Supreme Court of British Columbia

No. C881069 New Westminster Registry

Parties

Between:

Cathy Louise Aseltine and Daryl Ryzak, Plaintiffs

And:

Her Majesty the Queen in Right of the Province of British Columbia and Robert Daniel Sutherland, Defendants

Reasons for Judgment of the Honourable Madam Justice Ryan

Counsel: John Chipperfield, Esq., Counsel for the Plaintiffs Gary Somers, Q.C., Counsel for the Defendants

Date and Place of Hearing: September 5, 6, and 7 1990, New Westminster, B.C.

The plaintiffs' claims are for damages for personal injuries suffered in a motor vehicle accident in which the plaintiffs' vehicle, a Toyota Tercel, was in collision with an ambulance, driven by the defendant Robert Sutherland, who was in the employment of the Province of British Columbia.

Liability has been the only issue litigated by the parties at this trial.

THE FACTS

There are discrepancies in the evidence which must be resolved in determining whether the actions of the defendant Sutherland were negligent. I will deal initially with the facts which are not in dispute.

Since the time of the accident the plaintiff Cathy Louise Aseltine has married and taken the name of her husband. For that reason I will refer to her in this judgment as Mrs. Johnston.

Undisputed portions of the evidence

By way of introduction I will deal first with some of the undisputed portions of the evidence.

The accident occurred sometime between 7:00 p.m. and 8:00 p.m. on July 10, 1987 at the intersection of Eighth Avenue and Colburne Street in New Westminster. It was light out. The weather was clear and visibility was good.

Mrs. Johnston had been travelling east on Eighth Avenue. She was in the process of turning left, that is, turning north, from Eighth Avenue onto Colburne Street when the accident occurred. The ambulance driver, the defendant Mr. Sutherland, was answering a call to an accident scene. He had been travelling eastbound some distance behind Mrs. Johnston's vehicle on Eighth when he pulled into the westbound lane of traffic. He continued to travel eastbound. He came up the wrong lane of traffic behind Mrs. Johnston. She turned left in front of Mr. Sutherland and the two collided. Mrs. Johnston and her passenger, Daryl Ryzak were injured.

Eighth Avenue runs in an east-west direction. It is a main artery. Colburne Street runs in a north-south direction. Colburne Street is truncated. I will refer to it as Colburne South and Colburne North. It does not run straight across Eighth Avenue but meets it at two T intersections separated by the distance of roughly 120 feet. In other words Colburne South ends on the south side of Eighth Avenue and Colburne North begins again some distance to the east on the north side of Eighth Avenue. It was at the intersection of Colburne north and Eighth Avenue that the accident which is the subject matter of these proceedings occurred.

Eighth Avenue is a two lane street west of Colburne North. East of Colburne North Eighth Avenue broadens to a four lane street with two lanes for vehicles travelling east and two for those travelling west.

There are shopping centers on the north side of Eighth Avenue. They run east from Colburne North to the next street east, McBride Boulevard. Between Colburne North and McBride there are four exits from the shopping centers allowing traffic to turn westbound onto Eighth Avenue. Of the four, only two are situated to permit traffic to turn eastbound onto Eighth Avenue.

Eighth Avenue contains a series of concrete medians which separate the eastbound traffic from the westbound. The medians vary in width. In some places they narrow to permit the creation of a third left-turning lane for eastbound traffic. There is one median along Eighth Avenue running the distance between the two Colburne Streets. Three medians divide Eighth Avenue between Colburne North and McBride. At two intervals between the medians there are left-turn lanes which permit traffic to turn into the shopping centers.

Counsel were agreed that the speed limit in the area was 50 k.p.m.

At the time of the day and year that the accident occurred the area is usually fairly busy because of the presence of the shopping center.

There are other undisputed areas of evidence to which I will refer to momentarily but before that I move to the areas of the evidence in which there was conflict.

The disputed facts

The material facts which are in dispute are the following:

1. The length of time Mrs. Johnston was stopped before beginning her left hand turn.

2. How far Mrs. Johnston was into her turn at the time of the collision.

3. The speed of the ambulance prior to the accident.

4. Whether the ambulance was answering an "urgent emergency" at the time of the accident.

The plaintiffs called no witnesses other than themselves. The defendants called the ambulance driver, Mr. Sutherland; the driver's colleague, Mr. Hoffman; and three independent witnesses. Neither side called an accident reconstruction expert.

I will not refer to all of the evidence. For the most part I will deal with only that evidence which touches on the issues to be resolved.

