Alford v. Canada, 2010 ABQB 192

Court of Queen ’ s Bench of Alberta Citation: Alford v. Canada, 2010 ABQB 192 Date: 20100426 Docket: 0401 09550 Registry: Calgary Between: Daniel Elisha Alford and Brandy Lee Alford Plaintiffs - and - Her Majesty the Queen In Right of Canada and Robert Dunnett Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ [ 1 ] In this case, a couple turning into a local hospital was rear-ended by a police officer who was responding to an emergency nearby.

Amazingly, nobody suffered serious physical injuries and only property loss is at issue. The case highlights the precarious balance between getting police officers to emergencies quickly and the dangers posed to others by fast-moving emergency vehicles. [ 2 ] In

summary, I find it is legally permissible for a police officer responding in emergency mode to break traffic laws with lights and siren on, but the officer still has to show care and regard for citizens on the highway and the circumstances faced by civilians. A driver being overtaken or approached by an emergency vehicle with siren on must yield to the emergency vehicle unless it is difficult – meaning almost impossible – to do so. Factual Narrative [ 3 ] On June 19, 2002, the day of the accident, the female Plaintiff (“Brandy”) had just discovered she was pregnant.

On her doctor’s advice, she and her then husband (“Daniel”), the other Plaintiff, left their home to go to the local hospital. They were accompanied by their infant son Chase and by Dallas Kilgore, Brandy’s brother. It is common ground that, on the day in question, the weather was clear and the road conditions were excellent. [ 4 ] The road that would take the Plaintiffs to the hospital is Highway 583, a two-lane road. The posted speed limit on Highway

[ 4 ] The road that would take the Plaintiffs to the hospital is Highway 583, a two-lane road. The posted speed limit on Highway 583 at the relevant point by the hospital was 50 km/hour, though just after the hospital intersection, it increased to 70 km/hour. Just before the intersection at the hospital, the road widens, either: (

a) perhaps, to allow ongoing cars to pass on the right side of any cars turning left into the hospital, or (

b) more by design, to allow cars to leave Highway 583 by turning right to get to the service road or a campground opposite the hospital intersection. [ 5 ] After turning onto Highway 583, Daniel saw an RCMP police cruiser (the “First Cruiser”) approach from behind with lights and siren fully operational. Daniel obeyed the law by fully pulling over to the shoulder until the First Cruiser had passed and it was clear to re-enter the highway.

They then re-entered Highway 583 and at that point were just a few blocks from the hospital. [ 6 ] At some point after the First Cruiser passed but before they reached the hospital, Daniel and Brandy’s baby, strapped in the back seat with Brandy, dropped his bottle onto the floor. The baby might have been crying. Brandy unbuckled her seat belt to reach down and grab the bottle. At the same time, Daniel was slowing the vehicle and preparing to turn left off Highway 583 and into the hospital.

First, however, he had to yield at the hospital’s intersection and wait for an approaching car. [ 7 ] RCMP Constable Dunnett, also driving an RCMP cruiser (the “Second Cruiser”), was responding to the same emergency as his colleague in the First Cruiser. It is agreed that there was a serious collision between the Second Cruiser and the Plaintiffs’ vehicle, though the unfolding of that collision is in some dispute, as set forth infra .

The Second Cruiser hit the Plaintiffs’ car with such force that it ruined the front end of the Second Cruiser and left it and Constable Dunnett in the opposite ditch with the air bag deployed. The Plaintiffs’ vehicle spun 180 degrees. The damage to the Plaintiffs’ car was such that Brandy and the baby could not get out of the rear of the car until they were helped by the Fire Department who used the jaws of life. [ 8 ] Both Plaintiffs and Constable Dunnett testified. In addition, each side called an independent witness.

Perhaps not surprisingly, each person’s version of the events up to and including the collision was slightly different. Six days after the collision, Constable Dunnett gave a statement which was filed as Exhibit 7 in the trial. Constable Dunnett stated, inter alia , as follows: I stopped at the 4-way stop then turned east onto 2 nd Street North, accelerating toward the highway and turning on the emergency system to Level 2 (wigwags, front and rear head and taillight strobes, light bar and arrow stick).

After I passed the Robertson Manor and had a clear view of the road right to the highway, I noted that there were numerous vehicles in both the eastbound and westbound lanes, so I moved the switch on the emergency system to Level 3 (all emergency lights as previously described plus the siren, whose default setting is Wail). The siren did come on and was working. I do remember thinking perhaps I should change the siren setting to “Yelp” but decided against it. I remember glancing down at the speedometer and seeing the needle climbing past 80 km/h.

