Chen v. Toronto Transit Commission

COURT FILE NO.: CV-08-00358443-0000

DATE: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JIAN CHEN JR., a minor by his Litigation Guardian, Ai Ying Yu and Al YING YU, YI LIN CHEN and LONG QIONG HE

Plaintiffs

– and –

TORONTO TRANSIT COMMISSION and ANTONIO MICCIO

Defendants

AND B E T W E E N:

TORONTO TRANSIT COMMISSION and ANTONIO MICCIO

Plaintiffs by Counterclaim

• and –

YI LIN CHEN and LONG QIONG HE

Defendants to the Counterclaim

Counsel:

Mark Elkin, Andrew Suboch & Stephanie Fell, for the Plaintiffs

J. Thomas Curry & Stephen Sargent, for the Defendants

Chad Townsend & Tamara Broder, for the Plaintiffs by Counterclaim

Thomas H. Percival & Jennifer Vrancic, for the Defendants by Counterclaim

HEARD: Sept. 23, 26-27, Oct. 8, Dec. 9-13, 16-20, 2013; Jan. 9-10, Mar. 17 & 26-28, 2014

LEDERER J.:

INTRODUCTION

[1] The plaintiff, Jian Chen Jr., was four-and-a-half years old. On October 14, 2004, he spent the day with his mother at a store operated by his parents. The store is located, in Toronto, at 267 Gerrard Street East, between the intersections of Broadview Avenue to the west and DeGrassi Street to the east. At the end of the day, as his mother was closing the store, Jian Chen Jr. ran across Gerrard Street, apparently towards the car of a family friend, who Jian Chen Jr. knew as an uncle. As might be expected of a four-year-old, as he crossed the road, Jian Chen Jr. was oblivious to everything that was going on around him. He ran from the south curb, across the eastbound lanes and into the path of a westbound streetcar owned by the defendant, Toronto Transit Commission (the “TTC”), and operated by the defendant, Antonio Miccio (also referred to as the “operator”). The streetcar struck Jian Chen Jr., who was injured.

[2] In his opening submissions, counsel for the defendants referred to this incident as a collision rather than an accident. In his view, accidents have causes with fault to be attached. This is not necessarily the case. An accident can be defined as: “an unfortunate event esp. one causing injury or damage”. It may also be “an event that is without apparent cause or unexpected”.[^1] Either way, when something unfortunate happens, there is a tendency to seek out someone to blame. There isn’t always. With this in mind, I have opted, in these reasons, to refer to this as a collision.

[3] As a result of the collision, an action was commenced, on behalf of Jian Chen Jr., naming as defendants, the TTC and Antonio Miccio. The other plaintiffs, each of whom makes a claim under the Family Law Act, are Ai Ying Yu, the grandmother of Jian Chen Jr., Yi Lin Chen, the father of Jian Chen Jr., and Long Qiong He, his mother. In response to the action brought against them, the TTC and Antonio Micchio brought a counterclaim against the mother and father of Jian Chen Jr. seeking contribution and indemnity, essentially for their failure to properly supervise their son. As it became known that, on the day the streetcar struck Jian Chen Jr., his father was away in China on business, the counterclaim, as against the father, did not proceed. Pursuant to an agreement between the parties, dated September 20, 2013, and approved on behalf of the Court by Mr. Justice John Macdonald, the counterclaim against the father was marked “settled” except for costs, which were left until after the decisions with respect to liability in the action and counterclaim against the mother were made. The agreement, which was arrived at as part of a pre-trial conducted by Mr. Justice Macdonald, allowed for the trial to be “trifurcated”, that is, considered in three parts: each to be followed by a decision. The first part was to consider the liability of the defendants in the main action; the second (if necessary) would determine any liability of the mother on the counterclaim and the third (if required) the assessment of damages. The first part (liability in the main action) was set to be heard, beginning on September 23, 2013; the second (the counterclaim against the mother) on a date to be set by the court, which was to be after December 13, 2013. The date for any assessment of damages was not referred to in the agreement and was, presumably, to be set a reasonable period of time after any decisions as to liability had been released.

[4] As the first part of the trial was about to get under way, it became apparent that it could not proceed as had been agreed to and endorsed by Mr. Justice Macdonald. In short, counsel for the plaintiff understood the issue of any liability of the mother to be a discrete and separate issue from that of any liability of the defendants in the main action. It became apparent that counsel for the TTC did not agree. A witness that counsel for the plaintiffs understood had nothing to contribute, and was not to be called to testify, was to be relied on by the TTC and Antonio Miccio to connect the liability of the mother to the allegations made against them. Moreover, in an effort to connect the liability alleged against the TTC and Antonio Miccio to that alleged against the mother, counsel for the TTC announced his intention to call all the evidence, as to liability in respect of both the main action and the counterclaim. The effect was that the agreement between the parties became unworkable as a means to organize the conduct of the trial. As a result, the trial was adjourned to December 13, 2013, at which time evidence was to be heard and a decision made as to liability, both of the main action and the counterclaim. It commenced on that day. This is the decision with respect to that portion of the trial.[^2]

BURDEN OF PROOF

[5] The parties agree that s. 193(1) of the Highway Traffic Act[^3] applies. It provides:

When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

[6] Section 193(5) confirms that the term “motor vehicle” includes a streetcar and that an “operator” includes the person responsible for the operation of a commercial motor vehicle.[^4]

[7] The impact of this is to “reverse the onus”. It is not necessary for the plaintiff to prove that the defendant was negligent. It is not incumbent upon the plaintiff, proceeding under this provision of the Highway Traffic Act[^5], to plead or otherwise allege negligence for the reason that the law presumes negligence in his favour and the burden of rebutting the presumption lies entirely with the defendant.[^6] The plaintiff need only prove that the collision occurred and that the collision caused the damage. The defendant operator is presumed negligent unless proven otherwise. An operator (or driver) must establish that he or she acted reasonably and properly in the circumstances.

[8] The parties also acknowledge that should any liability be found against the defendants in the main action, they will be liable to Jian Chen Jr. for the full amount of the damages he has suffered. If the decision on the counterclaim finds that the mother shares some part of the fault, the measure of that liability will be the basis for a calculation of the value of the share of the damages the defendants may recoup from the mother. The defendants will remain liable to Jian Chen Jr. for the full value of his damages.[^7]

TAKING A VIEW

[9] At the outset of the trial, counsel for the defendants brought a motion requesting that the court “take a view” of the location where the collision occurred, the interior of the operator’s cabin and the exterior of a streetcar of the type involved in this incident. The plaintiffs opposed the motion. After hearing submissions from both sides, a ruling was made dismissing the motion. More formal reasons were requested and it was understood they would be included here.

[10] The taking of a view, in civil matters, is unusual, but it is provided for in The Rules of Civil Procedure by rule 52.05[^8]:

The judge or judge and jury by whom an action is being tried or the court before whom an appeal is being heard may, in the presence of the parties or their lawyers, inspect any property concerning which any question arises in the action, or the place where the cause of action arose.

[11] A decision to take a view is a matter of discretion of the trial judge. It has long been understood that the taking of a view is “in order to understand better the evidence” and not to be relied on as evidence.[^9] There is an inherent concern that the taking of a view could prejudice one side or the other. On the taking of a view, no one can know how a judge interprets what he or she sees. In Truster v. Tri-Lux Fine Homes Ltd.[^10], this was given adherence when the court dismissed a motion that a view be taken as a result of the plaintiff opposing the motion and because of the reservations expressed about possible prejudice.[^11] In this case, it is not necessary to go that far. Insofar as taking a view of the location is concerned, it was pointed out that the collision took place in 2004, which is to say, nearly ten years ago. In the interim, the area in which the collision took place has changed. Businesses on Gerrard Street East have changed, some have closed and new ones opened. The Don Jail, which was located at the north-west corner of Broadview Avenue and Gerrard Street East, the intersection immediately to the west of the collision, has become Bridgepoint Hospital. As a result, the lighting will not be the same. The scene to be viewed will not be the scene of the collision.

[12] In my mind, a view of a similar streetcar, ten years hence, bears the same risk. It will be different. In this case, there were photographs of the streetcar, both its exterior and the interior view of the operator’s cabin as it appeared on the night of the collision. These are a more reliable representation of what was seen and present on October 14, 2004.

