ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-07-184
DATE: 2013/01/18
BETWEEN:
JESSE FERGUSON, SHERRY FERGUSON, MARK FERGUSON and TYLER FERGUSON by his Litigation Guardian, Sherry Ferguson
David F. MacDonald/Michael L. Bennett/R. Ben, for the Plaintiffs
Plaintiffs
- and -
THE CORPORATION OF THE COUNTY OF BRANT
Anne E.Spafford/Jennifer Hunter/Shannon Gaudet, for the Defendants
Defendants
HEARD: Oct, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26,29, 30, 31, Nov. 1, 2, 5, 6, 13, 2012
The Hon. Mr. Justice Kent
REASONS FOR JUDGMENT
Table of Contents
Introduction.................................................................................................................................... 3
Background.................................................................................................................................... 3
Positions of Counsel....................................................................................................................... 5
Plaintiffs....................................................................................................................................... 5
Defendant................................................................................................................................. 7
Relevant Law................................................................................................................................. 8
Condition of the Road Surface................................................................................................... 15
Signage.......................................................................................................................................... 17
Analysis......................................................................................................................................... 22
Causation...................................................................................................................................... 24
Contributory Negligence............................................................................................................. 25
Apportionment............................................................................................................................. 28
Judgment...................................................................................................................................... 28
Costs.............................................................................................................................................. 28
Introduction:
[1] A tragic motor vehicle accident on 2 April, 2005 changed 17-year-old Jesse Ferguson’s life forever. He suffered serious and permanently disabling injuries as a result of the accident. Counsel advised the court at the outset of the trial that an agreement had been reached concerning the quantum of Jesse’s damages, but that the trial would be necessary to determine whether the County of Brant (the County) was liable for those damages or any portion thereof. If a finding of liability is made against the County, the court must also determine whether Jesse’s conduct was a contributing cause of the accident.
Background:
[2] At approximately 10:30 p.m. on the evening of the accident, Jesse was driving his father’s SUV in a westerly direction on Scenic Drive, a rural road in the County. The accident occurred at a point where Scenic Drive curved sharply to the driver’s right. Jesse failed to navigate that curve. His vehicle crossed in turn through the lane for oncoming traffic, the gravel shoulder, and a grassy area. It came to a stop when it struck a tree.
[3] Scenic Drive, at the time of the accident, was paved and had a posted speed limit of 60 KM/H. Before 1999 the road had been under the jurisdiction of the Township of Brantford. When the Townships of Brant County were amalgamated into the Municipality of the County of Brant, responsibility for maintenance of Scenic Drive became the County’s. The County, as of 2005 had responsibility for approximately 1,200 kilometres of roadway and 10- 12,000 traffic signs. Although Scenic Drive is fairly described as a rural road, there was an urban-like subdivision on its south side which was accessed by turning south onto Stoney Brae Drive from Scenic Drive at the curve that Jesse was unable to navigate.
[4] A considerable portion of the trial addressed the condition of the surface of Scenic Drive at the time of the accident and before the accident. While the detailed expert evidence was both interesting and informative, I found the evidence of the passengers in Jesse’s vehicle and the evidence of Staff Sergeant Shawn Nash who arrived on the scene shortly after the accident, together with the evidence of David Bannister and Paul McConkey to be most helpful and it will be reviewed in detail.
[5] At the time of the accident, a driver approaching the curve would have observed a worded “Winding Road” sign placed 166 meters from the beginning of the curve and a “Y” intersection sign placed 81 metres from the beginning of the curve. Both signs were present since at least 1999. Neither was the appropriate sign called for by the Ontario Traffic Manual. The manual required a sharp curve sign and a graphic winding road sign. Brian Malone, an expert testifying for the defendant maintained that the signs in place were adequate to warn drivers that the alignment of the roadway was about to change, that there was an intersecting road and that a curve to the right would require navigating, hence a need to reduce speed. James Hrycay, an expert called by the plaintiff disagreed and opined that the existing signs were not adequate.
[6] Brian Malone and James Hrycay also disagree concerning the need for a “Speed Advisory” tab-type sign. Their evidence on signage will be reviewed in detail. It must be noted, in addition, that in 2006 a “Speed Advisory” tab-type sign of 40 KM/H was posted for the curve by the County, although the evidence is not clear as to how that came about.
[7] The court heard no evidence of reported accidents at the curve in question before the accident and there was no evidence of any complaints to the County concerning the curve or the signs. There was some anecdotal evidence provided by Wendy and Tyler Ashby, residents in the subdivision reached by turning from Scenic Drive onto Stoney Brae Drive that they had observed vehicles that had slid from the road at the curve in question. Their evidence will be reviewed.
