failed to take into consideration sloppy road conditions that should have led him to drive even more cautiously. Further, the court found that Richer was not paying proper attention to what the MacDonald vehicle was doing when Richer entered the intersection. He consequently compromised his opportunity to respond defensively and to possibly avoid the accident.
It was the court’s finding that had Richer been driving prudently and with the care of a reasonable driver under like circumstances, it is unlikely he would have arrived at the intersection where the accident occurred at the same time as MacDonald ran the red light. The court further found that Richer failed to exercise proper care upon entering the intersection where the accident took place. The failure to exercise proper care effectively foreclosed on Richer’s ability to react appropriately and defensively to the uncertainty that existed as to MacDonald’s ability or intention to stop. In essence the court found that, but for Richer’s negligence, the accident might well have been avoided. While all parties acknowledged that MacDonald was primarily responsible for the accident, Richer still had an opportunity to avoid the accident if he had been exercising proper care in his own driving. The court apportioned liability for the damages the plaintiffs suffered 80% to MacDonald and 20% to the City of Ottawa on the basis it was vicariously liable for the negligence of its employee.
The tragic circumstances of this case provide clear lessons for all municipal governments. On the most basic level, and at first blush, the facts of this case might be thought to point the finger of responsibility squarely, fully and exclusively at MacDonald. He had consumed enough alcohol to impair his judgment and he ran a red light at the intersection of Herod and Riverside the night of the accident. Richer had the statutory right of way at the intersection. These facts, in and of themselves, might seem sufficient on a cursory analysis, to settle any and all questions of responsibility once and for all. At law, however, the court had to address the question of whether or not Richer, an Ottawa City employee, had any opportunity to avoid the accident.
After reviewing all of the evidence, the court determined Richer did have the opportunity to avoid the accident, but that he squandered it as a result of his own negligence. He had the statutory right of way at the intersection, but he was driving at an excessive speed and he did not exhibit the standard of care of a reasonable driver in approaching the intersection, to observe and respond to what the MacDonald vehicle was doing. In the result the court found that, but for Richer’s negligence, the accident, even though primarily put in motion by the actions of MacDonald, might still have been avoided. It is on this basis that the court apportioned 20% of the liability for the accident to Richer and the City of Ottawa.
On another level, this case squarely focuses the attention of all municipal governments on the need to ensure proper policies, manuals and training programs are in place to inform and educate employees about the duty of care that rests on them to discharge their duties professionally in order to avoid negligence claims. Equally importantly, the policies, manuals and training programs need to be routinely monitored, evaluated, amended where prudent, and consistently enforced by the municipality. A solicitor knowledgeable and experienced in municipal law can be of great assistance in dealing with these matters.