[13] A view should reflect the area or item as it was when the collision (or accident) occurred; otherwise, it would be of little probative value but hold great potential for prejudice.

[14] For these reasons, the motion was dismissed.

FACTS

[15] Gerrard Street East, between DeGrassi Street and Broadview Avenue, is located in downtown Toronto. It is an urban setting. The photographs produced in evidence show a four- lane road, two eastbound and two westbound. The curb lanes, both north and south, are available for parking throughout the day. As a result, except late at night, there is one travelled lane in each direction. Those two lanes, one eastbound and one westbound, each contain streetcar tracks. Automobiles and streetcars share the two lanes. There is a yellow centre line dividing the two sides of the road and white lines separating the curb and travel lanes. The travel lanes are, for the most part, concrete. As the curb lanes are approached, from the travel lanes, the surface is asphalt, as it remains through to the curb. As of October 14, 2004, the streetcar tracks had been recently replaced. The surface of the road was freshly paved. Each side of the road has a sidewalk, lined with low-rise commercial outlets, generally small retail stores and restaurants. The photographs show the presence of some residential development.[^12]

[16] The collision occurred on October 14, 2004 at 8:18 pm.[^13] It was dark; visibility was good.[^14] It was clear and dry. The area was lit, both by street lights and the neon signs associated with many of the commercial enterprises that line the street. The last stop, before the accident, was DeGrassi Street. The next one would have been Broadview Avenue. There are no traffic lights between them and no stop signs. There is a cross-walk at DeGrassi Street, but no others before Broadview Avenue. In this location, Gerrard Street is flat and straight.

[17] As the operator recalled, at the time, there were cars parked on both sides of the road. As he approached mid-block, immediately before the collision, there was no traffic, in either direction. He did not recall seeing any pedestrians on the sidewalk. As he proceeded, the operator was looking ahead and “scanning” the scene in front of him. He checked the mirrors. His vision was not fixed on a single point in front of him. The view was clear. There is no programmed observation pattern to be followed by streetcar operators. They seek a general appreciation of what is happening in order to be able to respond to any and all events. The posted speed in this area was 50 km/hr., but the practical range for a streetcar was 35 to 40 km/hr. and this is the speed the operator recalled the streetcar was travelling at as it approached the scene of the collision.

[18] In the moments before the collision, nothing unusual occurred. There was nothing that attracted the attention of the operator of the streetcar until he became aware of Jian Chen Jr. He first saw the child in his peripheral, not his direct, vision. Jian Chen Jr. was on the south side of the street. He was not on the sidewalk. He was on the road. He was clear of, that is to say, north of, the cars parked on the south side of the road. He was north of the space between two cars that were parked on Gerrard Street. He was on asphalt; he was not so far north that he had reached the concrete.[^15] The child was running. His upper body was tilted forward. He was running straight across the street. He was looking straight ahead.

[19] In his direct evidence, the operator said it was difficult to estimate the distance between the child and the streetcar. They were both moving. In response to cross-examination, he estimated his distance from the child, when he first saw him, as 5 metres. When he was reminded that, during an examination conducted on October 26, 2010, he had said this distance was less than 5 metres, he said it was hard to estimate. It could have been less. As the operator turned his head in response to what he had seen in his peripheral vision, the child was between the two eastbound streetcar rails.

[20] It was the evidence of the operator that, as soon as he saw the child, he knew the streetcar would hit him. The operator yelled “no” and braced himself for the collision.

[21] As it was explained by the operator, the braking system on a streetcar is complicated. It consists of three separate mechanisms which can be activated. The first is an electro-dynamic or magnetic brake. This is the main braking system used as a streetcar covers its route. It is activated by pushing down on the brake pedal. The second brake is a disc brake, similar to many cars and trucks (discs clamp on the track and the ensuing friction slows down the vehicle). This brake comes on automatically if the brake pedal is pushed down for a long enough period of time. The third brake was referred to, throughout the trial, as the “track brake”. A bar drops to the track to increase friction. This mechanism is engaged if the operator pushes hard enough on the brake pedal. In an emergency, if the brake pedal is pushed to the floor, it will displace sand which is otherwise held in the streetcar. The sand will fall on the streetcar track increasing traction. There is a second means of triggering the emergency mechanisms, including the release of the sand. As a precautionary measure, the operator has his, or her, left foot on another pedal, the “interlock pedal”. If the foot is lifted off the pedal, the emergency braking is initiated. Presumably, this is a protection in the event that an operator is suddenly unable to continue (say through a heart attack or other difficulty). While the literature available to operators makes note of this option,[^16] it was the evidence of this operator that, in practice, this means of causing the emergency braking system to come on was not relied on.

[22] In this case, as the operator recalled, he went directly to the track brake, but did not push the pedal to the floor, suggesting that the sand was not displaced. His reason for this was that he was not able to get the brake to engage before the collision occurred. He was questioned about this. In the end, he was uncertain as to whether his foot touched the brake before the collision. At the time, he just reacted. When the brakes engaged, he felt immediate traction; there was no sliding or spinning. The brakes were working well.

[23] The child ran in front of the streetcar. He was struck by it, somewhere on the right half (the north half) of the front of the streetcar. On a drawing prepared by the operator, the day after the accident (shortly after midnight on October 15, 2004), this is shown as substantially past the middle of the front of the streetcar.[^17] (The drawing is an approximation. Counsel for the child referred to this as the “extreme right”). On the other hand, on Collision Field Notes prepared between 21:45 and 22:30 on October 14, 2004 (which is to say, about two hours earlier), the operator wrote that the contact “…with the child [was] on the front skirt [of the streetcar] slightly towards the open [the right] side”.[^18] There were markings on the streetcar, but none was definitively identified as demonstrative of where the child was struck. The impact propelled the body of Jian Chen Jr. to the west and north. He was found near cars parked on the north side of the road. The operator said he was partially between two parked cars.

[24] After the collision, the operator brought the streetcar to a stop a short distance to the west of the point of impact. The operator got out and went to the child. He returned to the streetcar and contacted emergency personnel at the TTC. He went back to the child, who was being attended to by a young woman. This was subsequently identified as Melanie Scrofrano, who was a witness at the trial. She was aware of the collision as it was taking place. She heard the streetcar “screeching”, but saw it only after it had stopped. The operator was told by the police to move the streetcar to make way for the emergency vehicles. After the emergency personnel arrived, he went back to the streetcar.

[25] There are some uncertainties that arise from the evidence of the operator. He was unable to be clear as to the distance that separated the child from the streetcar when he first saw the child. The question of where, on the streetcar, the impact with the child took place was not clearly demonstrated. It bears observing that this would not have been within the field of vision of the operator. It would have been blocked by the dashboard and console of the streetcar. As he scanned his field of vision in the moments leading up to the accident, the operator could not recall seeing many, or any, pedestrians on the sidewalk. After the accident, he was interviewed by a police officer. He was asked if the sidewalks were busy. He said: “…it was busy”.[^19] He explained this by saying his answer to the question when asked by the police officer reflected the situation after, not before, the accident. At the time he was asked the question, the sidewalks were busy. Before the accident, they were not. Counsel for the child was concerned that the estimate of the speed the streetcar was travelling at just before the collision, as provided by the operator, was not reliable. Could it have been faster? In preparation for a summary judgment motion, the operator had been cross-examined. At that time, the operator had conceded the streetcar could have been travelling at 41 km/hr. At the trial, the operator, relying on his years of experience, maintained that the proper range was between 35 and 40 km/hr. He explained his earlier concession. He was not used to being cross-examined. He was unprepared for the aggressive tone. At trial, the operator did not feel he could agree to a higher speed.

[26] The operator, Antonio Miccio, was a credible witness. There was nothing to suggest he did anything but provide his best recollection of what took place. There was nothing to suggest that he exaggerated, hid information, obfuscated or attempted to mislead the court.

