Hennessy v. Calgary (City), 2011 ABQB 143

Court of Queen ’ s Bench of Alberta Citation: Hennessy v. Calgary (City), 2011 ABQB 143 Date: 20110304 Docket: 0501 06823 Registry: Calgary Between: Bryan Hennessy Plaintiff - and - The City of Calgary and The Calgary Police Service and Aziz Ahmed Hassan and Glenn Askel Pederson Defendants _______________________________________________________ Reasons for Judgement of the Honourable Madam Justice K. M.

Eidsvik _______________________________________________________ [ 1 ] The Defendant Constable Glenn Pederson was in a training surveillance exercise and was speeding down 12 th Street SE Calgary in an unmarked police vehicle in order to catch up to the other surveillance police vehicles tracking the “target”. The Plaintiff Bryan Hennessy was turning left into a gas station on 12 th Street when the Defendant Constable collided with the side of the Plaintiff’s van. The quantum of damages for Mr. Hennessy’s injuries were agreed to.

The only issue before me was liability for the collision. [ 2 ] For the reasons that follow, I find that both the Plaintiff and Defendant Constable at fault for this collision and split the liability on the basis of 75% against the Plaintiff and 25% against the Defendant.

Background [ 3 ] At the outset of the trial, the parties agreed to a number of exhibits that went in by consent. These included an engineering report prepared by Michael Peck of Sintra Engineering, a Calgary Police Service Collision Reconstruction report, photographs, diagrams of the scene, maps of the area, a statement from Constable Pederson’s instructor who was a passenger in his vehicle, and a transcript of the evidence given before a commissioner in a trial heard on March 31, 2004 about an unsafe left-hand turn ticket Mr. Hennessy was given.

The two drivers and the supervisor of the surveillance course also gave testimony. The collision [ 4 ] Based on the above noted information, it is not disputed that Mr. Hennessy was driving his van in the most easterly southbound lane on 12 th Street NE after having gone through the intersection at McKnight Boulevard. His wife was sitting next to him. He saw a vehicle some distance away approaching him in a northbound direction on 12 th Street. Constable Pederson was in this northbound vehicle, with his instructor, and was exceeding the speed limit in order to catch up to his surveillance team. He also saw Mr.

Hennessy’s van some distance away. Mr. Hennessy felt that he had more than enough time to turn left into a gas station on the east side of 12 th Street in front of Constable Pederson and started into that turn. Constable Pederson, on the other hand, felt that the turn was made when he was too close and therefore he was left with no time to react. Accordingly, a collision ensued. [ 5 ] The basics of this collision are straightforward - however in assessing liability, the devil is in the details, and of course, in the legal analysis that needs to be done.

I will start with my findings of fact on the contentious issues - i.e. the time and distances involved leading to the collision. [ 6 ] Mr. Hennessy testified that he was driving home after having picked up his wife at a pub after work. He had had a beer and a bit while he was there. He was very familiar with the area as he used to work in the area and he used this route home all the time. He was also familiar with turning left into this gas station and said that he turned at that spot, like many others, many times before. [ 7 ] Mr.

Hennessy stated that he decided to stop and get gas while sitting at the red light at McKnight Boulevard. He proceeded down12th Street and checked for traffic for his intended turn. He was going between 20 and 30 km/h and took his foot off of the gas initially as he started into his turn. He saw a vehicle although it was so far away he couldn’t tell if it was a truck or a car (it was a Pathfinder SUV). He stated at trial that it was more than the length of a football field away (150 yards).

On cross examination he admitted that he said it was 200 feet away at the traffic ticket trial and may have said in a statement that it was 150 feet away. He stated that he was bad with quantifying distances. To clarify, he said that the vehicle was near the 45 th Avenue intersection and, in his experience, four or five cars would have been able to turn safely before a car of that distance away. [ 8 ] Mr. Hennessy stated that he put on his signal light and started into his turn in one fluid motion. His wife then screamed and yelled “what the hell is he doing?”.