As I came abreast of the Coffee Break Restaurant I saw [a] light brown or gold-coloured Ford pickup slow down and pull over to the shoulder to let me pass. As I came abreast of the Lamplighter Inn I noticed a small black car ahead of me that was not making any motions to move over to the right to let me to pass. The oncoming lane was clear, so I made the decision to pull into the oncoming lane to pass.

When I was no more than 50 m from the rear of the black car preparing to pass its brakelights came on and I briefly thought the driver was going to pull to the right when the left turn signal suddenly came on and the front of the vehicle started to pull across in front of me. I had nowhere to go. I decided that the driver of the black car wouldn’t stand much of a chance if I hit him broadside, so I slammed on the brakes and yanked the steering wheel to the right hoping at best to miss them and go into the south ditch, and at worst, to hit a non-vital part of the car, away from the passenger compartment.

I estimate I was travelling between 70 km/hr and 80 km/hr when I struck the rear of the black car. I didn’t see exactly where I hit the other car, as I squinted just before impact to avoid getting anything in my eyes. ... I remember being amazed that despite the severity of the collision I could still hear the PC’s siren wailing away. [ 9 ] Constable Dunnett also testified at trial. He indicated that there is a point on Highway 583 at which there is “a little bit of an uphill grade that doesn’t allow you to see all the way down the road”.

He testified that once he had cleared the grade, he observed a number of both westbound and eastbound vehicles and that it was at that point that he increased the warning system level from level 2 to level 3, thus activating the siren. [ 10 ] Constable Dunnett did not recall seeing the Plaintiffs’ car immediately upon clearing the grade. He stated that he did not

notice the Plaintiffs’ car until he came abreast of the Lamplighter Inn, at which point he noted that the Plaintiffs’ car appeared to be moving slower than the posted speed limit of 50 km/hour and that it was not pulling over to the right. But he also said he was only approximately 50 meters away from the Plaintiffs’ car when he saw the brakelights.

At that point, he estimated that he was travelling at least 80 km/hour. [ 11 ] The Plaintiff Daniel testified as follows: I was approaching the hospital, and we were – we were – I was just about to make my left-hand turn now, and I have my foot on the brake and my signal light on, and there’s another car coming westbound, so I have to wait for them. So I’m stopped, here comes another car. I wait, they passed, okay, and now it seemed like seconds after that, the most realistic description I can give is that I was spinning across the road.

But when I – but I know what happened is – is I was – when I was turning, when I was about to turn and waiting for the car to go past me, I clipped – I catch a glimpse in my rear view mirror of a white cruiser, for a millisecond. ... And I’m talking, like, a millisecond, like milliseconds. I’m just – I catch this flash, I’m still – my foot is on the brake, I’m going to make my turn, and everyone’s yelling, everyone’s screaming, and it’s all over, very silent. But that’s the best as I – I know everything happened exactly as I was going to turn, I was going to take my foot off the brake.

I looked in my rear view window, this is all within milliseconds. I had no idea, I saw no flashing lights, I heard no sirens, I had no reason to even look in my rear view mirror until – and I’m telling you, like, the millisecond before impact. Like, I know my foot was still on the brake. I know I was just easing off, and then I was spinning through the – spinning across the road. I don’t remember – I can’t recall any – any noises or any – any kind of warning apart from that flash of light in the rear view mirror. Q Okay. So just to confirm, you didn’t hear a siren, a second set of sirens?

A Oh, no, not – not after the first cruiser had gone by. I heard those. [ 12 ] On cross-examination, Daniel agreed that there was music playing in his car, but he asserted that it was “probably not very loud” and that he was not distracted by it. [ 13 ] The Plaintiff Brandy admitted that she did not remember much about the collision itself as she had bent down to retrieve her son’s bottle and still had her head down at the moment of impact. She did, however, confirm two points from Daniel’s testimony. First, she indicated that while there was music playing in the car, it was not loud.

Second, she testified that she did not recall hearing sirens associated with the Second Cruiser. [ 14 ] The Crown called its own independent witness, Ms. Wiens. On the morning of the day in question, Ms. Wiens was walking to the coffee shop (Coffee Break) down the road and adjacent to Highway 583. She said that she heard a siren, turned around, and saw the Second Cruiser go eastbound into the lane of oncoming traffic, which was clear at the time. She testified that she saw the Second Cruiser “go out to pass” and then collide with the Plaintiffs’ car. [ 15 ] On the day of the collision, Ms.