[27] The most important statement made by the operator was that he realized from the moment he became aware of the child that the collision was unavoidable. Despite some suggestion, through the trial, that the operator might have been tired or inattentive and, thus, did not become aware of the child as quickly as he should have, there was no evidence that sustained this idea. To the contrary, it seems that the child was intent on running across Gerrard Street. When the operator first saw Jian Chen Jr, he was already running. He had come out from between two parked cars. There was no eye contact between them. There was nothing to indicate that, at any point, the child was aware of the presence of the streetcar. Counsel for the defendants pointed out that across the street, in a car that the child was familiar with, sat a close friend and relation of the family of Jian Chen Jr. This is the man the child understood to be as an uncle. The friend was there, waiting for the child and his mother. He had undertaken to the father of the child that he would help them while the father was away. Counsel for the defendants submitted that the child was running to the car he saw and knew. This is something we can never be certain of. The friend did not see the child running across the road. Even without this, the evidence does not support the idea that the operator, acting as a reasonable operator of a streetcar, could have, much less should have, seen the child any sooner than he did.

[28] With this, the statement made by the operator that the collision could not be avoided became the central proposition in the trial. If the collision could not be avoided by the operator, then there would be no liability to be assessed against him or his employer, the TTC. Does the evidence otherwise provided corroborate or contradict this understanding?

ANALYSIS

Detective Constable Laurence Dallimore

[29] The first witness to consider the question was Detective Constable Laurence Dallimore. He is designated by the Toronto Police Service as an “accident reconstructionist”. He went to the location on the night the collision occurred, arriving at 10 pm. Detective Constable Dallimore examined the scene. He got down on his hands and knees to look closely at the streetcar tracks. There was sand on the rails. The sand demonstrated that, contrary to the evidence of the operator, the emergency braking system had been engaged. Detective Constable Dallimore marked where the emergency brake had come on. In his evidence, he said that he did this with two small plastic cones[^20]. A police hat was placed on the road and is present in some of the photographs[^21]. In his direct examination, Detective Constable Dallimore was uncertain of its purpose. He suggested it could indicate the point of impact (the point where the streetcar struck the child) or where the presence of sand indicated the emergency braking system had come on. During cross-examination, he remained uncertain as to the purpose of placing the hat on the ground or, in fact, whether it was his hat. In the end, nothing turns on this uncertainty. The hat and the cones were close together. There was no question as to the purpose of the placement of the cones.

[30] In his report[^22], Detective Constable Dallimore noted that:

The crushed grains of sand started just east of the final resting position of the child. The crushed sand deposits proceeded under the involved stopped streetcar. These sand deposits were consistent with the streetcar going into an emergency brake application and sand being deposited on the rails ahead of the front wheels and being ground under magnetic rail or track brake.[^23]

[31] Having completed his investigation of the location of the collision, Detective Constable Dallimore undertook a “time/distance calculation” to determine the time it would have taken the child to run from where he was first observed by the operator to the point of impact. This was compared to the time it would take for the streetcar to stop. Where facts were unknown or could not be measured and assumptions were necessary, a range of possible values was selected. Detective Constable Dallimore calculated that the child was on the travel section of the road surface for a range of time from 1.95 to 4.6 seconds.[^24]

[32] To complete these calculations, the Detective Constable used a range representing the distance the child would have travelled from the moment he was seen by the operator to the point of impact. “The distance from the south curb of Gerrard Street East to the area of impact, being near the centre of the westbound lanes was determined to be approximately 9.2 meters [sic]. However the child would be visible only for about 7.7 meters [sic] due to the parked cars on the south side of Gerrard Street East.”[^25] Detective Constable Dallimore used both distances. There was no evidence that suggested that the child could have been visible to the operator at any time before he came out from between two parked cars.[^26] Relying on 7.7 metres as the distance the child would have travelled from the moment he was seen by the operator to the point of the collision, Detective Constable Dallimore calculated that the child was on the travel section of the road surface for a range of time from 1.95 to 3.85 seconds.

[33] As part of this work, it was necessary to calculate the time that it took the streetcar to stop. This was “determined” to be 18.5 metres[^27]. The coefficient of friction between the sliding steel wheel and the railhead was assumed to range from .25 to .30.[^28]

[34] Detective Constable Dallimore applied these numbers to an equation:

S = 15.9 x √(d x fn)

Where:

• “S” is speed;

• “d” is distance (being 18.5 m.); and,

• “fn” is the coefficient of friction (being first .25 and second .30).

[35] The value “15.9” was not discussed in the report prepared by the Detective Constable, but appears to be the factor by which the calculation of speed is converted to kilometres per hour (km/ hr.).

[36] On this basis, Detective Constable Dallimore calculated the speed of the streetcar to range from 34 km/hr. (where the coefficient of friction is assumed to be .25) and 37 km/hr. (where the coefficient of friction is assumed to be .30). This is somewhat slower than the operator estimated (35 km/hr. to 40 km/hr.). Detective Constable Dallimore calculated the time it would take the streetcar to stop at these speeds. The times were 3.87 seconds to 3.53 seconds.

[37] In his evidence at the trial, Detective Constable Dallimore provided his conclusion. The driver could not have avoided the collision with the child.[^29] The streetcar could not have stopped before it struck the child.

[38] The position taken on behalf of Jian Chen Jr. was that it would have taken very little to avoid the accident. As his counsel sees it, the point of impact was to the “extreme right”[^30] of the front of the streetcar. If the streetcar was a very short time slower in arriving at the point of impact; if the streetcar was not going as quickly as assumed; had the streetcar slowed down more quickly; or if the driver had engaged the brakes sooner, there might have been enough time for the child to move past the streetcar, avoiding the collision.

[39] There is an issue as to whether the child ran straight across the street or at an angle. This depends, in part, on which of two sets of parked cars he ran between to get to the travelled portion of the roadway. Was it the pair immediately in front of the store operated by his parents or the two cars just to the west? This reflects on where his route across the road began. The answer to this question also depends on where the child was going. Was he running to the car in which the family friend was waiting? Where was he when he was struck by the streetcar? None of these questions can be answered definitively, but the operator said and Detective Constable Dallimore accepted that the child went straight across the road. It is what is depicted on the Motor Vehicle Accident Report prepared by the investigating officer on the night the collision took place[^31] and the Collision Field Notes of the same officer.[^32] This indicates a shorter run, across the road, both in distance and time. If the child took a longer route, taking up more time, it would be less likely that the child would get past the front of the streetcar without being hit. This accepts that the operator could not have seen the child any sooner.

[40] For Detective Constable Dallimore, there was no data available outlining the expected running speed of a four-year-old boy. The chart he relied on reported on testing for running males and females from 5-12 years old. It seems likely that a child of five or older would be anticipated to run faster than he or she would have run the year before. There was no evidence to suggest that Jian Chen Jr. was of a height, weight, gait, stride length and overall coordination that would have meant he could run faster than a typical four-year-old, increasing the possibility of his getting beyond the path of the streetcar before it arrived.

[41] The operator estimated that the streetcar was moving at 35 to 40 km/hr. Detective Constable Dallimore calculated a lower range of speeds, from 34 to 37 km/hr. If the streetcar was going faster than the calculations made by the Detective Constable suggest, it would have arrived at the point of impact more quickly, making it less likely that the child would have run by before the streetcar arrived.

[42] Finally, the calculations of Detective Constable Dallimore assumed that the braking of the streetcar would have begun at the moment the child was first seen by the operator. As will become clear, there was a great deal of evidence to demonstrate that this is not possible. It takes time for an operator to identify a hazard and react to it (perception-reaction time) and a further period for the braking system to engage after the operator has depressed the applicable peddle (lag time). This additional time confirms that, based on the work done by Detective Constable Dallimore, it was not possible that the child could have moved past the path of the streetcar before it arrived at the point of the collision.

[43] The calculations and evidence of Detective Constable Dallimore do not detract from, but stand to confirm the statement of the operator that, for him, the collision was unavoidable.

Neil Bigelow

[44] Neil Bigelow is also an expert in accident reconstruction. He arrived at the same conclusion as Detective Constable Dallimore. In summary, he found that the time it would have taken the child to run from the place he was first seen by the operator to the point of the collision was shorter than the time it would have taken the brakes on the streetcar to begin to affect the speed at which it was travelling. The child would have arrived at the point of the collision before the brakes began to slow the streetcar down. On this basis, like the Detective Constable, Neil Bigelow found that the accident was unavoidable.