He looked and saw that Constable Pederson was “right there” “barrelling down on him”. He stepped on the gas to try to complete the turn and managed to move forward a foot before he was hit (in the most easterly lane). [ 9 ] Mr. Hennessy indicated that he was turning into the most northerly of two driveways available for access to the gas station. To turn there you go over two lines that converge into a single line. [ 10 ] The next day he was given a ticket for making an unsafe left turn.

He was convicted of this offence at trial. [ 11 ] Constable Pederson had been a constable with the Calgary Police Service for 13 years at the time of the collision and was in a

training course so that he could be accepted on the Strike Force Unit. He was on the last day of the second week of the course for mobile surveillance. He was driving a 1999 Pathfinder with no police markings. It was not equipped with flashing lights or a siren. [ 12 ] Constable Pederson had been the lead vehicle following the target vehicle southbound on Deerfoot Trail. The target turned off at McKnight Boulevard to head eastbound and accordingly, according to their training, he continued southbound on Deerfoot and did not turn at the same time.

Another one of the seven unmarked police cars would take over and it was then Constable Pederson’s task to take whatever route was necessary to catch up to the last of the team of surveillance cars (“the pack”). To do this Constable Pederson sped down Deerfoot, turned left (east) onto 32 nd Avenue, passed three intersections and turned left onto 12 th Street. He was in the process of going northbound on 12 th Street, and was just past 45 th Avenue, and within 80 - 90 metres of McKnight Boulevard when the collision occurred. [ 13 ] Constable Pederson was being updated about the status of the target via the radio.

His instructor was on his cellphone. He understood that the target was still heading east on McKnight so he had to turn right at that intersection. [ 14 ] In order to catch up to the pack Constable Pederson at times would have to exceed the speed limit. Factors he would consider when driving fast, and did consider that evening, included the following: the weather, (it was dry, overcast and clear visibility), the road (dry asphalt), the topography (the road along 12 th Street was fairly straight and flat), the traffic (it was light - Mr.

Hennessy was the only other vehicle on 12 th Street at the time), the time of day (it was 7:30 p.m. so it was still light out), the area (light industrial and closed businesses except for the gas station). Accordingly, Constable Pederson felt it was safe to go 70 to 80 in a 50 km/h speed zone. Indeed he felt that he would have been safe going faster. [ 15 ] Constable Pederson said that he was through the intersection at 45 th Avenue when he first noticed Mr. Hennessy’s van less than 150 metres ahead of him proceeding southbound on 12 th Street.

Nothing worried him until the van’s front wheels jerked quickly and the van attempted to make a turn - first at a 45 degree angle. It was all one continuous motion. He did not see a signal light or lit headlights on the van. He was about 10 metres away when the van started turning. He was able only to get his foot off of the gas before he collided at the mid point of the van. He felt that he had travelled for 5 to 7 seconds between his first visualisation of the van and the impact - and that it was only a second between the start of the turn to the point of impact.

He stated at the traffic ticket trial that he thought that he travelled for “at least five seconds” and that he was 100 to 200 metres south of McKnight when he first noticed the van. [ 16 ] Constable Pederson was cross-examined about his plans to turn at the next intersection with McKnight Boulevard. Constable Pederson was unaware of the colour of the light and whether there was a yield sign he would have to obey.

He felt confident that he could have brought his vehicle to a stop in 50 metres of the 80 to 90 metres he had to the intersection if necessary. [ 17 ] At the traffic ticket trial he stated that he thought that the van was travelling in the neighbourhood of 25 km/h and that while he had his eyes on it he “noticed the vehicle slowing as it was approaching the gas station where it looked like he wanted to turn in, or where he eventually did make his turn.” [ 18 ] Sergeant Wilson, the supervisor of the course at the time, gave evidence about how the course was set up.

He said that it was up to the student to decide on the appropriate speed to go to get back to the pack. The object is to get back as soon as possible provided that its done in safety. Safety concern is for those civilians on the road, and safety of the instructor and student. [ 19 ] Sergeant Wilson was in the pack of surveillance cars a bit east of 12 th Street on McKnight Boulevard when he heard about the accident. He had last heard from Constable Pederson about 3 to 4 minutes before when he gave up the eye of the target vehicle and headed south on Deerfoot.