Positions of Counsel:
Plaintiffs
[8] Counsel for the plaintiffs submitted that the defendant municipality breached its obligation to keep its road, Scenic Drive, in a state of repair that was reasonable under the circumstances in two significant regards.
First the municipality failed to install signs that adequately warned ordinary motorists of the risk of navigating the accident curve. Simply put, contended counsel, a motorist navigating the curve at the speed limit in winter weather conditions, could lose control and slide from the road.
Second, it is the plaintiffs’ position that the municipality allowed a condition of non-repair to exist on Scenic Drive in the nature of a slippery, slushy and snow-covered road, which created an unreasonable risk of harm to motorists.
It is the plaintiffs’ position that each separate condition of non-repair set out above, and certainly the combined conditions of non-repair were “material causes” for the happening of Jesse’s accident and resulting damages.
Moreover, it is the plaintiffs’ position that the municipality failed to satisfy the Court or meet its onus to prove that it did not know or could not have reasonably been expected to have known about the state of repair of the highway with respect to its inadequate signage for the following reasons:
(a) There is no evidence that from 1999 up to the date of the accident, the municipality gave any thought to whether the signage present on Scenic Drive at its intersection with Stoney Brae Drive was suitable to warn ordinary motorists of the risks associated with the navigating the accident curve in winter weather conditions;
(b) The municipality put in place a negligent system for detection of faulty signage on its highways by relying exclusively on its employee Carl Gleason who, based on the evidence, was not fully trained to assume that responsibility.
(c) The municipality breached the Manual of Uniform Traffic Control Devices (MUTCD) between 1999 and 2001 and the Ontario Traffic Manual (OTM) between 2001 and 2005 with respect to the signage mandated by these manuals where the safe or advisory speed was below the posted speed limit. There was no evidence heard at this trial that any engineering judgment whatsoever was used by the municipality to usurp the presumption that the signage demanded by these manuals should not be followed.
[9] It is the plaintiffs’ further position that, to the extent that Jesse himself may be said to be “a cause of the accident”, any such negligence ought to be assessed at a de minimus range. Plaintiffs’ counsel contends that if any negligence is to be attributed to Jesse Ferguson, it ought to be assessed at less than 25 per cent based on the prevailing case law.
Defendant:
[10] Counsel for the defendant submitted that the plaintiffs have failed to satisfy the burden of proof. Counsel contends that the plaintiffs have not proven that the road was not in a reasonable state of repair for its character and location, and safe for the reasonable driver. Further, counsel submits that the plaintiff has not adduced evidence to prove causation. Counsel argues that even if plaintiffs’ counsel has adduced the requisite evidence the County is entitled to rely on the statutory defences available, that it could not reasonably have known of the default; that it took steps to prevent the default from arising; that it complied with Minimum Maintenance Standards.
[11] Counsel for the defendant further contends that the evidence supports a finding that Jesse Ferguson was not an ordinary driver, exercising reasonable care in the circumstances. As such, counsel submits, the County cannot be and is not liable for his accident. Counsel argues that Jesse’s failure to take reasonable precautions in the circumstances is the cause of his injuries. If, however, the County is found to bear any of the fault for the accident, counsel submits that Jesse bears the greatest portion of the fault and the responsibility for his resulting damages.
[12] The court, having concluded that this case turns on the issue of signage at the accident location, will not be making any finding with respect to winter maintenance by the County. That is not to say that there was no room for improvement. The County might have obtained additional weather and road information such as was available through the St. George Road and Weather Information Station. More patrolling when a winter storm was forecast and earlier salting of its roads might have improved the situation. Nevertheless, it may well be that even in an improved situation the actual road surface as a result of snow that fell just before and at the time of the accident would have been the same. If so, it would have been arguable that causation could not be established. No findings with regard to winter maintenance by the County are made, however.
Relevant Law:
[13] Our courts have consistently held that a municipality is not an insurer of the safety of the users of its roads and cannot be held to a standard of perfection. It must keep its roads in a reasonable state, so that those drivers using the roads may travel upon them safely. What constitutes a reasonable state of repair is fact-driven and varies from case to case.
