Gardiner v MacDonald, 2016 ONSC 602 (CanLII)
A fatal angle collision occurred on January 23, 2008 at approximately 1:54 am between an SUV driven by Mr. Mark MacDonald and a OC Transpo bus driven by Mr. Raymond Richer, at the intersection of Heron Road and Riverside Dr. in Ottawa, Ontario. At the time of the collision, the bus was not in service for the public and instead was transporting another bus driver. The roads were wet and slushy from snow. Traffic volume was light as would be typical for that time at night.
Mr. MacDonald was impaired by alcohol when he ran through a red light while driving westbound on Heron Road. Three of the four occupants of the SUV were killed, including Mr. MacDonald. The fourth occupant, Mr. Ben Gardiner (the son of the Plaintiffs), suffered catastrophic injuries. The Plaintiffs accepted that the primary cause of the collision was the negligence of Mr. MacDonald who had a G2 licence at the time.
The driver of the bus, Mr. Richer (one of the Defendants), was at the time of the collision was 69 years old and had 27 years experience driving buses. Mr. Richer had been traveling northbound on Riverside Drive when the collision occurred. GPS data from Mr. Richer’s bus recorded a speed of 65.6 km/h at 180 m south of the intersection where the collision occurred. The posted speed limit on Riverside Drive was 60 km/h.
Mr. Richer provided testimony that he had seen Mr. MacDonald’s SUV brake when approaching the intersection. Mr. Richer then looked left to check his mirrors and then looked right. By the time Mr. Richer turned his attention back to the road, the SUV was in front at the right corner of his bus.
The judge concluded that there was a degree of fault to Mr. Richer and apportioned 20% of the fault to him, while 80% of the fault was apportioned to Mr. MacDonald.
Plaintiff’s Human Factors Position
Mr. Peter Williamson gave human factors testimony for the Plaintiffs. Mr. Williamson analyzed the GPS data from the bus to demonstrate that Mr. Richer was speeding “many times” the night of the collision. Mr. Williamson used the PC Crash and WinCRASH software to estimate the pre-impact speed of the bus. Mr. Williamson opined that the pre-impact speed of the bus had been between 73 and 85 km/h. Mr. Williamson opined that if the bus had been traveling at the posted speed limit of 60 km/h, then the collision could have been avoided. On cross-examination Mr. Williamson conceded that a pre-impact speed of 61 km/h would still have resulted in a collision.
Mr. Williamson also disagreed with Mr. Young’s estimate of 1.9 seconds of “reaction time” that included 0.4 seconds of allowance for Mr. Richer to move his foot from the accelerator to the brake petal since Mr. Richer testified that his foot had already been hovering over the brake petal. Mr. Williamson further opined that if Mr. Richer’s reaction time was 1.1 seconds, which he stated as “the average reaction time” then the collision would have been avoidable at pre-impact speeds up to 72 km/h.
Mr. Williamson opined that Mr. Richer had 3 seconds between when Mr. MacDonald’s SUV crossed the stop line on Heron Road at the intersection with Riverside Drive and the time of the impact.
In cross-examination, Mr. Williamson admitted that Mr. Richer did act in a timely manner.
Defence’s Human Factors Position
Mr. Jamie Catania gave human factors testimony on behalf of the auto insurance policy of Mr. Gardiner’s mother. Mr. Catania used the PC Crash software to estimate the pre-impact speed of the bus would have been between 60 to 65 km/h. Mr. Catania opined that if Mr. Richer had been travelling at the posted speed limit of 60 km/h then the collision could have been avoided. Mr. Catania opined that the bus had been accelerating for most, or all, of the distance between the last GPS data point before the collision and the collision. Mr. Catania opined that Mr. Richer had 2.9 seconds between when Mr. MacDonald’s SUV crossed the stop line on Heron Road at the intersection with Riverside Drive and the time of the impact. Mr. Catania admitted that Mr. Richer took reasonable steps to avoid a collision when confronted with the SUV.
Mr. Jason Young gave human factors testimony for the Defendants OC Transpo and Mr. Richer. Mr. Young was the source of a 1.9 second perception-reaction time to account for Mr. Richer’s reaction time upon detecting the emergency created by Mr. MacDonald entering the intersection in front of the bus. The 1.9 second response time provided by Mr. Young was used by the other two human factors experts (Mr. Williamson and Mr. Catania). Mr. Young’s analysis concluded that Mr. Richer’s pre-impact speed would have been 66 km/h. Mr. Young opined that there had not been enough time for Mr. Richer to avoid the collision by either steering or braking. Mr. Young agreed that the average driver’s perception-reaction time for an unexpected hazard is 1.1 seconds.
Mr. Young opined that Mr. Richer had 2.4 seconds between when Mr. MacDonald’s SUV crossed the stop line on Heron Road at the intersection with Riverside Drive and the time of the impact.
The judge criticized Mr. Young for failing to adequately address the hypothetical situation of whether the collision could have been avoided if Mr. Richer had been travelling at the posted speed limit. The judge stated that “I prefer the opinion of Peter Williamson and Jamie Catania over that of Jason Young which I find to be unsound in relation to accident avoidance”. In addition, the judge stated “the evidence proffered by Jason Young raised multiple concerns which ultimately laid in question his opinion”.
The judge agreed with the expert opinions of Mr. Williamson and Mr. Catania that Mr. Young’s GPS conclusions (which included “postulating that the collision occurred at the time of the missing data point, interfering with the GPS signal”) were unduly speculative.
The judge agreed with Mr. Williamson’s conclusion that Mr. Richer could have avoided the collision with an “average reaction time” of 1.1 seconds. The judge accepted that Mr. Richer had his foot over the brake of the time and therefore less time was needed for the “reaction time”.
In the Reasons for Judgment, the judge identified that Mr. Richer gave conflicting testimony as to his speed which ranged from traveling “five kilometers more or less than the posted speed limit” to traveling always “five kilometers below the posted speed limit”. When confronted with the GPS evidence, Mr. Richer denied the accuracy of both the GPS speed data and the GPS route data. The judge was convinced by the opinions of Mr. Williamson and Mr. Catania that the bus was traveling faster than 65.6 km/h recorded by the GPS 180 m south of the intersection where the collision occurred.
The judge assigned some of the blame to Mr. Richer on the basis that as a bus driver he had a “higher standard of care” than a typical driver. The judge decided that Mr. Richer had a duty to observe the posted speed limit and to drive defensively to avoid possible collisions with other vehicles. The judge decided that Mr. Richer had 1) not adjusted his driving behaviour to account for weather and road conditions, 2) driven over the speed limit, and 3) “inattention to the intersection ahead of him, when Mr. Richer chose to look left, then into his mirrors, and right before returning his attention to the front of his bus”.
In conclusion, the judge stated that the collision could have been avoided but for Mr. Richer’s negligence.