Wiens gave a statement (partially with the help of a different RCMP officer which appears to be standard procedure with witness statements). As part of the statement, she drew an image or representation of the accident in which she depicts: (

a) the Second Cruiser going entirely in the passing lane, and (

b) the Second Cruiser appearing to strike the front of the Plaintiffs’ vehicle.

[ 16 ] The Plaintiffs called Ms. Fay Moran as an independent witness. On the morning of the accident, Ms. Moran travelled to Three Hills to do some shopping. Hers was the oncoming car that Daniel had to wait for before he could turn left into the hospital. Ms. Moran testified that the Plaintiffs’ car had stopped to let her go by and was signalling to go into the hospital. [ 17 ] Ms. Moran also testified that, after she passed by Daniel’s car, she pulled onto the right-hand side of the road and stopped because she had seen the Second Cruiser coming toward her with its lights on. She did not recall hearing a siren.

She stated that she watched the Second Cruiser pass her and that, as it did, she saw Constable Dunnett looking and reaching toward his right. She said that, based on this observation, she believed that the Second Cruiser was going to hit the Plaintiffs’ car and that she looked in her mirror and saw the collision. [1] [ 18 ] With respect to events after the collision, the Crown points out that Daniel was issued a ticket for failing to yield to an emergency vehicle and that he voluntarily paid that ticket in the amount of $103.00. The importance of this will be addressed later in these reasons.

In direct examination, Daniel testified as follows with respect to the ticket: Q And can you tell the Court why you paid the ticket? A Simply because I was 19 and scared out of my mind that I’d just got in an accident with a police officer, didn’t want to get in any – any trouble, didn’t want to – just wanted it to be dealt with and over. I was more concerned with my wife and my son, really. I remember knowing at the time and being counselled by my parents and friends that I should not pay it, but still going ahead and doing it just so I could get it over with.

I believe that that’s – that’s really the honest reason why I paid it. [ 19 ] During cross-examination, he said this: Q So you – at the time that you paid the ticket you didn’t have this counsel that you spoke about earlier. In other words, you hadn’t spoken to anybody about it. A I don’t believe so, not – I think I paid it the same day.

I might have mentioned it to, like, maybe Brandy or someone, might’ve – might’ve just said, “Look, I got this ticket,” but I know I – I know I just – I just paid it to kind of get it over – Issue [ 20 ] The Plaintiffs claim damages in the amount of $17,002.19 plus interest pursuant to the Judgment Interest Act , R.S.A. 2000, c. J-1 , as amended. The Defendants claim damages in the amount of $15,692.25. [ 21 ] Therefore, the question before me is, in a non-intersection accident involving a police vehicle and a civilian vehicle, who is liable?

Findings of Fact [ 22 ] Based on the evidence of the witnesses, particularly Constable Dunnett himself, I find that the Second Cruiser was going at least 80 km/hour at the time Constable Dunnett applied his brakes, which was seconds from when he struck the Plaintiffs’ car. [ 23 ] Despite the Crown’s position, there was no evidence that Daniel made an abrupt stop or suddenly decided to turn left just before the accident. I find quite the opposite.

Daniel was in the lane he was entitled to occupy, was prepared to turn with his left signal light activated and had slowed or stopped out of an obligation to the Moran car when he was hit by Constable Dunnett. That was the

evidence of Ms. Moran and I accept it. [ 24 ] As between the two independent witnesses, I prefer the evidence of Ms. Moran. Her evidence and the way she told it including the tone of her voice, expressions in answering questions, time in responding to questions, convinced me of her ability to predict the inevitability of the Second Cruiser hitting the Plaintiffs’ vehicle. The Crown successfully cross-examined her on her failure to recall the exact vehicle she drove that day, her inability to judge distances, and so on.

But there was no successful challenge to her evidence about Constable Dunnett looking and reaching to his right, for whatever reason, moments before the accident. [ 25 ] Conversely, I discount Ms. Wien’s testimony, primarily because the diagram she drew when she met with the RCMP later depicts Constable Dunnett’s cruiser striking Daniel’s car in the front, not rear, and the pictures of the accident showed just the opposite was true. [ 26 ] I also have some doubt about Ms. Wiens’s testimony relating to the lights and sirens on the Second Cruiser. I find it strange that Ms.