[14] For example, in MacMaster v. York [1997] O.J. No. 3928 affirmed 2000 11308, the court noted that the applicable standard of care depends on the surrounding conditions and nature of the roadway, including traffic volume. In particular at paragraph 58 the court stated:
“The reference to the road as a country road is very important and is in keeping with comments that appear in several authorities that emphasize that the standard which is applied to the roadways under the [Municipal] Act is a relative one. It must respond to the nature of the roadway. A rural unpaved road with low volume traffic will not be assessed in the same fashion as a paved roadway in a densely populated area.”
[15] In Docherty v. Lauzon, [2010] O.J. No. 5017 it was held that “non-repair” is a relative concept and the condition of repair for a rural road does not impose a high standard on the municipality. To assess the relevant standard of care the court must consider multiple factors including the location, use, character and composition of the road. The trial judge found that a rural class 4 roadway, (the classification of Scenic Drive), is by its nature, susceptible to the development of adverse conditions to which drivers must adjust.
[16] The Supreme Court of Canada stated the law clearly in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. A municipality has a duty to keep a roadway in a reasonable state of repair so that the users of the roadway, exercising ordinary care, may travel upon it safely. The municipality owes a duty of care to the ordinary driver, not the negligent driver.
[17] The ordinary driver is expected to adjust his or her behaviour according to the nature of the roadway and the driving conditions. If he/she does not, he/she cannot sustain an action for negligence against the municipality, even where the conditions of a road present a hazard. For example, in Greenhalgh v. Douro-Dummer (Township), 2009 71014, affirmed 2012 ONCA 299, the court found that the failure to erect a sign would not present a hazard to the reasonable driver exercising ordinary care and dismissed a plaintiff’s action. The trial judge found that although the road authority must account for those who make mistakes, the ordinary driver is often faced with dangerous driving conditions and is expected to exercise a degree of caution.
[18] The Municipal Act, S.O. 2001 c. 25, sec. 44 sets out the statutory scheme to which a municipality is required to maintain the highways under its jurisdiction and the consequences for default when damages ensue. Sec. 44 (1) defines the duty as follows:
[19] “The Municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.”
[20] Section 44(2) of the Municipal Act creates legal liability for default in complying with sub-section (1).
[21] “A Municipality that defaults in complying with sub-section (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.”
[22] Sec. 44(3) sets out three statutory defences available to a municipality once it has been found liable under ss 44(1) and (2).
“(a) It did not know or could not reasonably have been expected to have known about the sate of repair of the highway or bridge;
(b) It took reasonable steps to prevent the default from arising; or
(c) At the time the cause of action arose, minimum standards established under sub-section (4) apply to the highway or bridge and to the alleged default and those standards have been met.”
[23] The Ontario Traffic Manual (OTM) in its forward states:
“The purpose of the Ontario Traffic Manual (OTM) is to provide information and guidance for transportation practitioners and to promote uniformity in the design, application and operation of traffic control devices and systems across Ontario. Further purposes of the OTM are to provide a set of guidelines consistent with the intent of the Highway Traffic Act and to provide a basis for road authorities to generate or update their own guidelines and standards.
[24] “Every effort should be made to stay as close to the guidelines as possible in situations
like these, and to document reasons for departures for them.”
[25] There is authority for the proposition that there is an obligation on a municipality to inspect its highways to ensure that the highways are in a reasonable state of repair. This obligation has been described as one of “due diligence” with the relevant road authority required to take reasonable steps to eliminate or reduce a danger within a reasonable time after it became aware, or ought to have become aware, of its existence. See Dubois v. Sault Saint Marie 1970 230 (ON CA), [1971] 1 O.R. 462 and Goudie Est. v. Eramosa Township, [1983] W.D.F.L. 1100.
[26] The positive duty to inspect a municipality’s highway to ensure a reasonable state of repair may be enhanced when the nature or character of a roadway and its surrounding neighbourhood have undergone a change. In Deering v. Scugog Township 2010 ONSC 5502, [2010] O.J. No. 4229 at paragraph 155, Howden, J. stated:
“Neither is it the law to reduce the road authority’s duty of reasonable repair to permit wilful blindness by them to such factors as hazards on the road not reasonably noticeable to oncoming traffic during the day or night, unworn changes in the permanent road condition in a prior pattern and expectation, changes in volume and speed and familiarity of users with the road as urban and rural areas impact on each other, and the interaction of such factors on a road historically devoid of any markings, lighting or warning sign. The duty of repair under Section 44 should no longer ignore the need in circumstances of pre-design age roads near areas of urban change and growth to incorporate assessments of safety measures into road rehabilitation and reconstruction projects.”
(Leave to appeal to the Supreme Court of Canada is pending.)