He was at the scene of the accident within a very short time since he was basically around the corner a couple of blocks away. [ 20 ] In his view as the supervisor, he felt that travelling at 70 to 80 km/h in the circumstances gave him no concern. He also felt that Constable Pederson had not breached any driving or Calgary Police Service policy. [ 21 ] Calgary Police Service officer Zurstegge was the instructor in the vehicle with Constable Pederson. He states in his statement

[ 21 ] Calgary Police Service officer Zurstegge was the instructor in the vehicle with Constable Pederson. He states in his statement that their vehicle was travelling 70 to 80 km/h. He felt that Constable Pederson had no time to apply the brakes or avoid the van before the collision. He makes no mention of whether he saw a signal light on the van. It also turns out that he was on his cellphone at the time. [ 22 ] The Calgary Police Service Collision Report did some measurements and velocity calculations.

In particular, Constable Hebert calculated that the Pathfinder would have had a view of the collision location for 315 metres. If it had been going 50 km/h (at 13.9 m/second) it would have taken 22.6 seconds to get there. If the Pathfinder was going 75 km/h (at 20.85 m/second) it would have taken 15.1 seconds. He also opined that the van would have taken 11 seconds getting from McKnight to the collision scene (which he estimated at 50 km/h over 155 metres).

His view was that each party would have been in sight of each other for at least 11 seconds based on the above assumptions. [ 23 ] The Plaintiff had an engineer report prepared by Mr. Peck. He did some further measurements. He found that the distance of the turn in question would have been between 13 and 17 metres and assuming either a speed of 20 or 30 km/h of the van, it would have taken it 1.56 second to turn 13 metres at 20 km/h, and 3.06 seconds to turn 17 metres at 30 km/h. Mathematics would tell us then that it would take 4 seconds to turn 17 metres at 20 km/h.

He concludes that if the Pathfinder had been doing the speed limit of 50 km/h versus 70 - 80 km/h, the collision could have been avoided as Mr. Hennessy would have had time to complete his turn. [ 24 ] In terms of findings of fact, I accept the following. Firstly, I accept that Mr. Hennessy was going rather slowly in the 25 km/h range.

He most likely put his signal light on as he was turning but I also accept that Constable Pederson may not have seen it since it was put on at the same time as the turn and it would have been less visible on the left side of the van as he turned. [ 25 ] I have some trouble with Constable Pederson’s assertion that Mr. Hennessy was only 10 (maybe 15) metres away when Mr. Hennessy started his turn. This is because if indeed Constable Pederson was travelling between 70 and 80 km/h (which I accept) he would have been covering 20.85 metres per second - Mr.

Hennessy would have only been turning for .5 of a second - even based upon the most conservative estimate of time it took to him to turn, that is well off. Indeed, if it took Mr. Hennessy between 1.5 and 4 seconds to turn (and in my view 3 seconds is the most likely scenario), Constable Pederson would have actually been between 30 and 80 metres away travelling at 75 km/h, not 10. [ 26 ] The conclusion I come to in this regard is that Constable Pederson must not have been watching as carefully as he might have been if he only noticed Mr. Hennessy 10 metres away.

Perhaps this is because he was focussed, and perhaps somewhat distracted, by his radio, his instructor was on the phone, and he had been doing this surveillance exercise for several hours by then. It is also interesting to note that based on his own evidence, he could stop within 50 m at 75 km/h (while discussing the anticipated potential stop at McKnight Boulevard if necessary). [ 27 ] I accept that Mr.

Hennessy likely only looked for northbound traffic while he started down the 80 metres or so from the McKnight intersection and must not have looked again before the actual turn - since, if he had, he would have seen Constable Pederson (perhaps surprisingly) 30 to 80 metres away - much closer than he would have anticipated. [ 28 ] I also accept that when Mr. Hennessy made the initial decision to turn, had Constable Pederson been going 50 km/h (or even 60 km/h when you do the mathematics) versus 75 km/h, Mr. Hennessy would have made it through his turn without a collision. This coincides with Mr.