[45] By the time the investigation got under way, the cars that had been parked along the south side of road had been removed. Their locations (front and back) had been marked by orange paint. The models of these cars were not recorded and are not known. Neil Bigelow considered the dimensions of a smaller car (Honda Accord) and a larger one (Ford Crown Victoria). He established their widths as extending from 1.73 metres to 1.98 metres and height from 1.4 to 1.45 metres. He checked this against a growth table to account for the height of a four-year-old child. He determined this to be 1.4 metres. He concluded that Jian Chen Jr. could not have been seen by the operator while he remained in between two parked cars.

[46] Neil Bigelow analyzed the distance the child would have travelled had he proceeded straight across the road and not at an angle. He calculated the distance from just north of the parked cars (where the child could first have been seen) to the point of the collision as being from 5.7 metres to 6.0 metres. He noted that cars do not park right against the curb, there is a separation of about .3 metres between the car and the edge of the sidewalk[^33]. On this basis, the distance from the curb to the north edge of the parked cars would range from (1.73 + .30) 2.03 to (1.98 +.30) 2.28 metres. From these calculations, Neil Bigelow selected a distance of 2 metres as representing this distance. Assuming that the child made contact with the right side (the open side[^34]) of the front of the streetcar, the distance from the south curb to the point of the collision would have been within 7.7 metres to 8.0 metres. From this, the distance travelled by the child from the point he was visible to the operator to the collision would have been from (7.7 and 8.0 minus 2.0) 5.7 to 6.0 metres, the distances used by Neil Bigelow[^35]. He observed in his report that this is close to, and consistent with, the statement of the operator that, when first seen, the child was 5 metres from the streetcar.[^36] Neil Bigelow noted that Detective Constable Dallimore appeared to measure the distance from north of the parked cars to the point of impact as being 7.5534 metres.[^37] In the calculations in his report, and in his evidence, the Detective Constable used a distance of 7.7 metres.[^38]

[47] Neil Bigelow considered the difference. A small part is accounted for by the .30 metre from the curb to the parked cars. This was not part of the measurement demonstrated by Detective Constable Dallimore. The distance used by the Detective Constable was also somewhat longer because, as shown on the diagram he prepared, it was measured at an angle and not as a direct path across the road.[^39] It should be said that these factors do not fully explain the difference in the distances used in the two analyses. Neil Bigelow indicated, that this difference does not affect his ultimate conclusion that the collision was unavoidable.

[48] Another factor in the assessment of the distance the child would have travelled on the roadway is the part of the streetcar that struck the child. Neil Bigelow does not accept that this was to the extreme right of the streetcar, as posited by counsel for the plaintiffs. He believes the location of Jian Chen Jr., after the collision, and the direction the child would have moved from impact to that placement, was indicative of a direct, and not a glancing hit. After the impact, the child “…fell down to the road surface north of the streetcar tracks and south of parked motor vehicles occupying the westbound curb lane”.[^40] Indirect impact would have thrown the body of the child in a more northerly and less westerly direction. What occurred is consistent with a collision that was closer to the centre of the front of the streetcar which is flatter and not to the “extreme right” which is more rounded. This suggests that the distance travelled by the child was somewhat shorter than that used by Detective Constable Dallimore.

[49] During the trial, very little was said about the injuries suffered by Jian Chen Jr. They were touched on during the cross-examination of Neil Bigelow. The injuries were to the child’s right side: to his liver which was bruised, his right lung and his right hip. None of the injuries were to his back. To Neil Bigelow, this was an indication that the child was running straight north and not at an angle. I do not put much weight on this evidence. It is not clear to me what it was based on. Neil Bigelow had not seen the medical information and it was not established that he had the expertise necessary to draw these conclusions. I note that he agreed with the recollection of the operator, the drawing on the Motor Vehicle Accident Report and the conclusion of Detective Constable Dallimore, all of which said that the child ran straight, at a 90^0^ angle, across the road, the shortest distance.

[50] Neil Bigelow also considered the speed at which the child would have been moving as he crossed the road. Results of studies by J. Eubanks showed that a four-year-old male will have a running pace of 3.01 to 3.81 metres per second.[^41] Studies published by the Institute of Police Technology and Management showed a five-year-old male had a running pace equal to 2.95 to 4.0 metres per second. In his report, Neil Bigelow opined that the numbers “… accord well with the Eubanks data but was for a slightly older male.”[^42]

[51] Accepting the data from the work of J. Eubanks, it would have taken the child from 1.50 seconds[^43] to 1.99 seconds[^44] to cover the distance from the point where the operator could first see the child to the point of impact (as calculated by Neil Bigelow, this would be 5.7 to 6.0 metres).

[52] Neil Bigelow addressed the question of how long it would reasonably have taken the operator to engage the braking system of the streetcar. He pointed out that the driver of a vehicle, any vehicle, in this case the streetcar, does not respond instantaneously to a hazard such that the brakes begin to slow down the vehicle immediately upon the operator’s awareness of it. It takes time to see the hazard, recognize that it is a hazard, decide what to do and act. “The driver hazard perception consists of four primary phases: namely, detection, identification, decision and response. Initially, the streetcar operator had to detect and identify the pedestrian as representing a potential collision hazard. Then, the streetcar operator had to make the decision that the pedestrian represented a hazard to his westbound path of travel and to react to the conflict created by the movement of the pedestrian.” Neil Bigelow referred to this as “driver hazard perception and reaction time”.[^45]

[53] The operator had to complete the necessary hazard perception and reaction before he could be expected to act to avoid the collision by braking or by using whatever other options may have been available to him.

[54] In his report, Neil Bigelow referred to a variety of studies directed to determining the length of time it would take a driver or operator to respond to emergencies or other stimuli. For the most part, he identified this work by the names of the authors of the studies.[^46] Two authorities were referenced to by their titles.[^47] As noted by Neil Bigelow:

• Eubanks showed that driver hazard perception and reaction is typically completed over a time of 1.5 to 2.5 seconds. Routine driving situations, where the driver is fairly fresh and alert should consider a time closer to 1.5 seconds.[^48]

• Summala provided results that showed average driver response time as 2.5 seconds. Most responses occurred between 1.5 to 4.0 seconds. The latter for an unexpected problem encounter on the road.[^49]

• Allen reported that reaction time for a motor vehicle driver, in normal highway traffic, was about 1.64 seconds when faced with a clearly visible hazard. He concluded that 90% of all drivers will respond in 2.5 seconds.[^50]

• Olson suggested that a readily identifiable hazard, that first appears nearly directly in front of a driver, and assuming the driver is looking more or less in the direction of the event when it first becomes visible and further assuming a fairly straightforward situation and minimal time to respond, about 85% to 95%, of drivers, will respond by about 1.5 seconds after the first appearance of the object of concern. In his evidence, Neil Bigelow reported that for reasonably straightforward occurrences such as approaching stopped traffic or when a green light turns amber Olson presented a perception reaction time up to 1.64 seconds. Where there are routine diversions of the driver’s visual attention from straight ahead, the time taken up by perception and reaction should be increased from 2.5 to 3.0 seconds.[^51]

[55] From this literature, Neil Bigelow concluded that any assessment of the range of the possible time taken up by perception and reaction should begin at 1.5 seconds. More complex driving situations require longer perception and reaction times. Neil Bigelow outlined a number of factors that would serve to expand the expected perception and reaction time of the operator in this case:

• nighttime, when it is dark, would lengthen perception and reaction time over daytime when it is light;

• if the stimulus is small (a four-year-old child) the perception and reaction time will take longer than for a larger stimulus (a full-grown man);

• where the appearance of the pedestrian running across the road is unexpected: here the child appeared mid-block, from behind parked cars, where there was no streetlight or cross-walk; and,

• where the stimulus, in this case the child, first appears within peripheral, rather than direct, view[^52].

[56] From this review, Neil Bigelow concluded that “...[u]nder the prevailing driving conditions the streetcar operator required at the least 2.0 to 2.5 seconds to complete hazard perception and reaction time.”[^53]

[57] In the circumstances, Neil Bigelow believes that 2.5 seconds is the appropriate time period to be assessed as perception and reaction time.

