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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘Motor Vehicle Act Emergency Vehicle Driving Regulation’

Negligent RCMP “Bait Car” Pursuit Results in nearly $1 million in Damages

April 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, resulting in a nearly $1 million judgement following the RCMP’s negligent response to a ‘bait car’ theft.

In today’s case (Watkins v. Dormuth) the Defendant RCMP officer was responding to a bait car activation call.  He proceeded North in the southbound lanes to get around traffic.  At the same time the Plaintiff was making a left hand turn at an intersection.  A t-bone collision occurred which resulted in serious injuries whith profound consequences and were expected to have a permanent disabling effect on the Plaintiff.  Damages of close to $1 million were assessed.

The RCMP argued the Plaintiff was to blame for the collision.  Mr. Justice Blok disagreed finding the RCMP were entirely at fault.  In reaching this conclusion the Court provided the following reasons:

[78]         The provisions show there are certain prerequisites that must be met before a police officer may exercise the privileges set out in s. 122 of the Motor Vehicle Act.  In particular, the police officer must have reasonable grounds to believe that the risk of harm to members of the public from the exercise of those privileges is less than the risk of harm to the public should those privileges not be exercised.  Even where the prerequisites are met, the driving privileges afforded by the Motor Vehicle Act must be exercised with due regard for safety, having regard to certain factors.

[79]         I conclude that Cst. Dormuth did not have reasonable grounds to believe that the risk of harm to the public from exercising emergency vehicle privileges was less than the risk to the public should he not exercise those privileges.  All he knew was that there had been a bait car activation.  An activation did not mean that there was a risk of harm to the public because an activation signal could be caused by the mere opening of the bait car door or trunk.  It did not necessarily mean the car was being driven, let alone driven in a manner dangerous to the public.

[80]         This conclusion is consistent with the detachment’s bait car policy, which provides that the normal response level to a bait car activation is Code 2, that is, by proceeding immediately but without using lights or siren.  In other words, the detachment’s own policy recognizes that a bait car activation is a non-emergency event.

[81]         The defendants assert that Cst. Dormuth was not negligent in responding at a Code 3 level because that is how he had been trained, erroneous as it was.  However, I do not see that this absolves the defendants of liability since it is plain that the training given to Cst. Dormuth was faulty….

[95]         Emergency vehicles do not have free rein in exercising the driving privileges accorded by s. 122 of the Motor Vehicle Act.  They may only do so within the limits set by the Emergency Driving Regulation and they are constrained by the duty to drive with due regard for safety: Frers, at para. 89.  I conclude that Cst. Dormuth had no basis to exercise any emergency vehicle driving privileges, and I conclude that in exercising those privileges he did not drive with due regard for safety in the circumstances of this case.

[96]         For these reasons I conclude that the responsibility for this accident rests entirely with the defendants.

 


More on Collisions Involving Emergency Vehicles

July 31st, 2013

 

UPDATE June 5, 2014 – This decision was overturned on appeal with the Defendant being found fully at fault

____________

As previously discussed, when an emergency vehicle is responding to a call and is involved in a collision fault does not automatically rest with the other vehicle.   All of the circumstances surrounding the collision must be examined.  Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing this area of law.

In last week’s case (Maddex . Sigouin) the Defendant was travelling a few car lengths behind the Plaintiff police officer.  The Plaintiff detected a speeding oncoming vehicle, activated his lights, and attempted a U-Turn at the approaching intersection.   To do so he had to cut across from the left hand lane in which he was travelling, through the designated left had turn lane and into his turn.  The Defendant did not have time to react safely, hit his brakes and also turned into the left hand turn lane in the hopes of avoiding contact.  Ultimately the Court found both motorists equally responsible for the crash.  In reaching this decision Mr. Justice Williams provided the following reasons:

[43]         It is my conclusion that Mr. Sigouin was not paying sufficient attention as he was driving and that he was positioned too close behind the police car, taking into account the speed and the limited maneuverability of his vehicle. By the time he recognized the necessity to react to the police car slowing in his lane, it was too late to safely slow down behind that vehicle. As a result, he was forced into an emergency maneuver which entailed passing the police vehicle. He did not believe it was safe to pass on the right and so he elected to pass on the left which necessitated him moving into the left-turn bay to get past the police car. It is clear that he did not see the flashing emergency lights and react to them in a timely and responsive way. My conclusion that he was not paying sufficient attention is buttressed by the fact that the vehicle he evidently failed to notice was a prominently marked police car displaying flashing lights. It is clear from the evidence that Mr. Sigouin knew that this was a police car because he testified that he made that observation a short time earlier and that he took measures to situate himself so that he was travelling behind that car.

