Fordham et al v. Municipality of Dutton-Dunwich, 2012 ONSC 6739 (CanLII)

Date: 2012-11-27

Facts

A single vehicle roadway departure collision occurred at approximately 8:50 PM, January 20^th, 2007 at the intersection of Willey Road and Erin Line in Dutton-Dunwich, Ontario. The intersection environment was rural and both roads were gravel roads with an unposted speed limit of 80 km per hour. The north-south Willey Road was stop controlled. The driver failed to stop at the stop sign and then lost control as the road alignment changed. There was no signage advising drivers of the change in the road alignment.

Both sides agreed that a driver who had stopped at the stop sign would have been able to safely negotiate the change in road alignment.

The driver was 16-year-old (at the time) Mr. Andrew Fordham (the Plaintiff) and his front seat passenger was 23-year-old Mr. Robert Kersten. There were no witnesses to the collision and neither the plaintiff nor the passenger have any memory of the collision. The driver is believed to have had a blood alcohol level of around 29.6 milligrams per deciliter at the time of the collision. Mr. Fordham had never driven near the collision location before that night. Prior to the collision, from April to October, Mr. Fordham had been racing full sized vehicles once per month and was a recipient of a “most improved driver” award.

The judge found that the cause of the collision was two-fold:

1. The driver (Plaintiff) not stopping at the intersection
2. The municipality (Defendant) not providing warning of the change in the roadway alignment

Therefore, the judge found both the Plaintiff and Dependant to each be 50% responsible for the collision.

Plaintiff’s Human Factors Position

Mr. James Hrycay, a traffic engineer, measured the collision location and concluded that the intersection could best be categorized as “skewed”. Mr. Hrycay described the change in road alignment as substantial and characterized the change as “offset”.

Dr. Alison Smiley provided a human factors analysis of a driver who chooses not to stop at the stop sign and concluded that a driver at or near the speed limit would not be able to safely negotiate the change in road alignment at the collision location.

Both Mr. Hrycay and Dr. Smiley opined that “rural stop signs are not viewed as credible signs”. Dr. Smiley cited research that found at intersections where drivers have a clear view of traffic on the intersecting road that 75% of drivers do not make a full stop, and 30-35% of drivers proceed straight through. Dr. Smiley did recognize that alcohol can impact driving even at low levels. Both Mr. Hrycay and Dr. Smiley opined that additional signage (such as a checkerboard or reverse curve sign) would have assisted drivers, who likely will drive through a stop sign in a rural area while having clear visibility of the intersection to negotiate the offset.

Defendant’s Human Factors Position

The Defendant did not provide any human factors position.

Mr. Jack De Chiara, a traffic engineer analyzed information provided by Mr. Hrycay and disagreed with the characterization of the intersection as “offset”.

Judge’s Rational

The judge dismissed the testimony of the Defendant’s expert, finding Mr. De Chiara to be partisan rather than providing unbiased expert opinion. The judge ruled the intersection to be best described as “offset”.

The judge disagreed with the plaintiff’s argument that a driver who does not stop for a stop sign would also not likely have reduced his speed for a sign warning of the change in alignment. Given Mr. Fordham’s racing experience, the judge considered him to have more experience than an average 16-year-ol driver with a G2 licence. The judge considered Mr. Fordham to be “an experienced young race car driver” and therefore it would be speculative to assume that he would not have adjusted his speed if he had been provided with a warning as to the change in alignment. In the judge’s opinion, Mr. Fordham did not reduce his speed for the stop sign because there was a lack of traffic on the intersecting road, but would have very likely reduced his speed if warned with a checkerboard sign.

The judge’s decision was reversed on appeal in:

Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 (CanLII)

The Court of Appeal stated: “A municipality’s duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising reasonable care. A municipality has no duty to keep its roads safe for those who drive negligently. Running a stop sign at 80 km per hour is negligent driving. The undisputed evidence is that the road Fordham was driving on posed no hazard to a driver who stopped at the stop sign, or even to one who slowed to 50 km per hour at the intersection.” The Court of Appeal found that the judge had misapplied the test for assessing a municipality’s statutory duty of repair.

The Court of Appeal concluded that there was no credible evidence that ordinary rural drivers go through stop signs at or near the speed limit. In addition, The Court of Appeal stated that there cannot be one standard of reasonable driving for “rural drivers” and another for “city drivers”, rather “there is but one standard of reasonable driving”. “If a road is safe for a reasonable driver – as was the Willey Road–Erin Line intersection – then a municipality has no duty to put up additional signs or take other precautions to prevent accidents that will occur only if a driver is negligent.”

The Court of Appeal found that the Ontario Traffic Manual’s guidance on checkerboard signs uses the word “should” and not “must”. In addition the Ontario Traffic manuals are guidelines rather traffic manuals which would establish a legally enforceable standard of care for civil liability.

The Court of Appeal also stated “… the trial judge’s reasons contain an irreconcilable conflict. The trial judge could impose liability for non-repair only by finding that in rural areas driving through stop signs was reasonable driving. Yet, when she came to apportion liability, she found that in running the stop sign, Fordham was negligent. These two findings cannot be reconciled. Running stop signs, even on rural roads, is negligent driving. A municipality has no duty to install warning signs that are unnecessary for reasonable drivers.”

The Court of Appeal set aside the judgement and dismissed the Plaintiff’s action.