Weins would have heard the siren on the Second Cruiser but not those of the First Cruiser or the two ambulances that passed by just moments before. [2] However, Constable Dunnett was clear that he had activated the siren prior to the collision and neither the Plaintiffs nor Ms. Moran is able to say for certain that the siren was not activated. On balance, I believe Constable Dunnett had on his lights and siren, immediately before the accident. [ 27 ] However, I do have some difficulty with Constable Dunnett’s testimony, particularly as it relates to the topography of the road.

He stated that there was a rise in the road just before the intersection at the hospital that blocked his view. Constable Dunnett, having worked as a police officer in Three Hills for several years by the date of the collision, would or should have known about the rise in that particular road and that his view of the intersection would be impeded.

That being the case, I am troubled that he would have been travelling at such a speed that he was unable to avoid colliding with the Plaintiffs’ car. [ 28 ] I accept that Constable Dunnett was en route to a potentially serious matter, but I also note a couple of things that attenuate the exigency. First, the First Cruiser was ahead of him. Second, I also note from Exhibit 7 that Constable Dunnett knew that Fire and EMS were already at the scene. Thus, Constable Dunnett knew that he was not the first emergency responder to the scene in Trochu.

Without saying it would absolve the Defendant of liability [3] , it is more understandable to drive very fast if the emergency was an “officer down,” a “shooting” or something suggesting that level of seriousness. I also note Constable Dunnett knew he was at least the fourth responder. In fact, he was probably the sixth responder. Statutory Regime [ 29 ] There is no question that the Second Cruiser was an emergency vehicle. [4] Alberta’s law grants special privileges to emergency vehicles and imposes obligations on the ordinary citizen to yield to such vehicles.

At the time of the collision, ss. 68.1 and 68.2 of the Highway Traffic Act, R.S.A. 2000, c. H-8 provided: Operating and parking emergency vehicle. 68.1(1) An operator of an emergency vehicle may, while the vehicle's siren is operating, (

a) operate the vehicle in excess of the posted speed limit, (

b) proceed past a red traffic light, stop signal or stop sign without stopping, and (

c) contravene any other rule of the road that is prescribed by this Act, the regulations or a municipal bylaw, where, considering the circumstances, it is reasonable and safe to do so.

(2) An emergency vehicle, while its siren is operating, has the right of way over all other vehicles.

(3) Notwithstanding subsection (2), while their sirens are operating emergency vehicles have, with respect to each other, the right of way in the following order: (

a) first, a vehicle operated by a fire protection service; (

b) second, an ambulance; (

c) third, a vehicle operated by a police service; (

d) fourth, a vehicle operated as a gas disconnection unit of a public utility; (

e) fifth, a vehicle designated as an emergency response unit under

section 17.1.

(4) Where, considering the circumstances, it is reasonable and safe, an emergency vehicle may, while its flashing lights are operating, be parked contrary to any rules of the road respecting the parking of motor vehicles prescribed by this Act, the regulations or a municipal bylaw.

(5) Where a peace officer is not present, the operator of an emergency vehicle, if the circumstances so require, has the powers of a peace officer under this Act with respect to traffic control and direction to the extent necessary to enable that operator to efficiently perform the operator's duties or safeguard the public.

(6) Nothing in this

section shall be construed so as to permit an operator of an emergency vehicle to (

a) operate that vehicle under subsection (1), (

b) park that vehicle under subsection (4), or (

c) control or direct traffic under subsection (5), in a manner that, considering the circumstances, is negligent. R.S.A 1980 c. H-7, s. 68 ; 1986 c.19 s.10 ; 1988 c. P-12.01 s. 67 . Police vehicles operating without siren. 68.2(1) A peace officer operating a motor vehicle may, if required to do so for the purpose of carrying out the peace officer's duties, (

a) operate the motor vehicle in excess of the posted speed limit, (

b) proceed past a red traffic light, stop signal or stop sign without stopping, and

(

c) contravene any other rule of the road that is prescribed by this Act, the regulations or a municipal bylaw, while not operating a siren where, considering the circumstances, it is reasonable and safe to do so.

(2) Where, considering the circumstances, it is reasonable and safe, a peace officer may, if required to do so for the purposes of carrying out the peace officer's duties, park a motor vehicle, while not operating any flashing lights or siren, contrary to any rules of the road respecting the parking of motor vehicles prescribed by this Act, the regulations or a municipal bylaw.