Peck’s opinion (which went in by consent) and the mathematics based on the velocity calculations of Constable Hebert. If it would take Mr. Hennessy between 1.5 and 4 seconds to make his turn, and based on Constable Hebert’s assumptions, Constable Pederson travelled to the point of impact 7.5 seconds faster travelling at 75 km/h versus 50 km/h - those 7.5 seconds made the difference between a collision and a completed turn. Indeed, at least two cars may have been able to make it through. Analysis [ 29 ] There are two aspects to this case that are important to analyse.

One are the duties owed by a left turn driver in a situation like this, and second are the immunities a police officer enjoys while operating a motor vehicle for the purpose of carrying out the police officer’s duties. [ 30 ] With respect to the duties owed, counsel provided me with the leading Supreme Court and Court of Appeal cases on point (amongst others). Madam Justice Martin did an excellent

summary of these cases in her decision De La O v. Chrostek 2003 ABQB 373

and the questions that must be asked at paras. 9 through 12: 9. The driver with the right of way has been described in the authorities as the "dominant" driver, and the other driver as the"servient" driver. The governing principle in these situations was stated by Fauteux J. in Walker v.

Brownlee and Harmon, (SCC), [1952] 2 D.L.R. 450 (S.C.C.) at 461: While the decision of every motor vehicle collision case must depend on its particular facts, I am of [the] opinion that when A, the driverin the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and acollision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after Bbecame aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficientopportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that insuch circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali. 10.

That statement was judicially considered and explained in Vibert v. Stern (1997), (AB KB), 57 Alta. L.R.(3d) 325 (Q.B.), by Fruman J., as she then was. She observed at 328-31 that the Supreme Court of Canada in Walker and the subsequentdecision of Mathieson v. Thompson, (SCC), [1953] 2 D.L.R. 604 ... enunciates the principle that the dominant driver will be absolved of all liability unless the servient driver can demonstrate that thedominant driver was, or reasonably should have been, aware of the impending accident and could have taken evasive action.

Once it isestablished that the servient driver failed to yield the right of way, he must show that the dominant driver, acting with reasonable care,could have and should have avoided the accident. This obligation of proof placed on the servient driver is commonly referred to as thereverse onus provision. There is no duty upon the dominant driver to anticipate the possibility of danger, nor is there negligence in failing to take extraordinaryprecautions: Mathieson at 613.

The essential theme underlying both Walker and Mathieson is that the dominant driver has a right toassume that the servient driver will observe the law and yield the right of way. Without such an assumption, traffic would come to astandstill. The dominant driver does not have to slow down at an intersection but is always entitled to proceed, assuming that otherdrivers will take the necessary care as the conditions dictate. He needs not move at a snail's pace, but may move at a speed appropriate tothe driving conditions. ...

A collision necessitates an examination of whether, under the circumstances, the dominant driver's actions were reasonable. The servientdriver has the onus of establishing that they were not. 11. More recently in McElhatton v.

Wales (2000), 2000 ABCA 94 , 255 A.R. 183, the Alberta Court of Appeal consideredthe excerpt from Walker reproduced above and noted that: According to that test, the appellant (dominant driver) cannot be found liable unless the respondent can prove that the appellant wasaware or reasonably should have been aware of the impending accident and had an opportunity to avoid the collision which a reasonablycareful and skilful driver would have taken. ... 12. The question then is whether the plaintiff in this case has proven that:

(1) The defendant was aware or reasonably should have been aware of the impending accident; and

(2) The defendant had an opportunity to avoid the collision, which a reasonably careful and skilful driver would have taken. [31] The other factors for this left hand turning Plaintiff are the fact that he has been convicted of failing to make his left hand turnin safety.

