How much responsibility, in terms of a standard of care, does a professional bus driver have to other motorists? This was the overriding issue in the 2016 case of Gardiner v. Macdonald, where Ben Gardiner, the sole survivor of a horrific car accident that took the lives of three others, brought a legal claim against bus driver Raymond Richer and Richer’s employer, the City of Ottawa.
The tragic incident occurred in the early hours of January 23, 2008, when an SUV driven by Mark Macdonald collided with an OC Transpo Bus that was being driven by Mr. Richer. It was subsequently confirmed that not only was the SUV driver under the influence of alcohol at time of the crash, but he also recklessly drove through an intersection on a red light, which made him liable for the collision. The plaintiff, the only occupant of the SUV who was not fatally injured, conceded that the primary cause of the accident was due to the SUV driver’s negligence, but he argued that there was a duty of care Mr. Richer owed to the public, including the passengers in the SUV, that he failed to provide. The plaintiff charged that on the night of the accident, Mr. Richer failed to meet the standard of care for any reasonable and prudent driver, noting that he not only ignored the speed limit but also the inclement weather and slippery road conditions. The winter driving conditions, the plaintiff argued, meant that Mr. Richer should have been exercising extra caution.
Defense counsel challenged the plaintiff’s claim with the argument that the SUV driver was entirely to blame for the incident by recklessly driving through a red light into the intersection. The defense also argued that this action created a hazard that no reasonably prudent driver who had the right-of-way, could be expected to avoid.
To make a decision on the matter, the judge had to consider three key factors: the duty of care owed by a driver while having the right of way; the duty of care owed by a professional driver to the servient driver; and whether or not there was a causal link between the breach of care, if any, by the driver, to the injuries and losses sustained by the plaintiff.
In recent years, the Courts have adopted the following terminology in terms of one driver having the right of way – that is, the driver with the right of way is referred to as “dominant”, while the driver who must yield is referred to as “servient”. However, the dominant driver is still held to a specific standard of care, which states that despite having the right of way, the driver should not exercise that right under the following conditions: if they become aware or ought to have been aware that the driver without the right of way is proceeding through the intersection on a red light; and if the circumstances are such that the driver with the right of way has the opportunity to avoid a collision. In other words, the dominant driver may be held partly responsible for an accident if they had a reasonable opportunity to avoid a collision but failed to do so. This statutory right-of-way by the dominant driver was a significant issue in this case; specifically, whether or not Mr. Richer conceivably could have avoided the collision, despite the SUV driver’s recklessness.
The plaintiff argued that the bus driver could have prevented the collision. Based on the testimony of forensic experts, crash test analysis, GPS data from the bus, accident scene photos, eyewitness testimony and more, the plaintiff’s counsel argued that Mr. Richer was actually speeding at the time of the collision and had he not been doing so, he likely could have reacted in time to avoid a collision when he saw the SUV enter the intersection. It was alleged that this constitutes negligence on the bus driver’s part, particularly because of the hazardous weather conditions that night combined with the greater care required in safely handling a bus of considerable size and weight.
Buses, like trucks and other heavy vehicles require extra skill and care to maneuver effectively, due to their substantial mass. This also means that it can be very difficult to stop or turn in an instant which is what would have been required when the SUV drove into the intersection on a red light. Two of the expert witnesses concluded from their crash test and avoidance analysis, that had the bus driver been travelling at the posted speed limit, he would have had time to avoid the collision. However, Mr. Richer denied speeding at the time of the accident and dismissed the GPS data from the bus as unreliable.
After reviewing all the testimony and evidence, the judge ruled in favor of the plaintiff, concluding that the evidence demonstrated that the bus driver failed to meet the standard of care of a reasonably prudent driver in multiple respects. The judge noted that Mr. Richer was both unreliable and not credible in his testimony and further, that it was particularly negligent to have been speeding that night considering the weather and the fact that he was driving a vehicle that is difficult to maneuver. The judge also noted that Mr. Richer’s testimonies made it clear that he understood that he had an obligation as a professional driver to exercise a high standard of care.
The court found that the accident could have been avoided were it not for Mr. Richer’s negligence and therefore, there was a causal link between Mr. Richer’s actions and the plaintiff’s injuries. Justice Roccamo apportioned 80 percent of the responsibility for the accident to the SUV driver and 20 percent to Mr. Richer.
All drivers have a responsibility to drive safely, and a failure to do so can literally result in a life or death situation. At Rastin & Associates, we have seen the devastating effects of negligent driving on seriously injured accident victims and their loved ones. The physical injuries can alone be overwhelming, but accidents also take a huge emotional and financial toll on families. If you or someone you love were injured in a motor vehicle accident resulting from another driver’s negligence, do not hesitate to call our office for an assessment of your case and for expert guidance on your best legal options for moving forward.
You can call us at 844-RASTIN1 or email Rastinlaw.com