(3) Nothing in this

section shall be construed so as to permit a peace officer to (

a) operate a motor vehicle under subsection (1), or (

b) park a motor vehicle under subsection (2), in a manner that, considering the circumstances, is negligent. R.S.A 1980 c. H-7 s. 68 ; 1986 c.19 s. 10 . [ 30 ] Nevertheless, these special privileges do not absolve police officers from liability in every circumstance. The allowance and privileges to emergency vehicles are still subject to the consideration of all the “circumstances” which, without limitation, I define to include: weather, topography, traffic, the nature of the emergency, the number of emergency responders thought to be en-route or at the scene, and so on.

Officers will be civilly liable if, considering all the circumstances, they are negligent. Officers can break statutes or municipal laws referred in the preceeding sections only if it is reasonable and safe to do so in the circumstances. See e.g. Use of Highway and Rules of the Road Regulation, Alta. Reg. 304/2002, ss. 62 - 65 . [ 31 ] There is also a statutory obligation on drivers of ordinary vehicles when an emergency vehicle is present. At the time of the collision, s. 103(1) (

b) of the Highway Traffic Act provided: 103(1) A driver of a vehicle meeting or being overtaken or approached by an emergency vehicle that is operating a siren shall, unless otherwise directed by a peace officer, yield the right of way to the emergency vehicle, and ... (

b) if the driver’s vehicle is in an intersection and it is not safe or possible to clear the intersection, (

i) forthwith position the vehicle as far as practicable from the centre of the intersection so as to leave the largest direct passage possible in the circumstances for the emergency vehicle to pass, and (ii) stop and remain stopped in that position until the emergency vehicle has passed and the driver has determined that no other emergency vehicles are approaching. Jurisprudence [ 32 ] Counsel on both sides referred me to a number of cases, most of which are quite old and not particularly helpful. I do find helpful the cases of Eirikson v. Breton et al., 2000 ABQB 798 , 278 A.R. 75 and Sinclair v.

Siddle, (1965) 1965 CanLII 487 (BC CA) , 53 W.W.R. 14, 53 D.L.R. (2d) 370 (B.C.C.A.). In Eirikson , a case involving a plaintiff who hit a firefighters’ truck that had responded to an accident, Madam Justice Kent reviewed different types of vehicle crashes and negligence at para. 58: 58 Negligence of emergency vehicles: these cases stretch from a situation where a police car who rear-ended another car who was pulling over to the right because of the siren ( Brouwer v.

Grewal and Edmonton (City) (1995), 1995 CanLII 9093 (AB KB) , 168 A.R. 342 (Q.B.)) was found to be 100% liable to cases to where there has been as apportionment between drivers where an emergency vehicle

goes through a red light. Many of the cases make the point that s. 68.1 of the Highway Traffic Act does not give the operator of an emergency vehicle a license to operate the vehicle in any manner which he or she see fit. The operation must be reasonable and safe. In Sharnynski v. McPherson , [1976] A.J. No. 299 , Mr.

Justice Steer said that the circumstances referred to in s. 50 (now s. 68.1 ) are “not the circumstances of the emergency to which the vehicle is proceeding, but the circumstances of traffic in the intersection and the risks that can be perceived.” (para. 7) [ 33 ] Justice Kent also concluded (1) drivers are obliged to travel at reasonable speeds, having regard to conditions at the time, and (2) emergency vehicles, in that case a fire truck, have to balance risks against hazards, including whether EMS was already at the scene.

While Eirikson can be distinguished on many of the facts, she found plaintiffs completely liable in that instance. [ 34 ] In Sinclair , an old case involving an intersection accident, an RCMP officer was responding to an emergency. I find helpful the analysis of the Court on the duty of emergency responders to consider traffic circumstances.

In finding that liability was split, Bird, C.J.B.C. for the majority, said this at 20: The finding made below as to the reasonableness of the speed at which the respondent [RCMP] entered the intersection, in my respectful opinion, cannot be supported on the evidence of the respondent, nor can it be supported in light of the circumstances disclosed by the respondent’s testimony on the application of sec. 123(3) of the Act , properly interpreted.

The risk taken by him in entering at that speed, under the circumstances disclosed in the foregoing partial recital from his testimony, in my judgment, cannot reasonably be held to constitute driving “with due regard for safety” within sec. 123(3). To paraphrase the language employed by my brother Davey in Whitehead v. Victoria (City) (1958) 1957 CanLII 237 (BC CA) , 25 W.W.R. 91, at p. 94: Rights enjoyed under ... [section 123 of the Act ] ... are not absolute but relative and must be exercised with due regard to dangers that should be reasonably anticipated: B.C. Elec. Ry. v.