[27] Sharp curves have been held to be hazards. See Vokes v. Vokes [1988] O.J. No. 2556 and Housen. In Housen, Justice Iacobucci agreed with the trial judge’s finding that a curve presented a hazard to the ordinary motorist and that it was open to the trial judge to find that the municipality ought to have been aware of that hazard.
[28] In Deering, Howden, J. observed at para. 149:
“where a municipality finds that road condition that is permanent represents a hazard or danger – in other words, an unreasonable and specific risk of harm – to ordinary users of the road many of whom are not necessarily familiar with the road, and warning of it can be achieved by relatively inexpensive signage or pavement markings or both, the failure to address the danger in a reasonable time may constitute a failure of the municipality to carry out its duty.”
[29] Justice Howden spoke specifically about the municipality’s obligation to sign roadways for those who lack experience. At paragraph 139 of his decision in Deering he stated:
“the duty of repair must include the need for the road authority to consider, as users of the road, the ordinary driver who is reasonably careful for his or her own safety and that of other users of the road who may make mistakes due to inexperience or less than perfect reaction time, or who may perceive the rapidly changing environment, including the road condition, less than perfectly or with no more, but no less, than average acuteness. It is the ordinary driver exercising reasonable care by which the issue of meeting the standard of care is to be judged together with whether there is an unreasonable risk of harm – road based – in existence from which the municipal obligation to repair arises, and if so, whether there are road-based cues reasonably sufficient to warn of the need for caution.”
[30] Failure to comply with a relevant traffic manual has been held to be a failure to meet the required standard of care.
[31] In the trial decision of Johnson v. Milton [2006] Carswell Ont. 4859, the trial judge found that the municipality’s failure to comply with a manual amounted to a failure to abide by the standard of care. At paragraph 82, of his decision Taylor, J. concluded:
“In my view, the Town of Oakville failed to meet the expected standard with respect to signage. As stated previously, it is clear that the right hand turn north of the Glenorchey Bridge could only be negotiated at something less than 28 km/hr. This being the case, according to the Manual of Uniform Traffic Control Devices, the sharp right hand turn sign (WA-1R) should have been installed together with an Advisory Speed Sign indicating in the speed which the turn could be safely negotiated.”
[32] While a manual such as the Ontario Traffic Manual, regardless of actual wording set out in the manual, provides only guidelines, Howden, J. held in Deering that:
“where a road manual is one respected within the road engineering community as the OTM is, and the guideline in question uses the word “must” the Court should approach it in the sense that there should be some compelling reason not to follow it in the circumstances and context within which the transportation engineer is working. This approach would provide some distinction from a guideline reading “should”.”
[33] Rigid reliance on such guidelines by either a plaintiff or a defendant is not determinative of liability, see: Rutherford v. Niekrawietz, [1994] O.J. No. 2439, affirmed 1998 939 (ON CA), [1998] O.J. No. 5001. More recently, it has been held that even when a municipality accepts the standards of a manual by enacting a by-law requiring compliance with those standards they remain guidelines, not a legally enforceable standard. See: Greenhalgh v. Douro-Dummer (Township), 2009 71014 (ONSC) affirmed 2012, ONCA 299.
[34] Evidence of post accident changes cannot be treated as an admission of liability. In MacMaster v. York, [1997] O.J. No. 3928, affirmed 2000 1130 (C.A.) it was held that the fact that a municipality chose to make improvements that included installing additional signs in an area where an accident occurred could not constitute an admission that maintenance of the road was below a reasonable standard on the date of the accident.
[35] The appellate decision in Morsi v. Femar Paving Limited [2011] ONCA 577 is instructive. The Ontario Court of Appeal overturned the trial decision and found that the municipality was not liable for failure to warn of a curve where the driver failed to exercise reasonable care in traversing the curve. The trial judge had found the municipality 25 per cent liable for the single vehicle motor vehicle accident on the basis that a curve warning sign did not accurately portray the degree of the hazard. However, the trial judge further noted that there was ample evidence to demonstrate that the driver’s speed was a significant factor in the collision. The trial judge referred to evidence of the experts and of the investigating officer that if the driver had operated his vehicle at the posted speed, or even a speed modestly above it, he would have been able to successfully negotiate the curve.
[36] On appeal in Morsi, the court held that it was clear from the trial judge’s reasons that if the driver had driven at, or even modestly above the speed limit, or in other words, had used “ordinary care” while negotiating the curve on the road, there would not have been an accident.