Mrs. Johnston testified that she was driving her Toyota Tercel that evening. She was wearing her seatbelt as was her passenger, the second plaintiff, Daryl Ryzak. Mrs. Johnston said that she was on her way to a pet store in the McBride Plaza. She drove east on Eighth Avenue. About a half a block before Colburne North she turned on her left-turn signal to indicate a turn onto Colburne North. Mrs. Johnston said that she waited for a car to pass which was travelling west on Eighth. She said that she was stopped for about 10 to 15 seconds. She was at about a 30 degree angle pointed north in the direction of Colburne North. She said that she could see another vehicle stopped on Colburne North facing onto Eighth. She did not look to her left (west) as she did not expect any vehicle to be driving eastbound in the westbound lane. Mrs. Johnston said that she pulled out to make her turn. She said that she thought that she had reached the curb lane on the north side of Eighth when she was struck by what she later learned to be the ambulance travelling eastbound in the westbound lane.

Mrs. Johnston does not remember much of the accident. She was thrown out of her vehicle. Mrs. Johnston said that she recalled that before she turned left she saw an emergency vehicle stopped ahead of her on Eighth on the hill two or three blocks east of McBride. This was the destination of the ambulance which hit her. Mrs. Johnston said that she did not hear the sound of the siren from the vehicle which hit her. It is indisputable that the defendant Sutherland was sounding his alarm. To explain her failure to hear it, Mrs. Johnston offered the thought that her door window was rolled up which prevented her from hearing the noise. In my view whether the window was rolled up or not is irrelevant. The evidence disclosed that the siren was sufficiently loud that she should have heard it with her window closed. It seems likely that having seen an emergency vehicle up the hill ahead of her Mrs. Johnston was not aware that there may be a second vehicle nearby on its way to the same scene. She was not fully paying attention.

Daryl Ryzak, Mrs. Johnston's passenger and the second plaintiff in these proceedings testified that Mrs. Johnston was stopped 3 to 15 seconds before turning left. He estimated that there were 4 to 6 vehicles that passed westbound on Eighth before Mrs. Johnston made her move. His estimation of the number of vehicles seemed to be based on the amount of time that Mrs. Johnston waited before turning. Mr. Ryzak did not seem to have a good recollection of the events leading up to the accident. His evidence cannot be relied on with respect to these points.

The defendant Sutherland testified that he received a call from his dispatcher with respect to an accident at Eighth Avenue and Cumberland Street. He said that he understood from the dispatcher that a pedestrian had been injured there. He said that there are only two types of calls - emergency and non-emergency. This call was characterized by the dispatcher as a "Code 3" or emergency call. To Mr. Sutherland this meant that he was to use the sirens and lights on the vehicle and he was to get to the scene by the most direct route. He understood that he was entitled to break the rules of the road in such circumstances but that the policy of his employer was that he not travel faster than 25 kilometers over the speed limit. Mr. Sutherland said that it was his employer's policy that the dispatcher designate the type of call. If a call was designated as an emergency he was to respond to the call as if it was an emergency until told otherwise by the dispatcher. In this case the call was not redesignated.

Mr. Sutherland testified that he was driving at a speed of between 60 and 70 k.p.h. as he travelled east down Eighth Avenue. On an earlier occasion under oath he estimated his speed at between 65 and 70 k.p.h. He testified that as he approached Colburne Street he saw that the light at McBride was red and that vehicles occupied each eastbound and left-turn lane. The accident scene to which he was responding was two or three blocks beyond McBride.

Mr. Sutherland decided to move into the westbound lane of traffic on Eighth because it was free of traffic up to the light at McBride. He said that before he moved into the westbound lane he saw Mrs. Johnston's vehicle with its left-turn signal on ahead of him stopped on Eighth at Colburne North. He said that he was two blocks behind the Johnston vehicle when he made this observation. He said that he decelerated and moved into the westbound lane just prior to the concrete median which begins a few feet west of the entrance to Colburne South. He said that he was travelling at approximately 50 to 60 k.p.h. On a prior occasion he said under oath that his speed was 55 to 60 k.p.h. Mr. Sutherland said that when he moved into the westbound lane he changed his siren from a "hi\lo" mode to a "yelp" mode. Apparently the "yelp" mode is a more insistent warning.

Mr. Sutherland said that he thought that Mrs. Johnston was aware of his presence. On examination for discovery he said that since she had not turned her head in his direction he was concerned that she may not have noticed him. Mr. Sutherland proceeded a little over 200 feet down the westbound lane when his vehicle collided with Mrs. Johnston's Toyota. He said that he saw her vehicle begin to move when he was 30 to 40 feet away from her. He swerved to the left but could not avoid the accident.