Farrer 1955 CanLII 43 (SCC) , [1955] S.C.R. 757; Noort v. Oeppen (1954) 1954 CanLII 531 (BC CA) , 13 W.W.R. (NS) 410 (B.C. C.A.), and here those dangers were anticipated. Again: In this case the speed at which the driver proceeded through intersection must be tested by balancing the urgency of the duty to which he was responding against the danger of ... [entering the intersection on a red light at 35 miles per hour.] I am satisfied that the urgency facing the respondent was very great.

Nevertheless, to hold that the entry made at such speed in the prevailing circumstances is, with the greatest deference, to give no effect to the phrase “shall drive with due regard for safety, having regard to all the circumstances of the case,” including subsec. (3)(a), (b), (c). See also Williamson v. Sokolowski , [1991] B.C.J. No. 3930 (B.C.S.C.) . [ 35 ] In Laverty v. Patterson, 1998 CarswellAlta 1355 (Q.B.) , the facts were similar to the case at bar, except that the officer had the emergency lights on but the siren deactivated.

Wilkins J. said this: 8 The Plaintiff testified she never saw the police car until the point of impact, she did not look in her rearview mirror or left side mirror immediately prior to commencing her left-hand turn. 9 In relation to liability, the Plaintiff argued that the sole responsibility for the accident must rest with Officer Patterson. She was operating he vehicle in accordance with the rules of the road. She cannot be reasonably expected to be aware of the police car in these circumstances and therefore could not be found in breach of any duty she may have owed to that vehicle.

10 Counsel for the Defendant conceded that Constable Patterson was negligent, although pointing out that the Highway Traffic Act affords the police officer the right to operate outside of the rules of the road in an emergency situation. Counsel argued that the Plaintiff should have been aware of the police car responding to an emergency, and should have seen the emergency lights which were operating at all relevant times. She was obliged to ensure her left turn could be made in safety.

She should have checked her rearview mirror and left side mirror, which would have disclosed to her the presence of the emergency vehicle. Her failure to do so constitutes negligence, for which she should have a portion of liability attributed to her. 11 The cases cited by the Defendant in relation to the duty of driver turn left and resultant apportionments of responsibilities are not relevant to this case.

They do not involve vehicles overtaking a left turning vehicle on a four-lane city roadway near an intersection while the overtaking vehicle is being driven in a lane reserved for traffic going the opposite way. The duty of a reasonably prudent driver to yield to an emergency vehicle can only arise where that driver knows or ought to have known of the presence of that vehicle. This Court adopts the principle expressed by the Supreme Court of Canada in Adams v.

Dias (1968), 1968 CanLII 25 (SCC) , 70 D.L.R. (2d) 1 (S.C.C.), at page 5 and 7, as those principles are slightly restated here: The actions of Adams, in my view, constituted the type of folly which a driver is not bound to anticipate and no amount of experience on the highway would lead the reasonably careful motorist to consider it in any way likely that the police car with its red lights flashing ... was going to continue ... directly into his path. 12 It is hard to imagine a driving manoeuver more fraught with risk than the one undertaken by Constable Patterson.

That he should undertake such an action without activating his siren or buzzer or horn to alert other motorists ahead of his intention must surely fall within the class of events that no reasonably prudent driver could anticipate. As Miss Laverty could not reasonably have known of the presence of the police cruiser or anticipated its action, she cannot be said to have failed any duty she owed and was therefore not negligent in turning left into its path. Complete liability for this accident rests with the Defendants. See also Nagel v. Edmonton, (1978) 1978 CanLII 3240 (AB KB) , 11 A.R. 619 (Alta. Dist.

Ct.). [ 36 ] The duty on an ordinary driver is to yield to police or emergency vehicles, when he or she hears or sees, or has an opportunity under the circumstances to hear or see, emergency lights or sirens . As stated in Fingerote v. Winnipeg, (1963) 1963 CanLII 795 (MB CA) , 45 W.W.R. 634 (Man. C.A.) At 635-6: By statute, fire department vehicles are given the right of way over ordinary vehicles. A call to a fire is of such importance as to brook no delay and it is for that reason the ordinary rules of right of way are subject to the superior necessities of the situation.