[58] After the operator has perceived the hazard and reacted, in this case by applying the brakes, there is a further lag before the brakes engage and begin the process of slowing down the streetcar and bringing it to a stop. This takes from one-third to two-thirds of a second. For the purposes of his evidence, Neil Bigelow assessed the applicable lag time at .3 seconds.

[59] What is evident from this analysis is that by the time the braking system of the streetcar was engaged (2.3 to 2.8 seconds), the child would have already run from where he was first observed by the operator to the point where the collision occurred (1.49 to 1.99 seconds). On this basis, Neil Bigelow concluded that the collision was unavoidable.

[60] This conclusion would not change even taking into account the longer distance the child would have had to run, as proposed by Detective Constable Dallimore. From the point where the child was first observed by the operator (north of parked cars) to the point of the collision, this was 7.7 metres. This would extend the length of time it took the child to run to the point of the collision. It would have taken the child from (7.7 metres divided by 3.81 metres per second) 2.02 seconds to (7.7 metres divided by 3.01 metres per second) 2.55 seconds. Taking the perception and reaction time at 2.5 seconds, the length of time preferred by Neil Bigelow, and adding the .3 seconds for lag time, it is apparent that the braking system still would not have been engaged at the point of the collision. It should be said that if the perception and reaction time is taken to be 2.0 seconds, the lower end of the range identified by Neil Bigelow as applicable in this situation, and .3 seconds is added for lag time, the braking system would engage .25 seconds before the child arrived at the point of impact. For this to effect the conclusion of Neil Bigelow, it would be necessary for the court to find that the decrease in the speed of the streetcar that would occur in the first .25 seconds after the brakes were engaged would be sufficient to allow the child to move past the streetcar and avoid the collision. To come to this conclusion, the court would be required to find, on a balance of probabilities, that the longest distance the child would travel (as identified by Detective Constable Dallimore), the slowest speed at which the child could be expected to run and the fastest perception and reaction time (as identified by Neil Bigelow) should be applied. If the child was running at the slowest speed, in .25 seconds, he would have travelled (.25 seconds x 3.01 metres) .752 metres. To avoid the collision, travelling this distance would have to have taken him past the edge of the streetcar. The streetcar was 2.5 metres wide. Given that his entire body would have had to move .752 metres, it is clear he would have to have passed by ¾’s of the width of the streetcar at the point of the collision. I am not prepared to find that, on a balance of probabilities, it is likely that events came together in such a way that the child would have passed by before the streetcar arrived. I will return to this idea later in these reasons.

[61] During cross-examination of Neil Bigelow, counsel for the plaintiffs came at the issue of how far the child would have travelled as he ran from where he was first seen by the operator to the point of the collision another way. This approach centred on a measurement found on the Motor Vehicle Accident Report prepared on the night of the accident. The investigating officer measured the distance from the north curb to the point of the collision as 3.6 metres.[^54] The road is 12.4 metres wide. After subtracting the 3.6 metres, 8.8 metres would remain. After subtracting an additional 2.0 metres, representing the width of the parked cars and the .30 metres separating the cars from the south curb, there would be 6.8 metres left. Neil Bigelow did not accept the 3.6 metre measurement. It does not matter. If the child travelled 6.8 metres at 3.01 seconds per metre, it would have taken him (6.8 metres divided by 3.01 seconds per metre) 2.26 second to arrive at the point of the collision. Assuming the faster perception and reaction time of 2.0 seconds, with the addition of the .3 seconds of lag time (2.3 seconds), the child would reach the point of impact before the braking system of the streetcar was engaged. The collision would have been unavoidable.

[62] There was some discussion about where the child entered the roadway: was it between the two parked cars immediately in front of the store of the parents of Jian Chen Jr. or the two parked cars further to the west? This cannot be determined. It is only possible to speculate. In the end, nothing turns on it. Its impact, if it has any, is on the direction the child was moving. If he passed between the first set of parked cars, it seems more likely he crossed straight across the road, if it was the second two cars, it may be that he continued on the angle that began at the doors of the store. The effect is on the distance he crossed over from when he was first seen by the operator to the point of the collision. As has been shown, either way, on a balance of probabilities, the collision was unavoidable.

Dr. Alison Smiley

[63] The defendants also called as a witness, Dr. Allison Smiley. She stands apart from the other witnesses who offered opinions as to the factors that would have affected the outcome of the circumstances that brought the streetcar and the child to the point where the collision occurred. Dr. Allison Smiley does not only work as a consultant; she also has an academic appointment. She is an Adjunct Professor in the Department of Mechanical & Industrial Engineering at the University of Toronto. Her field of study includes “Human Factors”, referred to in her evidence as the examination of the interaction between people and the things they use. How does this interaction limit human performance? How can human performance be improved? This may impact design, for example, of highway signs which need to be read and the content absorbed in time to allow for any desired response by drivers. She has many “Publications”, “Invited Presentations” and “Reports and Conference Papers”, a large number of which deal with factors affecting the operation of motor vehicles and other transportation issues.[^55]

[64] Based on her review of the reports and photographs associated with this collision, with which she was provided,[^56] and taking into account a visit to the site, she identified six “human factors” that applied to this collision, being: (1) The road-crossing task; (2) Age and child pedestrian accidents; (3) Traffic safety knowledge of children; (4) Children’s appreciation of the danger of visual obstructions; (5) Driver perception-reaction time; and, (6) Pedestrian running speed. It will be apparent that the first of these factors reflects on the general circumstance confronting the subject. What does the investigator need to examine from the perspective of the pedestrian (“One must estimate the time required to cross to the other side of the path of the vehicle”)[^57] and the operator of the streetcar (“One must estimate the speed of an oncoming vehicle and its initial distance in order to determine when it is likely to arrive.”).[^58] The second, third and fourth factors all reflect on what can be expected of the child. The fifth factor (“Driver perception-reaction time”) and the sixth factor (“Pedestrian running speed”) are the two that are relevant to a consideration of whether the collision, in this case, was avoidable through the actions to be anticipated from the operator.

[65] In considering driver perception-reaction time, unlike the other witnesses, Dr. Allison Smiley did not rely solely on reading relevant literature, but also on her own academic work and studies. She recognized that 1.5 seconds has been adopted as a typical reaction time. As referred to by Neil Bigelow, this is based on work by P. L. Olson.[^59] Olson’s interest was in the reaction to a hazard that is within the width of the road. The test was to measure response to a hazard that appeared as the vehicle passed over the crest of a hill, in a generally rural environment, where the hazard was clearly visible directly in front of the car. In those circumstances, the average perception-reaction time was 1.1 seconds, 1.3 seconds represented the perception-reaction time for the 85^th^ percentile and 1.5 seconds the perception-reaction time for the 90^th^ percentile, while for the 95^th^ percentile, it was 1.6 seconds.[^60] It was from this that 1.5 seconds was accepted as the expected time it would take for a driver to perceive the hazard and react.

[66] Dr. Alison Smiley indicated that it would not be appropriate to use 1.5 seconds as the anticipated perception-reaction time of the operator of the streetcar. The circumstances were very different than those used by Olson. This was not a simple rural scene, but a complex urban setting with many moving objects and lights to act as stimuli that would serve to attract the operator and distract him from the actual hazard, the child. Dr. Alison Smiley noted that the task was much more difficult where the pedestrian was seen at night, even in “streetlight conditions”.[^61] At night, you may have to be closer before the hazard can be seen. The contrast between the hazard and the objects which surround it will be low. The child, when first seen, was not directly in front of the street car. He was to the left and only seen in the peripheral vision of the operator. By way of confirming this, Dr. Alison Smiley advised that a person’s direct vision takes up a width of 4 degrees. As a demonstration of the impact of this limitation, she advised the court that a quarter (the coin) held at arm’s length takes up about 4 degrees of vision. Moreover, there is a natural tendency for drivers to look towards the right. This occurs because it is to the right that most traffic signs (for example, stop signs) and other driver advisories are located. On many vehicles, low beams are directed somewhat to the right.