Condition of the Road Surface:
[37] Jesse had 4 passengers in his vehicle at the time of the accident, 3 of whom were called as witnesses. Jessica Bibb, 16 at the time of the accident, described the road surface as slushy. She was seated behind Jesse and recalled that he was driving under the speed limit which she knew to be 60 KM/H. In cross-examination, she conceded that at the time she told a police officer that she did not know the speed of the vehicle.
[38] Courtnee Gunther, also 16 at the time of the accident, was also a rear seat passenger. She described the condition of Scenic Drive as having more snow on its surface than the roads they were on before turning on to Scenic Drive. She was under the impression that Jesse reduced his speed on Scenic Drive although, she too conceded that she told a police officer at the time of the accident that she did not know the speed of the vehicle.
[39] Laura Williams, 15 at the time of the accident was a front seat passenger. She remembered that snow was blowing at them while Jesse drove on Scenic Drive. She recalled Jesse saying that if he had his mother’s sedan instead of his father’s SUV, they would be in the ditch. She described Jesse as “a mature kid” and felt that he was driving to suit the road conditions.
[40] OPP Staff Sergeant Shawn Nash was dispatched to the accident scene at 10:32 p.m. and arrived at the accident scene at 10:46 p.m. He noted Scenic Drive to be snow-covered and slowed his speed. He observed that the snow covered the yellow line that marked the centre of the road.
[41] David Bannister was employed by Brant County as a lead hand. He was also a volunteer-firefighter and in that capacity was called at approximately 10:30 p.m. to go to the accident scene. He testified that the trip from his residence took 10 minutes and that when he drove on Scenic Drive over the same portion that Jesse had driven upon, the road was snow-covered and slush-covered.
[42] Paul McConkey, the volunteer fire chief for the district was paged at home at 10:29 p.m. He lived 1 to 2 miles from the accident scene and drove on the same portion of Scenic Drive that Jesse and David Bannister drove on. All three of them therefore were driving on the same portion of Scenic Drive within a very narrow time frame. Paul McConkey observed that it was snowing at the time and that made visibility difficult. When it was suggested to him that the snow could be described as light, he did not disagree.
[43] Given all of the foregoing it must be concluded that there was enough snow and/or slush on the road to enable drivers to note that conditions could be slippery.
Nearby Residents:
[44] Wendy Ashby had resided for 11 years before the accident in the urban-like subdivision reached by turning south on Stoney Brae from the Scenic Drive curve where the accident occurred. She testified that before 2005 she had seen cars slide from the road at the location of the accident, when the road was slippery. In fact, it had occurred with her vehicle. She was unable to say how fast others were driving and she agreed that she had not complained to the County about the road.
[45] Tyler Ashby, Wendy’s son recalled that once or twice per year he had seen cars off the road at the accident location, but had not actually seen them as they moved from the road to that location.
Signage:
[46] A driver proceeding in a westerly direction on Scenic Drive, approaching the accident location, would first observe a yellow diamond-shaped sign that states “Winding Road for 1 KM” located approximately 126 metres before the start of the winding road section. Next, the driver would see a yellow diamond-shaped sign indicating graphically with a “Y” that the driver will come upon a road intersecting from the left on a curve going to the right. This sign is approximately 97 metres in advance of the intersection and 81 metres in advance of the curve. Both plaintiff and defendant provided the court with well-qualified experts to address the signage issue. James Hrycay whose CV is Exhibit 21 was called by counsel for the plaintiffs. Although he has taught no courses on signage he demonstrated a thorough familiarity with the OTM and its predecessor, MUTCD. He has, in earlier cases, been qualified to give expert opinion in civil engineering and road design as well as other fields.
[47] Counsel for the defendant called Brian Malone whose CV is Exhibit 49. Mr. Malone engages in transportation engineering. His expertise includes road design and signage. He has lectured on road signage and has completed road safety audits for municipalities. Recently, Mr. Malone has been involved in working on an update to Book 6 of the OTM which is the portion of the manual that addresses warning signs.
[48] Not surprisingly, the 2 experts differed as to the adequacy of the signage at the time of the accident. Mr. Hrycay was of the opinion that it did not give motorists a proper message as to what lay ahead nor provide sufficient advance warning and, therefore, contributed to the cause of the accident.
[49] Mr. Malone took the view that the 2 signs provided a clear indication of the changes in road alignment consistent with the standard of care required of a municipality. He did, however, concede in cross-examination that the curve sign in place did not give a “clear indication” of the need for a speed reduction.