But to impose upon the driver of another motor vehicle the duty of giving the right of way he must know or, in the exercise of ordinary prudence, should know that the fire department vehicle is approaching; and he must be given a reasonable opportunity to comply with the requirements of the law. The findings of fact in the instant case show that the plaintiff was not given that opportunity.

The fire department vehicle did not have an absolute right of way to the use of the traffic lane in which it was travelling; at best it had only a preferential right, and its driver was by statute required to use ordinary care when exercising that right. Sec. 56(4) of the Highway Traffic Act , RSM, 1954, ch. 112 , substituted 1960, ch. 19 , provides: “56.

(4) The driver of a vehicle to which subsection (1) applies, when exercising any of the privileges granted under that subsection, shall drive with due regard for safety having regard to all the circumstances of the case.” The facts of this particular case show that the plaintiff’s car was struck from behind. When one vehicle strikes another from behind, there is a heavy onus on the driver of the vehicle following to show there is some good reason why he should not be found at fault.

Here, the findings of fact by the learned trial judge, supported by the evidence, establish that the driver of the fire department vehicle failed to “drive with due regard for safety having regard to all the circumstances of the case.” He must meet this condition before he can exercise the privileges given to him by the statute.

[ 37 ] The Crown attempted to distinguish the Plaintiffs’ cases on the basis of the distinction between intersection and non- intersection cases. But at the end of the day, emergency vehicles cannot be driven negligently whatever the circumstances. If they are and damages occur as a result, liability will follow. Conclusion [ 38 ] There is no dispute that Constable Dunnett, driving the Second Cruiser, rear-ended the Plaintiffs’ car. In other circumstances, that might be sufficient to found liability. However, the substance of the Crown’s case is two-fold.

First, the Crown asserts that, under the statutory regime, there is an absolution from liability for operators of emergency vehicles. Second, it is the Crown’s position that the Plaintiff Daniel was negligent in that he was not paying as much attention to the circumstances on the road as he could and should have been. [ 39 ] Specifically, the Crown argues that Daniel was distracted by the music playing in his car. I do not agree.

Notwithstanding that the Plaintiff Daniel admitted that he was playing music described by his then wife as “loud junk,” on the evidence before me, I find that the music did not distract his attention from the highway. This is demonstrated by the fact that Daniel pulled over for the First Cruiser. The evidence was that there was no change in the music level between that point and the collision. [ 40 ] Further, the Crown relies on the statutory framework set out above for its position that Daniel should have pulled to the right and cleared the intersection. Again, I do not agree. As noted above, s. 103(1) (

b) of the Highway Traffic Act provided that a driver in an intersection should position his vehicle “as far as practicable” from the centre of the intersection and then remain stopped there until the emergency vehicle has passed. That is, in effect, what Daniel did. The evidence from both Daniel and Ms. Moran indicated that he was stopped in the intersection with his signal light on.

It was not “practicable” for him to do anything else, given that he had no time. [5] While there is a statutory requirement to clear the intersection, I find that the requirement also imports an element of practicability and judgment. The law does not demand the impossible. [ 41 ] I find that Daniel: - kept a proper lookout on a day when weather was not a factor; - did not drive too slow or fast; - did not otherwise operate the vehicle other than was reasonable and prudent; - did not fail to anticipate reasonably obvious risks; and - properly prepared to turn left by yielding to Ms.

Moran’s oncoming vehicle. [ 42 ] On the other side, the relief from liability for operators of emergency vehicles cannot operate where the warnings given by those vehicles cannot be noticed by responsible drivers until the point when a collision is inevitable. In this case, I cannot see how Daniel, exercising reasonable care, could have become aware of the Second Cruiser in time, given the speed of the Second Cruiser and, related to that, the road topography.

I am satisfied that Daniel had kept a proper lookout for emergency vehicles as he had already pulled over for the First Cruiser. [ 43 ] In this case, there are several actions by Constable Dunnett that cumulatively and perhaps individually take the Crown outside the bounds of the privileged status granted by the Highway Traffic Act to emergency vehicles with lights and sirens on:

- speed of at least 80 km/h in a situation close to the intersection, where there was likely a “rise” in the road preventing a clear view of the intersection; - officer looking to the right, seconds before the accident. No matter what else is going on in an emergency vehicle responding to an accident, the emergency driver must make full use of his sight and clear vision in scanning the road ahead of him or her; and - officer making no appreciable attempt to brake until just prior to impact. [ 44 ] I therefore find Constable Dunnett hit the Plaintiffs’ vehicle with little or no time for Daniel to react.