Section 179 of the Highway Traffic Act R.S.A. 2000, c. H-8, s. 95 states that “the onus of proof in any civil proceeding that theloss or damage did not arise by reason of contravention of this Act is on the owner or driver of the motor vehicle”. Also, according tosection 79 (1) of the Highway Traffic Act, a driver shall not cross a double solid line - although he can cross a single line to make a leftturn into a driveway. [32] As noted, an important factor considered in the cases is the issue of the reasonableness of the driving of the dominant driver.In the oft quoted case of Vibert v.

Stern, Madam Justice Fruman stated that all of the circumstances must be examined in order todetermine whether the dominant driver’s actions were reasonable and the servient driver has the onus of establishing that they were not.When the issue is speed, the speed limit itself is not necessarily determinative - reasonableness is relative having regard to all thecircumstances. [33] Now turning to the immunities question. [34] According to the appropriate Highway Traffic Act sections in force at the time,

section 68.2 (1) allows a police officer tooperate the motor vehicle in excess of the posted speed limit, etc. , while not operating a siren “where, considering the circumstances, itis reasonable and safe to do so.”

Section 68.2 (3) has a caveat though. It states that “Nothing in this

section shall be construed so as topermit a peace officer to operate a motor vehicle under subsection (1) in a manner that, considering the circumstances is negligent.” [35] Mr. Justice Tillman said this about the effect of these sections in Alford v. Canada, 2010 ABQB 192 at para. 30: Nevertheless, these special privileges do not absolve police officers from liability in every circumstance.

The allowance and privileges toemergency vehicles are still subject to the consideration of all the “circumstances” which, I define to include: weather, topography,traffic, the nature of the emergency, the number of emergency responders thought to be en-route to the scene, and so on. Officers will becivilly liable if, considering all of the circumstances they are negligent.” [36] Justice Tillman reviewed many emergency vehicle cases, which on our fact pattern are not applicable, however the quotefrom C.J. Bird of the B.C. C.A. in Sinclair v.

Siddle (1965) (BC CA), 53 WWR 14 at p. 20 is instructive (at para. 34 ofAlford). There is a discussion of the balancing of the urgency and that the rights enjoyed under the Act must be exercised with dueregard to dangers that should be reasonably anticipated. In other words, a risk /rewards analysis is appropriate. [37] In applying these principles to the facts as I have found them I must determine firstly whether the Plaintiff is liable for thiscollision.

The Plaintiff conceded that he was, and argued that the liability should be shared on a 50/50 basis with the Constable. [38] I agree that the Plaintiff was liable. He was the servient driver in the circumstances and should have yielded the right of wayto the approaching vehicle. Although he had experience turning into that gas station so that he initially thought that he had enough time toturn when he saw the Constable approaching - and he would have had time to do the turn had the Constable not been speeding wellabove the usual speed limit - he should have checked again just before he made the actual turn.

He did not check again until his wifescreamed and he was already well into the turn. Further, he should have put his signal on immediately after crossing McKnight Boulevard. He did not do so until he actually started into the turn - so no proper warning was given to the Constable. [39] The fact that Mr. Hennessy crossed two solid lines (whether you characterise them as a “double solid lines” or not) is neitherhere nor there in my view. It did not contribute to this collision.

[ 40 ] I am cognisant that Mr. Hennessy has not rebutted the onus under

section 179 and I find him liable. [ 41 ] I also agree that the Constable in these circumstances is liable. Sergeant Wilson made it clear that in considering the need to speed in the surveillance training, the safety of other users on the road is paramount. Here, the other users on the road at the time were Mr. Hennessy and his wife. According to the Calgary Police Service reconstruction officer, Constable Pederson should have been able to see Mr. Hennessy as he crossed 45 th Avenue (315 metres away).

At that point, it seems to me that the officer should have reconsidered the need to speed so excessively in an unmarked car to get back to the pack. As it turns out, and as he ought to have known since he was “actively listening to the radio” about the whereabouts of the target car, the pack was just around the corner on McKnight. Presumably , he would have been near the back of seven cars at that stage.

What was the rush to get down that street at excessive speed in a training drill with no lights or siren? [ 42 ] Defence counsel indicated that he only knew where the target car was - not where the back of the pack was. If that was the case, then all I can say is that he ought to have known.