[67] Given these differences, Dr. Alison Smiley advised that, in these circumstances, the “…best estimate of perception-reaction time would be 2.3 seconds or more…”[^62] During cross-examination, counsel for the plaintiff attempted to have Dr. Alison Smiley agree to reductions through individual segments of the period taken up by perception and reaction. The overall time cannot be disaggregated in this way. It is not possible to attach a time to each of the components. In the end, she refused to agree to anything lower than 2.3 seconds.

[68] Dr. Alison Smiley turned to the last of her six human factors: Pedestrian Running Speed. Relying on data on pedestrian walking and running speeds for various age groups provided by “Eubanks and Hill”[^63], she noted that the mean running speed for four-year-old males is 3.18 metres per second with the 15^th^ percentile being a value of 3.02 metres per second and the 85^th^ percentile being 3.73 metres per second. She observed these values to be very similar to those relied on by Neil Bigelow (3.01 to 3.81 metres per second). In other words, given the range of time Neil Bigelow said it would take the child to run from where he was first seen by the operator to the point of the collision (1.49 seconds to 1.99 seconds), the perception-reaction time of 2.3 seconds would not have passed and the braking system of the streetcar not yet have been engaged. This would be so in circumstances where the lag time is added to the perception-reaction time as assessed by Dr. Alison Smiley (2.3 seconds + .3 seconds = 2.6 seconds) and the total is assessed against the low end of the range of speeds suggested by Neil Bigelow and the longest distance the child would have to travel as assessed by Detective Constable Dallimore (7.7 metres divided by 3.01 metres per second = 2.55 seconds). With such time, the child would arrive at the point of impact .05 seconds before the brakes would be engaged.

[69] The collision would have been unavoidable.

Barry Raftery

[70] One further witness was called as an expert in accident reconstruction. Barry Raftery looked at the same factors assessed by Detective Constable Dallimore, Neil Bigelow and Dr. Alison Smiley. He considered the distance the child travelled, once passed the parked cars, to be 6.9 metres[^64], the speed at which the child was moving to be 3.17 metres per second[^65] and the applicable perception-reaction time to be 1.5 seconds[^66]. He calculated that it would take the child (6.9 metres divided by 3.17 metres per second) 2.2 seconds[^67] to move to the point of the collision. It is evident that, on this basis, before the child arrived at the point of impact, the operator would have been expected to apply the brakes, the lag time required to engage the braking system (.3 seconds) would have passed and the brakes would have begun the process of slowing the streetcar.

[71] The problem is with the acceptance of 1.5 seconds as the appropriate perception-reaction time. In his report, Barry Raftery provided no source for this figure. In his report, he acknowledges the limited circumstances to which it would apply.[^68] In his evidence, he seemed to waiver. In his direct evidence, he suggested that the 1.5 seconds could, in fact, be lower. In cross-examination, he accepted some of the mitigating factors in the environment that would serve to increase the perception-reaction time; 1.5 seconds was just a starting point. He appeared to accept a range of 1.5 to 3.0 seconds. In reply, he agreed the perception-reaction time could be higher than 1.5 seconds, but it could also be lower.

[72] I accept the evidence of Dr. Alison Smiley which explained the factors that would affect the perception and reaction of the operator and how this situation differed from circumstances on which the 1.5 second figure is based. I do not accept that 1.5 seconds, as relied on by Barry Raftery, is appropriate. Rather, the appropriate perception-reaction time is the 2.3 seconds proposed by Dr. Alison Smiley. I note that this is in the middle of the range suggested by Neil Bigelow (2.0 seconds to 2.5 seconds). If 2.3 seconds is set against the 2.2 seconds Barry Raftery said it would have taken the child to travel from just north of the parked cars to the point of the collision, it becomes apparent that the operator would not have been able to apply the brakes prior to the streetcar hitting the child. The difference becomes greater when the lag time for the brakes (.3 seconds) is added to the 2.3 seconds of perception-reaction time. On this analysis, the accident would have been unavoidable.

[73] Barry Raftery does not agree that this is so. There are two factors that lead him to this conclusion.

[74] First, he refers to the 3.6 metres, measured by the investigating officer, as the distance from the north curb to the point of impact. Barry Raftery testified that the curb lane, the most northerly lane, was 3.3 metres wide. From this, he determined that, at the point of the collision, Jian Chen Jr. was .30 metres from passing through the path of the streetcar and .50 metres from being completely inside the curb lane.[^69] Based on the rate of travel of 3.17 metres per second, Barry Raftery calculated that it would have taken the child (.3 seconds divided by 3.17 metres per second) .1 second to travel the distance necessary to clear the path of the street car. To put it simply, if the operator had applied the brakes such that the streetcar arrived .1 second later, the collision would have been avoided.

[75] Second, Barry Raftery does not accept that the operator first saw the child when he was just north of the parked cars. This is when he should first have seen the child, but not when he did. Barry Raftery noted the evidence of the operator, that the child was 5 metres from the streetcar when first seen. According to the operator, the streetcar was travelling between 35 to 40 km/hr. Assuming the streetcar was travelling at the mid-point, 37.5 km/hr., it would pass by 10.4 metres per second. Thus, in the 2.2 seconds that Barry Raftery calculated it would take the child to travel from just north of the parked cars to the point of the collision, the streetcar would have travelled (2.2 seconds x 10.4 metres per second) 22.9 metres. If the operator saw Jian Chen Jr. when the child was next to the parked cars, this, not 5 metres, is the distance that would have separated them. At 5 metres, with the streetcar moving at 37.5 km/hr., it would have taken just under .5 seconds for the collision to occur.

[76] This is what Barry Raftery believes took place. It is not what he thinks would have happened if the operator had seen the child when he was just north of the parked cars, when the streetcar was 22.9 metres away.

[77] Barry Raftery calculated that, over the 1.5 seconds of perception-reaction time that he applied, the streetcar would have travelled (10.4 metres per second x 1.5 seconds) 15.6 metres. This being the case, the operator would have had time to apply the brakes, the streetcar would have reduced its speed enough to delay its arrival at the point of the collision by the .1 seconds required to allow Jian Chen Jr. to pass in front of it without impact.[^70] Although in his initial report Barry Raftery made no reference to the lag time, the result might well have been the same even accounting for the lag time. This would delay initiation of the braking system by an additional .3 seconds. Over this period, the streetcar would travel an additional (10.4 metres per second x .3 seconds) 3.12 metres. The brakes would be engaged for the final (22.9 metres minus 15.6 metres minus 3.12 metres) 4.18 metres before the point of the collision. Based on the evidence, I cannot say if this would have provided the child with the necessary time.

[78] The difficulty with this approach is the same as with the original calculations made using the assumptions of Barry Raftery.[^71] It relies on a perception-reaction time of 1.5 seconds. What this analysis demonstrates is that, in the end, this case turns on this one factor. Once it has been demonstrated that 1.5 seconds is not appropriate and the length of time attributed to this consideration is increased in recognition of the environment in which the collision occurred to 2.3 seconds and account taken of the lag of .3 seconds before the brakes engage, it does not matter which of the other assumptions offered are accepted. In each case, with the longer perception-reaction time, the streetcar would have arrived at the point of the collision before the brakes were engaged.

[79] I wish to be clear I do not accept the proposition that the operator only saw the child .5 seconds before the collision. He was straightforward in his evidence. His depiction, on Exhibit 2, of the location of the child when he was first seen was clear. The child was just north of the parked cars. It is hardly surprising that, in the rush of the moment, the operator might mistake the distance involved. Having said this, it would not change anything. When the child appeared, just outside of the perimeter of the parked cars, it was too late. Given the distances and times involved, the collision could not have been avoided.

Stephen Lam

[80] Stephen Lam is an employee of the TTC. He appeared and was subsequently re-called to give evidence at the trial. When he first testified, he was responsible for the fleet of streetcars, LRT cars and subway cars maintained by the TTC. By the time of his return, he had been promoted. He is the head of the department that maintains the streetcars operated by the TTC. Stephen Lam introduced to the trial a factor not considered by either Neil Bigelow or Barry Raftery. He pointed out that, if a brake is engaged, it is not immediately completely effective. Over time, once engaged, the deceleration rate of the streetcar (the rate at which it slows) will increase. Obviously, this is a not a relevant consideration where the brakes are not engaged. Having said this, it is of some interest to note that it takes the service brake (the first of the three to respond when the brake pedal is depressed) 1.3 seconds to become fully effective. As the disc and track brakes (the second and third of the three brakes come on), the rate of deceleration continues to increase. The point of this is that, even if the perception-reaction time was fast enough to allow the brakes to engage, it would not necessarily mean that the collision could have been avoided.