[44]         As for the plaintiff, he initiated a turn, essentially a U-turn, from the number 2 lane. He satisfied himself that could be done safely with respect to the oncoming traffic. However, he appears not to have appreciated that his maneuver could not be safely executed because there was another vehicle following fairly close behind him.

[45]         Further, he initiated his maneuver not from the left-turn bay, but rather from the number 2 lane, a position which made it less apparent that he was going to turn left.

[46]         I accept that the plaintiff was displaying his emergency lights and it would be apparent to any other motorist that he was engaged in some sort of official emergent duties on the roadway. As I indicated earlier, other drivers are expected to yield to such vehicles.

[47]         However, it is abundantly clear from the legislation that displaying emergency equipment, whether lights or lights and siren, does not afford a shield of invincibility or absolute right. Even when an emergency vehicle has that equipment fully deployed, there is an overriding obligation on the operator of the emergency vehicle to ensure that any driving activity be conducted in a safe fashion vis-à-vis other persons on the roadway.

[48]         In the present case, that required the plaintiff to be sure that his U-turn could be executed in safety. He ought to have been aware of the fact that the defendant’s vehicle was following him, fairly close behind; he ought to have checked behind him.

[49]         It is evident that he did not do so.

[50]         In the circumstances, I find that both of the drivers, the plaintiff and the defendant Mr. Sigouin, were negligent in this collision.

[51]         As for allocation of fault, I find each to be similarly responsible, and I apportion liability equally, that is, 50 percent for each of them.


Police Officer Not Negligent For Crash While Running Red Light in Course of Duties

June 7th, 2013

While operators of emergency don’t enjoy complete immunity when running a red light in the course of their duties, they do enjoy a statutory right of way to disobey traffic controls in appropriate circumstances.  Reasons for judgment were released recently by the BC Supreme Court, New Westminster Registry, clearing a police officer from fault following such a collision.

In the recent case (Singh v. British Columbia (Public Safety)) the Plaintiff entered an intersection on a green light.  At the same time the Defendant officer, who was responding to a call of a man with a knife threatening a child, ran a red light while responding to the call.  A crash occurred and the Plaintiff sued for damages.  The claim was ultimately dismissed with the Court finding that the Plaintiff was negligent and the officer properly entered the intersection within the scope of her duties.  In exculpating the officer of fault Madam Justice Adair provided the following reasons:

[68]         Constable Parrish testified that her siren was activated when she approached and was at the intersection of Scott Road and 96th Avenue.  She explained when and how she activated her siren.  She explained how the siren is activated by pressing a button, and that, once the siren button is pressed and the siren is turned on, it remains on until the button is pressed again.  She explained that she reactivated the siren after speaking with her dispatcher, and that she had it activated as she travelled down 96th Avenue towards the intersection with Scott Road.  Her explanations were logical, appropriately detailed and consistent with the circumstances in which Constable Parrish was operating.

[69]         I find that when Constable Parrish arrived at the intersection of Scott Road and 96th Avenue, both the emergency lights and the siren on her vehicle were activated, and they remained activated when she proceeded into the intersection.  I accept Constable Parrish’s evidence in this regard.  Her evidence is supported by and consistent with the evidence of Constable Lucic and also Mr. Barros (whose evidence was unchallenged).  The conclusion that both the emergency lights and siren were activated is not contradicted by the evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I conclude that, on this point, Mr. Singh does not accurately recall the events.

[70]         I conclude, therefore, that, at the intersection, Constable Parrish had the right of way, and Mr. Singh was obliged to yield to her.

[71]         I find further that Constable Parrish had reasonable grounds to believe that, at the relevant time, the risk of harm to members of the public from the exercise of the privileges under s. 122(1) of the Motor Vehicle Act was less than the risk of harm to members of the public (namely, the child threatened with harm) if those privileges were not exercised….

[78]         I find that Constable Parrish was proceeding cautiously across the intersection, with her emergency lights and siren activated, and her conduct was consistent with that of a reasonable officer acting reasonably and within the statutory powers (and duties) imposed on her in the circumstances on September 12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield the right of way to her.


Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed

March 19th, 2012

The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.

In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.

At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.