This information should be relayed to the “catching up” car so that they know if they have to drive at high speeds or not. [ 43 ] The Constable listed several factors that would make it safe for him to keep his car under control driving at high speed (the dry straight level road, clear visibility, etc.) However there seemed to be little consideration of other users of the road. Although he did mention that it was light traffic in the area at the time, it was still only 7:30 p.m. and this road was a route for some who live in the NE, such as Mr.

Hennessy and his wife, who were coming home from work. [ 44 ] It is important in this analysis that Constable Pederson noticed that there was a gas station open on that street and he also noticed at some point before Mr. Hennessy turned that he was slowing down as he approached the gas station since he “looked like he wanted to turn in”. He was aware that he was travelling at well above the speed limit - but did not even consider whether this may confuse Mr. Hennessy into believing that he had time to turn, when in fact he did not.

He never slowed down one bit, but instead kept going at a high rate of speed regardless. [ 45 ] I agree with the City’s counsel that a dominant driver does not need to anticipate danger and should be able to assume that a servient driver will yield the right of way. But that is when the dominant driver is also obeying the rules of the road, or driving reasonably. When the dominant driver is not, then that must be taken into consideration. [ 46 ] More problematic, based on the velocity evidence supplied by the experts, is that Constable Pederson failed to notice Mr.

Hennessy’s turning vehicle until he was into his turn since he only saw him 10 metres or so away. (Even if Constable Pederson is wrong on that 10 metres estimate, and he was 30 - 80 metres away instead, which is where he would have had to have been as Mr. Hennessy started the turn, then this would not explain why he didn’t brake or take evasive action. Constable Pederson stated after all that he could bring that Pathfinder to a stop within 50 metres.) [ 47 ] Accordingly, in these circumstances I find that the dominant driver’s actions were not reasonable.

The risk that Constable Pederson chose to take in driving at excessive speed did not balance at that time with the safety of the other users of the road, including Mr. Hennessy and his passenger wife. [ 48 ] To return to the Court of Appeal’s tests:

(1) Was the defendant aware or reasonably should have been aware of the impending accident ; my answer is yes, based on my above noted reasons, Constable. Pederson was aware of the impending danger of a left hand turn into the gas station as he approached and should have known that his increased speed may throw off this driver’s estimate of time that he would have to make the turn safely,

(2) Did the defendant have an opportunity to avoid the collision, which a reasonably careful and skilful driver would have taken; my answer is yes, for the reasons set out above - in reducing his speed down 12 th Street and / or noticing the turn as soon as it was started and braking in time.

[ 49 ] In short, I agree that if the dominant driver is driving in a reasonable way, there is no duty to anticipate danger. Had Constable Pederson been travelling at or slightly above the speed limit (say 60 km/h) then the City could rely on this foundation - but this was not the case.

Here the dominant driver was driving at an extraordinary speed, and, in the circumstances of this case he is not absolved by the Highway Traffic Act sections quoted above since, in my view, it was not “reasonable and safe to do so” at the time. [ 50 ] Comparatively, in my view, the servient driver must still bear the brunt of the liability for this collision. Mr. Hennessy’s negligence in failing to signal his turn sooner and look again just before he turned contributed more to the collision than Constable. Pederson’s lack of attention, poor risk analysis and excessive speed in the circumstances.

Accordingly, I assess the split at 75% against the Plaintiff and 25% against the Defendants the City of Calgary, and Constable Pederson. Conclusion [ 51 ] The Plaintiff will have judgement against the Defendants, the City of Calgary and Glenn Askel Pederson for 25% of his agreed quantum of damages and interest. Costs may be spoken to if they are not agreed. Heard on the 28 th day of February, and 1 st day of March, 2011. Dated at the City of Calgary, Alberta this 4th day of March, 2011. K.M. Eidsvik J.C.Q.B.A. Appearances: Richard J. Glenn Richard Glenn Law Office for the Plaintiff Douglas D.

Merchant City of Calgary, Law Department for the Defendants