It is laudable that Constable Dunnett attempted to avoid the accident and in a split second, braked and turned his wheel right in an attempt to avoid hitting the passenger compartment. But he still hit the Plaintiffs’ car. [ 45 ] I have considered, as the Crown asked me to, whether the onus shifts to the Plaintiffs (as opposed to the Defendant as in a typical rear-end crash) because the Plaintiff Daniel paid a voluntary ticket for failing to yield. I have assumed, to give the Crown the benefit of doubt, the onus has shifted. Even on this basis, I find the Plaintiffs met their onus.

See Highway Traffic Act , s. 179 and Nanji v. Mercs, (1993) 1993 ABCA 11 (CanLII) , 135 A.R. 197 (C.A.). [ 46 ] I recognize that there is a heavy onus on left-turning drivers to avoid collisions with other vehicles in the intersection. As I have said, I accept Ms. Moran’s evidence that Daniel’s left signal was on well in advance of when Constable Dunnett said it came on. This was not a quick signal case; there would have been sufficient time to prevent the collision but for Constable Dunnett’s speed and his looking to the right. Contrast Baron v. Coolidge, [1975] W.W.D. 142 (Alta. Dist. Ct.).

On all of the facts in front of me, Constable Dunnett either was, or reasonably should have been, aware of the impending accident, allowing him to take evasive action. Vibert v. Stern , (1997) 1997 CanLII 14911 (AB KB) , 225 A.R. 1 (Q.B.); Mathieson v. Thompson, 1953 CanLII 403 (SCC) , [1953] 2 D.L.R. 604 (S.C.C.); De la O v. Chrostek, 2003 ABQB 373 . [ 47 ] The Crown correctly pointed out the Plaintiff Daniel paid the ticket for failing to yield.

In my view, in a civil case of negligence with parties suing the police, the fact that one party paid a voluntary fine via non-appearance does not impute a liability in negligence that does not otherwise exist. Put another way, paying a ticket does not automatically mean that a plaintiff must lose the civil case. However, even assuming, without deciding, that Daniel’s having paid a voluntary ticket raises a rebuttable presumption of wrongdoing, the presumption has been rebutted. I find that Daniel simply was scared and wanted no further issues with the police.

He told the Court his parents told him paying the ticket was a dumb idea. They were right. It cost Daniel $103.00 plus a lawsuit to discover how right they were. Nevertheless, while Daniel did not exercise wisdom in paying the fine, I cannot see how he was contributorily negligent. Damages [ 48 ] The Plaintiffs will recover their damages of $17,002.19 plus interest as allowed by the Judgment Interest Act . Counterclaim [ 49 ] The Defendant’s counterclaim is dismissed. Costs [ 50 ] If not otherwise agreed, costs may be spoken to within 30 days. Heard on the 16 th day of March, 2010.

Dated at the City of Calgary, Alberta this 26 th day of April, 2010. W.A. Tilleman J.C.Q.B.A. Appearances: Lorena T. Dunlop Scott Hall LLP for the Plaintiffs Barry Benkendorf Department of Justice for the Defendants [1] When questioned by Ms. Dunlop, Ms. Moran said this: (p. 65, lines 6 - 13) Q Okay. As you pull over to the right side of the road, what are you doing at this point? A As I pulled over and stopped, I looked to my – I was watching the police car come all the way up the road, and I was looking to the left as he passed me. Q And what did you observe?

A I observed the officer reaching to his right and looking to his right, and I thought to myself, He’s going to hit that little car, and I looked in my mirror, and he rear – rear-ended the car. [2] This is what Ms. Moran said about the other RCMP cruiser (and ambulances) which Ms. Wiens somehow did not hear: (p. 64, lines 6- 15) Q Okay. So the two vehicles that were on Highway 21, those were the two ambulances? A Yes. Q Okay. And it would have been the police cruiser that you had indicated turned from 583 onto Highway 21. A Yes. Q And when you made observations of these vehicles, did you do anything at that time?

A I just merged into the turning lane on my side of the road and - - because the lights and sirens were going, so I just got out of the way. [3] By statute, even in these cases, emergency responders still need to consider the circumstances on the road and the reasonableness and safety of their responding vehicle as it relates to others on the road. [4] See, eg. Highway Traffic Act , s.1 (m). [5] There was some evidence Daniel did turn his wheel to the right. If so, and he was trying to get off the road, he was attempting in a millisecond to do the impossible.