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When good isn’t good enough

Posted: April 27, 2017 by Jim Park

Should “professional” drivers be held to a higher standard when it comes to care and control of their vehicles, and indeed, the actions they take or don’t take to avoid a collision? An Ontario appeals court judge thinks they should be and has ruled accordingly. I think the decision opens some dangerous doors for Ontario truck drivers.

At issue is a recent judgment from the Court of Appeal for Ontario regarding a previous judgement of an Ontario Superior Court Justice that found an Ottawa transit bus driver 20% responsible for a crash that resulted in three fatalities and catastrophic injuries to a fourth individual.

The crash occurred at a four-way intersection in Ottawa in 2008. An SUV loaded with partygoers ran a red light and collided with the bus. The estate of the SUV driver admitted liability for the crash. The issues at trial were whether the bus driver was negligent in his operation of the city bus and, if so, whether his negligence caused or contributed to the accident.

There’s a story about this on Todaystrucking.com, and embedded in the story is a link to the appeals court ruling. You should read the story and the ruling. They are fascinating and frightening.

To summarize the findings and the judge’s ruling, evidence indicated the bus driver was speeding, driving 65.6 km/h in a 60-km/h zone; the bus driver looked into his left and right mirrors as just prior to entering the intersection; the bus driver and another off-duty driver on the bus (the bus was off-duty and heading to the terminal) noticed the SUV approaching from the side street and determined that it was not going to stop and then prepared themselves for an impact; the bus driver took no evasive action nor did he attempt to brake before the collision occurred. (The exact timelines involved were not discussed in the Appeals Court’s decision)

An Ottawa Citizen report indicates the SUV driver “had a blood-alcohol level nearly three times the legal limit for a fully licensed driver. This was contrary to the requirements of his G2 licence, which prohibit driving after the consumption of any alcohol.”

Not in dispute in this case was the fact that the bus driver was operating the bus according to the Ontario Truck and Bus Drivers Handbook, and basically doing everything that was expected of him as a commercial driver operating a large vehicle. The speeding issue was a sticking point, as it was suggested that if he had not been speeding (5.6 km/h over the limit) the crash might have been avoided.

It wasn’t suggested that speed was a contributing factor in the crash, but rather, if the bus had been travelling at the speed limit, it may not have been in the intersection at the same time the SUV careened through the red light.

Interestingly, the appeals court judge confirmed the opinion of the original judged that his glance into the mirrors prior to entering the intersection could be construed as “momentary inattention to the intersection” despite the fact that both the handbook and the training he received as a transit bus driver recommends that practice.

According to the appeals court decision, “The manual’s direction, like any other best practice, is not a mandatory or absolute requirement.  Its application depends on all the surrounding circumstances.”

There was also some questions surrounding the interval between the moment the driver saw the SUV approaching and the moment of impact. The Appeals court decision backs the original judge’s questioning why the bus driver did not take evasive action.

The decision states, “… On the other hand, this evidence must be considered in the context of all of the evidence received, and with due regard to the fact that [the bus driver] drove in a manner that did not adjust for weather and road conditions, and involved speeding and momentary inattention to the intersection ahead of him, when [the bus driver] chose to look left, then into his mirrors, and right before returning his attention to the front of his bus.  After that, [the bus driver] had time to comment to [the off-duty driver] that the SUV was not stopping, steer to the left and brake. Moreover, [the off-duty driver] after seeing the emergency himself, had time to move across the bus to another stanchion and crouch down before the impact.”  

I think there are some real lessons for drivers and fleets to be learned from this exercise.

~ Even when a drunk driver goes through a red light and hits you, you can still be held at least partially responsible.

~ Even doing all you are required to do by law or established practice, you can still be held at least partially responsible.

~ It seems to matter that if you do not do all that’s humanly possible to avoid a collision, you can still be held at least partially responsible.

~ The slightest deviation from 100% compliance in whatever situation you find yourself could result in you being held at least partially responsible.

I think in this case, the speeding allegation was a serious chink in the bus driver’s armour. Even though it was a pretty minor transgression, it opened the door to an accusation of negligence.

Consider for a moment a similar circumstance, but where a truck had one brake out of adjustment, or maybe an underinflated tire. Either, it could be said, could have an impact on the braking performance or emergency handling of the vehicle. I have written on this several times over the years, outlining how a seemingly innocuous little problem could be hung around your neck after the fact even in the most unlikely of circumstances, like when a drunk driver runs a red light and hits you.

I don’t necessarily disagree with setting the bar higher for professional drivers, but I think this decision sets it impossibly high. Following the judges’ line of thinking, it’s possible to imagine a driver who rolls his or her truck into a ditch to avoid a collision still being found partially responsible because a brake was out of adjustment or his or her log book wasn’t up to date (even if they were not fatigued).  

I think by most standards, the bus driver did what was expected of him. The speeding is a problem but how much of a problem — in fact — ought to be a discussion for philosophers not judges. There was also some concern expressed of the bus driver’s decision to drive at that speed given the wintry road conditions, said to be “snowy and slushy” at the time. That’s du rigueur for Ottawa in January, and few drivers with 27 years of experience would feel compelled to creep along at a more cautious speed.

Consider this a warning. The courts apparently can set their own compliance and performance standards for drivers, and even dismiss accepted custom and practice when it comes to the operation of a commercial vehicle. If we take the judges’ decisions to heart, staying home might be the only way to stay completely out of trouble if you hold a CDL.  

As an aside, it’s interesting to note how the mainstream media reported this crash. The following comes from a CBC Ottawa web news story posted the day after the incident: “Two other people were injured when the 1992 Toyota 4Runner SUV carrying five people was struck by an OC Transpo bus near Riverside Drive and Heron Road around 1:50 a.m., police said.”

I think it’s inappropriate to suggest the bus struck the car when the evidence from the trial clearly indicates the car struck the bus. It may be semantics, but it shapes the readers impression of what happened, casting the bus driver in a negative light

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