[50] The most crucial difference between Messrs. Hrycay and Malone is whether or not a tab-type sign indicating an advisory speed of 40 KM/H for the curve should have been in place. This difference arises as a result of tests that each conducted. The test in question is a Ball-Bank Indicator Test that is described at page 23 of Book 6 of the OTM as follows:
“In situations where a speed reduction is required to negotiate a curve. It is important that the indicated advisory speed be both safe and realistic. An advisory speed that is too high compromises safety by impacting vehicle stability, while one that is too low may also compromise safety by lowering driver compliance. If the general driver perception is that advisory speeds can be exceeded by a significant margin without risk, problems may arise where curves are severe and reduced safety margins apply.
Ball-bank indicator tests are the most common, available and practical way of determining advisory speed. When mounted in a vehicle driving along the curve, the ball-bank indicator (see Figure 2) provides a combined measure of centrifugal force, vehicle roll and superelevation (or the bank angle) of the road. The curve advisory speed depends on the angle of the ball-bank indicator reading and the vehicle travel speed. Usually several readings are taken at different speeds until a satisfactory speed-angle combination is obtained. More information on ball-bank indicator testing is provided in handbooks such as the Traffic Engineering Handbook. See Appendix B (References).”
[51] The Ball-Bank Test results provide a reading in degrees. A safe or advisory speed can also be determined by using a formula that is set out in the OTM. The formula enables one to calculate an advisory speed using the same physical principles that apply to a Ball-Bank Indicator Test.
[52] The Ball-Bank Test may now be conducted using digital equipment. Alternatively, it can be completed by using mechanical equipment in a vehicle passing through the curve. Mechanically, the driver ensures a constant speed through the curve while an observer in the vehicle records the readings in degrees. Subtle changes in the as-built condition of the roadway and existing pavement cross-fall can cause variations in the readings.
[53] Mr. Hrycay ran the test 8 times at a speed of 50 KM/H. More than half of the tests resulted in readings of 10 degrees or more. In his opinion that result determined a safe or advisory speed of 40 KM/H. Mr. Malone disagrees. He used the digital version of the Ball-Bank Indicator and did 3 tests with only 1 test result exceeding 10 degrees. He testified that the 10 degree level might be too low a threshold for determining 40 kms to be the safe advisory speed. He suggested that 12 degrees would be more in keeping with modern thinking and referred the court to an engineering handbook indicating that a study in 1999 supported the use of 12 degrees. See Exhibit 37, page 36 and footnote.
[54] Mr. Malone conceded in cross-examination that as far as the OTM is concerned nothing had replaced the curve study relied upon by Mr. Hrycay for his use of 10 degrees as the basis for determining the safe speed to be 40 KM/H. Exhibit 24 includes the curve study relied upon by Mr. Hrycay. At paragraph (b) the curve study states that the maximum tolerable reading for a posted speed limit over 50 KM/H is 10 degrees.
[55] The result of Mr. Hrycay’s tests are to be preferred. He did more than twice as many tests. His use of 10 degrees for maximum tolerance is perhaps more conservative, but it is better supported.
[56] Both experts agree that, if 10 degrees is to be used, a 40 KM/H speed tab sign is required along with an over-sized sharp curve sign and chevron signs along the curve and that both the MUTCD and the OTM would require all three. All three would certainly have been of assistance to Jesse on the night of the accident, but the absence of the speed advisory sign is, in the view of this court, critical.
[57] The court had the opportunity to hear from Carl Gleason, who at the relevant time was the County employee who dealt with road signs. He was not aware of any overall inspection or review of signs by the County after the 1999 amalgamation. He was never involved in any study to determine any advisory speed. Any decision to place a speed advisory sign would have come from his superior as far as he was concerned. He said that he would follow the OTM if he was replacing signs that were damaged or missing.
[58] At the time of the accident, Carl Gleason apparently did not know that the winding road sign did not comply with the Ontario Traffic Manual. Even at the time of trial he was unaware that the “Y” curve/intersection sign did not comply with the OTM. He was not aware that the OTM required chevron signs in addition to any required speed advisory sign.
[59] On 17 November 2004, Mr. Gleason was directed by his superior to place 4 chevron signs on Scenic Drive at a curve which is approximately 1 km. west of the accident curve. That curve is a slightly sharper curve than the accident curve, but we do not know to what extent its “bank” compares with the accident curve. Mr. Gleason conducted no evaluation of that portion of Scenic Drive or for that matter any other portion of Scenic Drive to determine appropriateness of signage.