On cross-examination Mr. Sutherland steadfastly refused to make any time estimates. He would only say that from moment he first saw the Johnston car until it pulled out in front of him "a number of seconds" had elapsed. He said that from the time he moved into the westbound lane until the collision "a short period of time" had passed.

Mr. Sutherland drew a diagram of the accident scene a day after it occurred. The diagram was marked as an exhibit. According to Mr. Sutherland the nose of the plaintiff's vehicle had just moved into the north curb lane of Eighth Avenue when the two vehicles collided.

Timothy Hoffman, Mr. Sutherland's colleague, was a passenger in the ambulance at the time of the accident. Mr. Hoffman testified that the ambulance was travelling at 65 k.p.h. three blocks prior to turning into the westbound lane on Eighth Avenue. He said that the intersection at Eighth and McBride was blocked with traffic in both the eastbound and westbound lanes. He said that the westbound lane of Eighth Avenue west of the traffic light at McBride contained no westbound traffic. He said that the ambulance slowed and moved into the westbound lane. He made no estimate of speed at the time of the accident. He said that he had seen the Johnston vehicle travelling eastbound in front of the ambulance. He said that he saw it come to a stop in the left-turn lane at Colburne North. He said that he saw it stopped for 20 to 25 seconds before the accident. On cross-examination he said that it might have been only 15 seconds. He estimated that the ambulance had travelled for 5 seconds in the westbound lane when the collision occurred.

Mr. Hoffman also testified that he knew before the collision with the Johnston vehicle that another ambulance had reached Eighth and Cumberland. He saw the lights of the ambulance up the street and he heard it check in with the dispatcher over his radio equipment in the ambulance. Mr. Hoffman said that they did not receive orders from the dispatcher that the call was now not an emergency.

Sharon Davies testified that she was stopped at a stop sign on Colburne North waiting to turn right (west) onto Eighth Avenue when the accident occurred. Ms. Davies said that she had seen an ambulance and fire truck at Eighth and Cumberland. She said that as she was stopped at the stop sign she heard a siren on her right. She said that she sat and waited. She said that she noticed a vehicle in front of her which appeared to be waiting to turn left. Ms. Davies said that she saw the ambulance approaching in the westbound lane. It was about half way down the westbound lane when she first saw it. She saw the Johnston car begin to move. She said that she opened her mouth to yell out a warning but it was futile. The two vehicles collided.

Ms. Davies said that she was not good at estimating speeds or time. She said that she had told an ICBC investigator that the ambulance was travelling at a "good clip", that it was "exceeding the speed limit". She thought that the Toyota was stopped a couple of minutes before it turned. On cross-examination she said that it could have been up to 3 or 4 minutes. She said that it was hard to say how much time had elapsed from the first time that she saw the ambulance until the collision because "it feels like time was suspended". She agreed that it could not be longer than 10 or 15 seconds but said that it seemed like a longer time.

The next two witnesses were Dennis Berg and Douglas Leech. These young men were in separate vehicles four to five cars behind the ambulance prior to the accident. Neither saw the collision. They both said that they had travelled for some distance behind the ambulance and that they were not travelling over 35 m.p.h. They said that they could keep up to the ambulance. Mr. Berg said that it took him no more than two minutes to reach the accident scene at Cumberland and Eighth from the McBride stop light.

Conclusion on the disputed facts

I have concluded that Mrs. Johnston was stopped in the left-turn lane at Colburne North for at least 15 seconds before she began to make her turn. This is the minimum amount of time calculated by Mr. Hoffman who I found to be the most reliable witness to testify. Mr. Hoffman gave his evidence in a straightforward and thoughtful manner. In my view of all the witnesses he had the best recollection and the best ability to estimate time and speed. Although he is employed by the second defendant and is obviously a friend of Mr. Sutherland he did not appear to be tailoring his evidence to suit the defence. In any event 15 seconds is consistent with all of the witnesses who attempted to estimate the time with the exception of Ms. Davies. I accept Mr. Hoffman's evidence that the accident occurred about 5 seconds after Mr. Sutherland had turned down the westbound lane.

I have also concluded that Mrs. Johnston had just begun to make her turn when she was hit by the ambulance. I do not accept that she was almost across the street when her vehicle was struck. This is consistent with the evidence of Mr. Hoffman and Mr. Sutherland who I accept on this point. It is also consistent with Ms. Davies who saw the Johnston vehicle begin to turn before the accident. This conclusion is consistent with the damage that the vehicles sustained in the accident. An examination of the photographs indicates that the major damage to the ambulance was confined to its right bumper and fender. Having said this I appreciate that little weight should be attached to this evidence without the assistance of an expert.