[81] There are variables that would have to be considered. Principally, what was the actual rate at which the streetcar was slowing down? This would depend, in part, on the speed it was travelling at when the braking system was first engaged. The operator believed the streetcar was moving within a range of 35 to 40 km/hr. Barry Raftery thought it could be faster, 41 km/hr. was mentioned. His calculations used 37.5 km/hr. In the circumstances, this is a value that can never be known with any precision.

[82] There was considerable confusion about the anticipated rate of deceleration. In his evidence, Barry Raftery suggested a range of 2.6 to 3.46 m/s^2^. In time, he removed the latter value. He said it included the 1.3 seconds it takes the service brake to become fully effective. With this accounted for, Barry Raftery suggested the two rates of deceleration were essentially the same (2.6 m/sec^2^). Stephen Lam said they are not exactly the same. Barry Raftery assumed that the rate is constant once the build-up time has passed. It isn’t. The rate of deceleration continues to increase.

[83] Two versions of a pamphlet prepared by the TTC, which describes the characteristics of the streetcar (“Canadian Light Rail Vehicle”), were produced.[^72] They each contain a “Braking Rate”. The first says the rate is from “8.5 to 12.5 Km/h/s (5.25 to 7.75 MPHPS) in emergency”[^73]. The second cites the Braking Rate as a range from “2.34 to 3.46 m/s^2^ (5.25 to 7.75 MPHPS) in emergency.”[^74] Stephen Lam testified, and the fact that the Imperial measure is the same on both pamphlets confirms, these rates of deceleration are the same. What was never satisfactorily explained is how, as Barry Raftery suggested, one of these numbers could include the build-up time and the other could not. It would mean that what appears to be a range was not. The two numbers on each of these pamphlets would represent the same rate of deceleration. I do not accept that this is so. To the contrary, Stephen Lam testified that the deceleration rates in the pamphlets are constant and do not account for the build-up time of 1.3 seconds.

[84] I repeat that, in circumstances where the braking system was not engaged, any discussion of what would happen if it had engaged does not matter.

[85] Nonetheless, I point out that Barry Raftery prepared two charts.[^75] The first assumed that the child ran straight across the street (90^0^), at a speed of 3.17 metres per second with a brake lag of .3 seconds and a deceleration rate of 3.46 m/s^2^. The chart sets these assumptions against a scale representing a full range of perception reaction times (.75 seconds to 2.6 seconds). The chart suggests that, if the perception-reaction time was 1.5 seconds, the accident would have been avoidable but, once it reached 1.6 seconds, it would not. The operator would no longer be able to delay the arrival of the streetcar at the point of the collision by enough time to avoid the collision. Which, taken as it is, says that if the perception-reaction time was at 1.6 seconds or higher, the accident would have been unavoidable.

[86] The second chart prepared by Barry Raftery used the same assumptions except for the rate of deceleration which it changed to 2.6 m/s^2^. In this case, once the perception-reaction time increased beyond 1.05 seconds, the operator would have been unable to delay the arrival of the streetcar such that the collision would have been avoidable. No one suggested any realistic possibility that the perception-reaction time could be that fast.

[87] Neil Bigelow pointed out that the charts prepared by Barry Raftery did not account for the 1.3 seconds necessary for the impact of the service brake to build-up. They assumed an immediate and constant rate of deceleration. If this is accounted for, even if the brakes were engaged, and assuming a perception-reaction time as low as .75 seconds, the operator would have been unable to avoid the collision.

[88] This demonstrates that, even if the perception-reaction time is less than suggested by Dr. Alison Smiley, even if it is as low as the 1.5 seconds arrived at through the work of Olson without consideration of the complex environment in which this collision occurred, it could not have been avoided. This would be the case even if the perception-reaction time was considerably lower than 1.5 seconds.

[89] For the reasons reviewed, I find the collision could not have been avoided through the actions of the operator.

[90] The onus imposed by s. 193(1) of the Highway Traffic Act has been discharged. The action is dismissed.

Long Qiong He

[91] The mother of the child, Long Qiong He, was called to give evidence. This was in furtherance of the defence to the counterclaim. Given that there is no liability being assessed against the TTC or its operator, there is nothing to be gained by a review of whether the child was being properly supervised. I have little doubt that this family has suffered enough without having to confront an analysis of this question, particularly when it will not affect the outcome of the trial. Whether it is referred to as an accident or a collision, I see no purpose in any further effort to find fault.

COSTS

[92] No submissions were made as to costs. If the parties are unable to agree, I will consider submissions in writing on the following terms:

1. On behalf of the defendants, no later than fifteen days after the release of these reasons, such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs and case law that may be referred to.

2. On behalf of the plaintiffs and defendants by counterclaim, no later than ten days thereafter, such submissions made on behalf of the plaintiffs are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs and case law that may be referred to and such submissions made on behalf of the defendants by counterclaim are to be no longer than three pages, double-spaced, not including any Costs Outline, Bill of Costs and case law that may be referred to.

3. If necessary, in reply, on behalf of the defendants no later than five days thereafter, such submissions are to be no longer than three pages, double- spaced.

LEDERER J.

Released: 20140718

COURT FILE NO.: CV-08-00358443-0000

DATE: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JIAN CHEN JR., a minor by his Litigation Guardian, Ai Ying Yu and Al YING YU, YI LIN CHEN and LONG QIONG HE

Plaintiffs

– and –

TORONTO TRANSIT COMMISSION and ANTONIO MICCIO

Defendants

AND B E T W E E N:

TORONTO TRANSIT COMMISSION and ANTONIO MICCIO

Plaintiffs by Counterclaim

• and –

YI LIN CHEN and LONG QIONG HE

Defendants to the Counterclaim

JUDGMENT

LEDERER J.

Released: 20140718

[^1]: The New Shorter Oxford English Dictionary, 1993, edited by Lesley Brown, Clarendon Press, Oxford.

[^2]: For a more immediate account of how these events unfolded, there are handwritten endorsements, in the Trial Record, dated June 11, 2013 and September 26, 2013, as well as a signed copy of the agreement.

[^3]: R.S.O. 1990, Ch. H.8.

[^4]: “Operator”, as found in s. 193(5) has the same meaning as in s. 16(1) of the Highway Traffic Act where “operator” is said to mean: “… the person directly or indirectly responsible for the operation of a commercial motor vehicle including the conduct of the driver of, and the carriage of goods or passengers, if any, in the vehicle or combination of vehicles”.

[^5]: Section 193(1) does not apply to all actions arising from motor vehicle accidents. Section 193(2) states:

This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.

[^6]: Winnipeg Electric Co. v. Geel, [1931] S.C.R. 443, at p. 446, per Duff J.

[^7]: Blackwater v. Plint, 2005 SCC 58, at para. 78.

[^8]: R.R.O, 1990, Reg. 194.

[^9]: Chambers v. Murphy, [1953] O.J. No. 175 (C.A.), where there is reference to Rex v. Kaplansky, Sachuk and Seniloff (1922), 51 O.R. at p. 591, et seq., where Riddell J. quoted Lord Alverstone, C.J., in London General Omnibus Company Limited v. Lavell, [1901] 1 CH 135, at p. 139, as follows:

a view… is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence.

See also: Amalgamated Transit Union, Local 279 v. Ottawa (City), [2007] O.J. No. 3780, 286 D.L.R. (4th) 20, at para. 8; and, Paul v. Fadden, 1953 CarswellOnt 129, 1953 O.W.N. 306 (C.A.), at para. 3, where reference is made to MacDonald at al. v. The Town of Goderich et al., [1947] O.R. 908, [1948] 1 D.L.R. 11.

[^10]: 1995 CarswellOnt 2382 (Gen. Div.) upheld insofar as the request to take a view by the Court of Appeal, at para. 6.