[60] We do know that in June of 2001 the County commissioned a Roads Needs Study. See Exhibit 6, Tab 5. It appears that the County sought information about the road deficiencies of a number of roads including Scenic Drive. It does not appear as if the evaluator was requested to comment on the adequacy of signage.
[61] We also know that the subdivision reached from the intersection of Scenic Drive and Stoney Brae Drive continued to grow significantly between 2001 until the time of the accident and after the accident.
[62] It should also be noted that pursuant to a request to admit, the County admitted the following:
that the defendant did not conduct any testing to determine the safe speed a motor vehicle can travel on Scenic Drive from 1999 up to the date of the accident;
that the defendant gave no consideration to placing chevron signs along Scenic Drive at the location or near the location of the accident;
that the defendant gave no consideration to replacing the “Winding Road for 1KM” sign from 1999 up to the date of the accident;
that the defendant did not consider the suitability of the posted speed limit on Scenic Drive from 1999 up to the date of the accident;
that the defendant gave no consideration as to whether the “Y intersection” sign located in advance of the accident curve was appropriate for westbound motorists on Scenic Drive from 1999 up to the date of the accident;
that the defendant did not conduct any Ball-Bank studies or other measurement studies on the accident curve from 1999 up to the date of the accident.
Analysis:
[63] The policy of the County concerning replacement of signs was not, strictly speaking, contrary to the OTM guidelines. If the sign was damaged or missing, Carl Gleason would replace it in accordance with the OTM requirements. This gives rise to 2 problems. Carl Gleason was not a sign technologist or adequately trained concerning the requirements of the MUTCD and/or the OTM. In addition, he had no mandate to monitor existing signage to consider whether updates might be required.
[64] A growing urban-like subdivision was creating increased traffic on Scenic Drive. No evaluation of the signage that existed on that rural road took place from amalgamation in 1999 until after 2005.
[65] For some reason, chevrons signs were placed upon a sharper curve than the accident curve, but according to the evidence no consideration appears to have been given to the accident curve.
[66] The policy, the acts and the omissions of the County, resulted in signage remaining in place that:
• allowed drivers to conclude that Scenic Drive and its curves could be safely negotiated at 60 KM/H
• allowed drivers to conclude that the accident curve was something less severe than a sharp curve
• prevented drivers from knowing that a safe speed to navigate the accident curve was 20 KM/H less than the posted speed limit.
[67] The County ought to have known that the curve on Scenic Drive required consideration in the light of OTM requirements. The County would have known that significantly better signs were required on the accident curve if any study had been conducted between the 1999 amalgamation and the accident 6 years later. The County had more than enough time to study and effect compliance with the OTM.
[68] The standard of care of the County seems to have been to wait for a sign to need replacement; to wait for a complaint from a resident, or a report from the police, or to wait for an accident to occur. It can be noted, although not be considered as an admission of fault, that in 2006 a 40 KM/H advisory speed tab-type sign was placed on Scenic Drive for the accident curve and that in 2009 the posted speed limit for Scenic Drive was reduced from 60 to 50 KM/H.
[69] The standard of care of the County was not adequate to protect users of Scenic Drive from non-repair. It allowed sub-standard signage to remain in place for too great a time. It allowed drivers to believe that a curve was gentler than it really was and, most critically, it prevented drivers from knowing that there was a lower advisory or safe speed for negotiating that curve. This court finds that the County allowed Scenic Drive to remain in a state of non-repair. In the circumstances, the provisions of Section 44 of the Municipal Act do not provide the County with a defence.
Causation:
[70] Jesse testified that he had not driven on that section of Scenic Drive before the night of the accident. Passengers in his vehicle recall that he was driving for the road conditions and they believed that he was not speeding.
[71] More scientific evidence concerning Jesse’s speed will be reviewed when contributory negligence is considered.
[72] The signs in place the night of the accident did not allow Jesse to know how sharp the curve he was approaching really was. In fact, the Y sign may well have misled him into believing it was a gentle curve.
[73] In addition to not being alerted to this severity of the curve, Jesse was left uninformed of the need to reduce his speed to 20 kms. less than the posted limited of 60 KM/H in order to safely negotiate the curve. The failure to alert Jesse to the severity of the curve and the need for a substantial speed reduction drives this court to a finding that, but for that failure of the County Jesse could and would have reduced his speed sufficiently to successful negotiate the curve. The failure of the County to exercise a standard of care that maintained Scenic Drive in a state of repair by placing proper signage was a cause of Jesse’s accident.