Finally I have concluded that Mr. Sutherland was probably travelling slightly over the speed limit when Mrs. Johnston began to make her turn. This conclusion is based on the admission of Mr. Sutherland under oath at another proceeding that he was travelling between 55 and 60 k.p.h. at the time of the accident. Mr. Sutherland did not sufficiently explain why his estimate had changed to a lower rate of speed at this trial. Mr. Hoffman did not testify as to the rate of speed once the ambulance had moved into the westbound lane but he said that it was travelling at 65 k.p.h. before the switch and was decelerating. Ms. Davies said that the ambulance was travelling over the speed limit. I appreciate that Ms. Davies was very poor at estimating time and speed but her evidence is nonetheless consistent with a finding that Mr. Sutherland drove over the speed limit. Although this finding is probably inconsistent with the evidence of Mr. Berg and Mr. Leech who said that they kept up with the ambulance at speeds of 35 m.p.h. in the eastbound lane, I find that they must be mistaken. I prefer the evidence of those who were nearer to and in the ambulance at the time of the accident.

I should also mention that although it was not undisputed, there seems to be little doubt that the westbound lane of Eighth Avenue west of McBride Boulevard was free of traffic when Mr. Sutherland made the decision to move into that lane. I find that the vehicle that Mrs. Johnston was waiting to pass before she turned left had done so before the ambulance proceeded into that lane. This finding is consistent with the evidence of the witnesses whose evidence I have accepted and inconsistent with the evidence of those witnesses whom I find to be less reliable.

I will deal with the question of "urgent emergency" in the next section of this judgment.

THE ISSUES

Each party claims that the other was negligent. It is trite to say that conduct is negligent if it creates an unreasonable risk of harm. What constitutes an unreasonable risk of harm will depend on the circumstances.

Speaking of emergency situations in Watt v. Hertfordshire County Council [1954] 2 All E.R. 368 Lord Denning stated @p.371:

The saving of life or limb justifies taking considerable risk...It is always a question of balancing the risk against the end.

Section 118 of the British Columbia Motor Vehicle Act embodies this balance. The section recognizes both the social utility of vehicles employed to deal with emergency situations and the danger they create. The section permits these vehicles to breach the statutory rules of the road in certain situations. Subsection (3) creates a standard of care which has been recognized throughout the case law as the test of negligence where such activity has resulted in harm. (Sinclair et al v. Biddle, 1965 487 (BC CA), 53 WWR 14 (BCCA); Vallery v. Po et al, 1971 1039 (BC SC), 23 D.L.R.(3d) 92 (BCSC)).

Section 118 provides:

(1) Notwithstanding anything in this Part, but subject to subsections (2) and (3) a driver of an emergency vehicle may

(a) exceed the speed limit;

(b) proceed past a red traffic control signal or stop sign without stopping;

(c) disregard rules and traffic control devices governing direction of movement or turning in specified directions; and

(d) stop or stand.

(2) The driver of an emergency vehicle shall not exercise the privileges granted by subsection (1) unless he is

(a) sounding an audible signal bell, siren or exhaust whistle and showing a flashing red light;

(b) a peace officer in the immediate pursuit of an actual or suspected violator of the law; or

(c) a peace officer engaged in a police duty of a nature that the sounding of a signal bell, siren or exhaust whistle would unduly hamper the performance of that duty, in which case he may exercise the privileges granted by subsection (1) by showing a red flashing light only.

(3) The driver of an emergency vehicle exercising a privilege granted by subsection (1) shall drive with due regard for safety, having regard to all the circumstances of the case, including

(a) the nature, condition and use of the highway;

(b) the amount of traffic that is on, or might reasonably be expected to be on, the highway; and

(c) the nature of the use being made of the emergency vehicle at the time.

This section of the Motor Vehicle Act permits emergency vehicles to break traffic rules with caution and at the same time imposes a duty on drivers of nearby vehicles.

Section 179 of the Act states:

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 shall 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.

Robert Sutherland was entitled to break the ordinary rules of the road if he was driving an "emergency vehicle" at the time of the collision. In other words in order to rely on the provisions of s. 118 of the Motor Vehicle Act the defendants must establish that the ambulance was an "emergency vehicle" within the meaning of the Act. The plaintiffs take the position that the defendants have not done so.