[^11]: Ibid, at paras. 96 and 97, and upheld by the Court of Appeal which said:

“I am not prepared to interfere with the exercise of a discretion on the part of the trial judge in declining to take a view of the dwelling at the request of the respondent alone” [Emphasis added]

[^12]: See, as examples: Exhibit 1, Tab 4, Photographs at pages 078, 079, 080, 081, 082, 085, 094, 095, 098, 099, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109 110, 135, 136, and 137; Exhibit 3, Images 2-3, 2-4, 2-5 and 2-6; and also Exhibit 9, Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010) Tab 6.

[^13]: Exhibit 1, Tab 1: Motor Vehicle Accident Report, dated October 14, 2004, at p. 001.

[^14]: Exhibit 1, Tab 2: Collision Field Notes (Antonio Miccio), at p. 003 and p. 006.

[^15]: Initially, there was some confusion as to where Jian Chen Jr. was in relation to the parked cars. This was clarified by a drawing (see: Exhibit 2) which placed the boy north (or outside) of the parked cars.

[^16]: Exhibit 1, Tab 19: Streetcar Operator Initial – Resource Book, at p. 309.

[^17]: Exibit 1, Tab 9: Occurrence Report, at p. 266.

[^18]: Exibit 1, Tab 2: Collision Field Notes, at p. 005. The “open side” of the streetcar refers to the side on which the doors of the streetcar are located, being the right side.

[^19]: Exhibit 1, Tab 2: Collision Field Notes, at p. 006.

[^20]: Exhibit 1, Tab 4: Photographs, at pages 96, 97, 101 and 102.

[^21]: Exhibit 3: Photographs, at Images 2-3, 2-4, 2-5 and 2-6.

[^22]: Exhibit 7: Collision Reconstruction Report: Personal Injury Collision #87/2004.

[^23]: Exhibit 7: Collision Reconstruction Report: Personal Injury Collision #87/2004, at p.12.

[^24]: Exhibit 7: Collision Reconstruction Report: Personal Injury Collision #87/2004, at p.19.

[^25]: Exhibit 7 Collision Reconstruction Report: Personal Injury Collision #87/2004, at p.18.

[^26]: As will appear later in these reasons, in his evidence, Neil J. Bigelow examined the range of possible heights of the parked cars and concluded that the child was too short to have been seen as he ran between (see: para. [45], below).

[^27]: In Exhibit 7 (the Report), there is no explanation as to how this distance was “determined” nor was it referred to when the calculations were discussed in the evidence of Detective Constable Dallimore. Exhibit 8 is a “Post Collision Diagram” prepared by the Detective Constable. It measures the distance from the point of impact to the point where the front wheels of the streetcar first came to a stop as 18.7950 metres. I assume this is where the sand on the rails would have ended. As noted in para. [29], above, the hat, which may have marked the point of impact, was close to the cones which marked the start of the sand on the tracks. While there was no agreement between the witnesses as to the point of impact, Neil Bigelow and Detective Constable Dallimore believe, following the path of the streetcar, it was before the emergency brake was engaged and, accordingly, before there was any sand on the road. On this basis, I assume the 18.5 metres is a measured distance from the beginning to the end of the sand on the rails.

[^28]: The source for these values is said to be “Recent testing of streetcars: see CV” (Exhibit 7 Collision Reconstruction Report: Personal Injury Collision #87/2004, at p. 19). The CV of Detective Constable Dallimore is included in Exhibit 3, Brief of Defendants’ Witnesses’ Curriculum Vitae, Tab 1.

[^29]: In his report, the conclusion pointed in a different direction. There, he said that the collision was avoidable at the instance of the child (Exhibit 7 Collision Reconstruction Report: Personal Injury Collision #87/2004, at p. 20).

[^30]: See: para. [23], above.

[^31]: Exhibit 1, Tab 1: Motor Vehicle Accident Report, at p. 001.

[^32]: Exhibit 1, Tab 2: Collision Field Notes: Cover, at p. 003.

[^33]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010) Tab 6, at photograph 2, illustrates this distance.

[^34]: See fn. 12.

[^35]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 7 and p. 12.

[^36]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 12.

[^37]: Exhibit 8, Post-Collision Diagram.

[^38]: Exhibit 7: Collision Reconstruction Report: Personal Injury Collision #87/2004, at p. 18; and see also fn. 18 herein.

[^39]: The diagram (Exhibit 48, see. fn. 38) shows the distance at an angle. Despite this, as already noted (para. 39) in his work, Detective Constable Dallimore accepted that the path travelled by Jian Chen Jr. was straight across the street.

[^40]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 12; and Exhibit 1, Tab 4: Photographs at p. 102, which shows the location of the child after the collision as marked by the police in orange paint. The picture does show movement that is to the west, but also to the north just not as much as Neil Bigelow says would be the result of a blow on the extreme right of the streetcar.

[^41]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 13, where he refers to a text published by J. Eubanks, “Pedestrian Accident Reconstruction and Litigation”.

[^42]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 13.

[^43]: 5.7 metres divided by 3.81 metres per second (the shorter distance and faster time) equals 1.496 seconds. Neil Bigelow used 1.49 seconds, but properly rounded, it should be 1.50 seconds

[^44]: 6.0 metres divided by 3.01 metres per second (the longer distance and slower time) equals 1.993 seconds, rounded to 1.99 seconds.

[^45]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 15.

[^46]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 15: “Eubanks, Olson, Allen and others” and “additional research work…by Summala”.

[^47]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010) at p. 15 and p. 16: “Allen: Forensic Aspects of Vision and Highway Safety” and “Olson: Forensic Aspects of Driver Perception in Response”.

[^48]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 15.

[^49]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 15.

[^50]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 15.

[^51]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 16.

[^52]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 16.

[^53]: Exhibit 9: Bigelow Accident Reconstruction Inc., Report of a Motor Vehicle-Pedestrian Incident (May 18, 2010), at p. 17.

[^54]: Exhibit 1, Tab 1: Motor Vehicle Accident Report, at p. 001.

[^55]: Exhibit 3, Brief of Defendants’ Witnesses’ Curriculum Vitae, Tab 3: Curriculum Vitae of Dr. Alison Smiley.

[^56]: The material provided by the TTC is listed in Exhibit 14: Opinion of Human Factors Issues, Chen v. TTC et al., at p. 1 - p. 3.

[^57]: Exhibit 14, Human Factors North Inc., Opinion on Human Factors Issue, Chen v. TTC, at p. 8.

[^58]: Exhibit 14, Human Factors North Inc., Opinion on Human Factors Issue, Chen v. TTC, at p. 8.

[^59]: Exhibit 15, Brief of Literature Considered by Dr. Alison Smiley, Tab 6: Olson, P. L.: Forensic Aspects of Driver Perception and Response, Lawyers and Judges Publishing Company, Tuscon, Arizona. 1996; and, Tab 7: Olson, P. L., Cleveland, D. E., Fancher, P.S.; and Schneider, L.W.: Parameters Affecting Sight Distance, Rep. No. UMTRI-84-15, University of Michigan Transportation Research Institute, NCHRP Project 1508. 1984.

[^60]: Exhibit 14: Opinion of Human Factors Issues, Chen v. TTC et al., at p. 10.

[^61]: Exhibit 14: Opinion of Human Factors Issues, Chen v. TTC et al., at p. 10.

[^62]: Exhibit 14: Opinion of Human Factors Issues, Chen v. TTC et al., at p. 11.

[^63]: Eubanks, J.J. & Hill, P.L. (1998) Pedestrian Accident Instruction and Litigation: Lawyers & Judges Publishing Co., Tucson, Arizona at p. 81, table 3.6, 1998.

[^64]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 16 and Figure 4.

[^65]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 17.

[^66]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 18.

[^67]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 17.

[^68]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 18, where the following is said: “An alert driver, given a reasonably clear stimulus, and a fairly straight-forward situation, should begin to respond by about 1.5 seconds after the first possible visibility of the object or condition of concern.”

[^69]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 20 and Figure 3.

[^70]: Exhibit 19: Raftery Engineering Investigations Ltd. (August 9, 2010), at p. 18.

[^71]: See para. [70], above.

[^73]: Exhibit 32.

[^74]: Exhibit 32A.

[^75]: They are the last two charts found in Exhibit 27.