Contributory Negligence:
[74] In order to make an assessment of the degree, if any, to which Jesse may have contributed to his accident, the court must consider the evidence as to his probable speed. In addition to his passengers, the court has had the benefit of hearing from certain professional and expert witnesses.
[75] Staff Sergeant Shawn Nash was unable to offer any specific evidence of Jesse’s speed. He did, however, reach a conclusion that Jesse was driving too fast for the conditions. He attributed the accident to a combination of driver error due to inexperience combined with poor weather conditions.
[76] James Hrycay was able to be more specific. He calculated the speed of Jesse’s vehicle to be from 58.3 to 66.1 KM/H at the point that it crossed the centre line into the opposite lane and at 48 to 53 KM/H when it started off the road. Counsel for the defendant contended that the speed was greater and points out, quite correctly, that any after-the-fact calculation requires one to make assumptions and determine factors to use as a co-efficient of friction.
[77] OPP Constable David Scott who had been trained as a Technical Traffic Collision Investigator was of assistance on the issue of speed. His CV is at page 91 of Exhibit 5 which includes his report at Tab 3. He arrived at the scene at approximately 12:05 a.m. and was briefed by Constable Shawn Nash. He examined the crush damage to the vehicle, made and supervised various measurements and ultimately determined that the vehicle’s loss of speed was from 44 to 62 KM/H. His analysis is found at page 15 to 16 of his report. He described the movement of the vehicle as follows:
“As the vehicle exited the curve, it crossed to the opposite side of the road, went into yaw, struck the tree, rotated and sustained extensive damage as a result of the collision. Yaw is an indication of loss of driver control. The driver of the vehicle was a novice driver with the 2004-2005 winter being his first winter as a G2 driver. The vehicle was in good condition and road characteristics were not contributors to the collision however, the road surface was slippery and snow covered. Visibility was reduced due to the light wind and snow. Physical evidence observed, supported only the driver was wearing his seatbelt. The extent of damage to the vehicle and injury to the passengers was not consistent with a low speed impact.”
[78] His observations as to speed were as follows:
“Essential elements to calculate speed from yaw marks were missing therefore a slide to stop calculation was done. They show the minimum vehicle speed would have been 44 km/h to 62 km/h to slide to a stop within the given tire mark distance of 25.83m.”
“As stated earlier, the speed calculated of 44 km/h to 62 km/h is a slide to stop. It does not take into account the additional energy required to cause the post impact rotation around the tree and extensive damage to the vehicle.”
[79] Constable Scott concluded that Jesse, a G2 licence driver driving in his first winter, would not have had a lot of snow experience and would not have known that he needed to drive slower. He felt that the vehicle could not have been travelling at a low speed when Jesse lost control of it. In cross-examination Constable Scott conceded that because he did not take into account the energy loss as the vehicle actually “wrapped” around the tree, his estimate of loss of speed could be conservative.
[80] On all of the evidence, it appears that if Jesse was driving in excess of the 60 KM/H posted speed limit, he was not driving significantly above that limit. There is, however, a duty on motorists to adjust their driving and speed according to road and weather conditions. Jesse knew the road was snow-covered and may even have adjusted his speed downward. He knew from the signs in place that the road was winding and that a curve lay ahead.
[81] If Jesse had been a more experienced winter road driver, it is more probable than not that he would have been driving more slowly for the road conditions and alignment. He must, therefore, share in the responsibility for the cause of the accident.
Apportionment:
[82] While signage cases involving drivers and municipalities have a very broad range of apportionment, some similar to the present case have a range of 40 to 50 per cent for a driver’s portion. I would therefore fix the plaintiffs’ portion at 45 per cent, leaving 55 per cent for the defendant.
Judgment:
[83] The plaintiffs shall recover from the defendant for 55 per cent of the sum already agreed for damages.
Judgment accordingly.
Costs:
[84] If counsel are unable to agree as to costs or if there are offers that bear on the issue of costs, counsel may contact the trial coordinator at Brantford to arrange a date to speak to the matter.
KENT, J.
Released: 18 January, 2013
COURT FILE NO.: CV-07-184
DATE: 2013/01/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JESSE FERGUSON, SHERRY FERGUSON, MARK FERGUSON and TYLER FERGUSON by his Litigation Guardian, Sherry Ferguson
Plaintiffs
- and -
THE CORPORATIONOF THE COUNTY OF BRANT
Defendants
REASONS FOR JUDGMENT
KENT, J.
Released: 18 January, 2013