In this litigation the parties proceeded on the basis that there was a pedestrian injured at the Eighth and Cumberland intersection and that the Sutherland ambulance was responding to that call. In my view that is sufficient to establish that there was an "urgent emergency". The plaintiffs say however that once it was conceded that another ambulance had arrived at the scene of the accident it was incumbent on the defendants to show that the emergency continued. Neither party called the dispatcher nor anyone from the first ambulance. I infer from the evidence that the first ambulance had not been at Eighth and Cumberland very long before the accident occurred at Eighth and Colburne. In my view it is an appropriate policy that the dispatcher code the calls and that the discretion not lie with the individual ambulance driver. To do otherwise would result in chaos. In this case it is probable that the first ambulance had not been on the scene long enough to assess the matter and to relay to the dispatcher that a second ambulance was not needed if, in fact, that was the case. In all the circumstances I am satisfied that the Sutherland ambulance was an "emergency vehicle" within the meaning of the Act.

The plaintiffs' major point in this action is that Mr. Sutherland was negligent in choosing to drive down the wrong side of the road at the speed he did given the circumstances pertaining that evening.

The plaintiffs say that the construction of the roadway in that area created a tunnel effect for a driver with no escape route. It was conceded by Mr. Sutherland that the medians would make it difficult for him to move back into his proper lane of travel except at the places where the medians broke at intersections or where there was space for left turns. No median between Colburne South and McBride Boulevard however is less than 119 feet long, the longest being 220 feet in length. There is no question that if it was necessary for Mr. Sutherland to take evasive action while in the westbound lane there was not much room to manoeuvre.

The plaintiffs also point out that the traffic in the area was moderate that evening. It could be expected to be that heavy given the presence of the shopping centers. In addition to that there are a number of exits from the shopping centers permitting traffic to turn westbound onto Eighth east of Colburne North between Colburne North and McBride Boulevard. There are also spaces between the medians which permit left turns either onto roadways or into the shopping centers.

The plaintiff submits that Mr. Sutherland should not have driven on the wrong side of the road given these circumstances. Although traffic was backed up at the McBride light it was backed up in both directions. What was he going to do when the westbound traffic met him after the light changed? Where was he intending to move back into his proper lane of travel? The plaintiffs say too that Mr. Sutherland's speed was too great. If he was going to take this route he should not have undertaken it at the speed he was travelling. The plaintiffs calculated that at 55 k.p.h. the ambulance would cover just over 50 feet per minute. Finally, they say the ambulance was three blocks away from the accident. This manouevre was too risky in the circumstances.

The defendants submit that given the situation Mr. Sutherland was permitted to take the risk he did. Traffic was backed up at the light at McBride. He was answering an emergency call. It took Mr. Berg about two minutes to get to the accident scene from the McBride and two minutes is a long time where a life may hang in the balance. The defendants submit that Mr. Sutherland was entitled to rely on the fact that the drivers in his path would obey the provisions of the Motor Vehicle Act, that they would pull over and stop. He was entitled to believe that Mrs. Johnston was aware of his presence because she had not moved after the on-coming car had passed her. The defendants submit that Mrs. Johnston was fully to blame for the accident in failing to hear the siren of the ambulance and for negligently pulling out in front of it.

CONCLUSION

In my view both parties were at fault. Both their negligent acts contributed to the accident.

Mrs. Johnston was not paying the attention to her surroundings required of a prudent driver. She ought to have, but failed to hear the siren of the ambulance. She failed to yield the right of way to the ambulance. She was negligent in making a left turn in these circumstances.

Mr. Sutherland was also negligent. He was not negligent in choosing to drive the wrong way down Eighth Avenue. Traffic was backed up at the light. The route he chose would take him faster to his destination. But having made this choice he failed to slow down sufficiently to avoid the hazards this action created. He was entitled to rely on the provision of the Motor Vehicle Act which requires drivers to get out of the way of an emergency vehicle. But he ought to have appreciated that he was travelling in a direction forbidden to all other drivers and that his approach might not be observed by all drivers. Mr. Sutherland undertook an extremely risky plan. His precautionary measures ought to have been commensurate. He should have slowed his vehicle down below the speed limit.

I do not have any evidence as to how long it takes to stop a 3/4 ton ambulance van. No evidence was led to demonstrate that had the ambulance been travelling at a particular rate of speed that the accident would not have occurred. I can say however, that had the ambulance been travelling below the speed limit common sense dictates that the accident would not have occurred or that the damage to Mrs. Johnston's vehicle would have been significantly reduced. Given the length of time that Mrs. Johnston remained stopped Mr. Sutherland was entitled to believe that she may have been aware of his presence. Her vehicle was angled away from his direction however and he could see only the back and side of her head. He did not make eye contact with her. By his own admission he was concerned that she might not have noticed him. As I have said, in these circumstances Mr. Sutherland was negligent.

Taking all this into consideration Mrs. Johnston is more at fault than Mr. Sutherland. Fault is apportioned 75\25 in favour of the defendants.

C. RYAN, J.

Vancouver, B.C.

October 12, 1990