Lushman v. Lushman, 2011 ABQB 57

Court of Queen ’ s Bench of Alberta Citation: Lushman v. Lushman, 2011 ABQB 57 Date: 20110204 Docket: 1003 10551 Registry: Edmonton Between: Samantha Lushman, an infant by her next friend, Jeff Squires Plaintiff - and - Marlene Louisa Lushman, Gerald Joseph Deriger and Alberta Motor Products Ltd. Defendants - and - Pauline Bryar, Annick Bryar by her next friend, Pauline Bryar and Valerie Jean Bryar by her next friend, Pauline Bryar Plaintiffs - and - Marlene Louisa Lushman, Gerald Joseph Deriger and Alberta Motor Products Ltd. Defendants

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ Cause of Action [ 1 ] These two actions relate to a motor vehicle accident which occurred at about 10:50 a.m. on September 26, 1998 in Fort McMurray. The accident was a two-vehicle accident between a motor vehicle owned and driven by Marlene Lushman, proceeding southbound on Franklin Avenue, and a motor vehicle owned by Alberta Motor Products Ltd. and driven by Gerald Deriger, proceeding eastbound on Alberta Drive.

Essentially, the GMC Sierra driven by Mr. Deriger struck the middle right side of the Ford Taurus driven by Mrs. Lushman. The impact was almost in the middle of the intersection between Franklin Avenue and Alberta Drive. Samantha Lushman and the Bryars were all passengers in the Lushman vehicle. Gerald Deriger was alone in the GMC Sierra pick-up truck. Samantha Lushman and the Bryars commenced separate actions. Pursuant to an order of Justice Binder, it was directed that the liability trial should be heard at the same time in each of these actions.

Justice Sulyma ordered that the actions be consolidated and transferred to the Judicial District of Edmonton from the Judicial District of Fort McMurray. This judgment is related only to liability. Issues in Dispute [ 2 ] While I will give my reasons for concluding that Mrs. Lushman bears some liability for the accident because she entered the intersection on a red light at a speed greater than the speed limit of 50 km/h, the real issue among the parties is whether Mr.

Deriger also bears some liability for the accident because he saw, or should have seen, the Lushman vehicle in time to react, apply the brakes, and either stop before there was a collision, or slow down to the point where the Lushman vehicle would have gone by the front of his vehicle before his vehicle crossed the trajectory of the Lushman vehicle. Agreed Statement of Facts [ 3 ] All parties have agreed to the following facts: 1. The collision occurred on September 26, 1998 at approximately 10:50 a.m. at the intersection of Franklin Avenue and Alberta Drive in Fort McMurray. 2.

This intersection is controlled by traffic signals. 3. At the time of the collision Mrs. Lushman was operating a grey 1990 Ford Taurus southbound on Franklin Avenue in Fort McMurray. 4. At the time of the collision, Mr. Deriger was operating a 1998 white GMC Sierra eastbound on Alberta Drive in Fort McMurray. 5. The vehicle that Mr. Deriger was operating was a demonstration vehicle owned by his employer, Alberta Motor Products, and Mr. Deriger was driving this vehicle with the express consent of Alberta Motor Products.

6. At the time of the collision, Jeffrey Michael Hollands was operating a red 1989 Chrysler Daytona and was stopped at the intersection facing northbound on Franklin Avenue. 7. At the time of the collision, Reginald Hancock was operating a pick-up truck and was stopped in the left turning lane at the intersection facing southbound on Franklin Avenue. 8. At the time of the collision, Mrs. Lushman’s vehicle was hit on the right side front fender (rear portion), front door, B-pillar, rear passenger door and rear quarter panel by Mr. Deriger’s vehicle. 9.

The posted speed limit on both Franklin Avenue and Alberta Drive was 50 kilometres per hour. 10. Weather, road and traffic conditions were not factors in the collision. 11. At the time of the collision, neither Mrs. Lushman nor Mr. Deriger applied their brakes or took any evasive action. Question No. 1: Does Marlene Lushman, as the Owner and Operator of the Ford Taurus, Bear Responsibility for the Accident? Plaintiffs’ Evidence [ 4 ] Mr. Nowicki, an expert in accident reconstruction, produced a diagram to scale of the accident scene (Exhibit 2).

The diagram as to the roadways and the positions of the vehicles on impact, as well as their resting places, is in accordance with the evidence I heard. Evidence of Marlene Lushman [ 5 ] Marlene Lushman testified that she was driving the Ford Taurus in the left lane of the two lanes southbound on Franklin Avenue. Before the intersection with Alberta Drive, a third turning lane begins to her left. Mrs. Lushman did not move into the turning lane.

She remembers the traffic light ahead of her turning yellow; she remembers taking her foot off the accelerator and turning her head to the side to talk to her daughter Samantha, who was seated in the rear seat on the right passenger side. She remembers nothing more prior to the accident. [ 6 ] Mrs. Lushman said that she was up the night before because Samantha had an earache. The purpose of this trip was to take Samantha to the hospital to see a doctor, but she was not in any particular hurry. She does not claim to have been sleepy.

She believes her vehicle was decelerating. [ 7 ] At examinations for discovery she stated that she knew the yellow light was going to turn red and she intended to stop for it. Marlene Lushman paid a voluntary fine for a red light violation, but I place little probative value on that fact since she was in Edmonton with her badly injured daughter at that time, and could not conveniently return to Fort McMurray to contest the $57 violation ticket. Evidence of Pauline Bryar [ 8 ] Pauline Bryar is the mother of Annick Bryar (age 8 at the time of the accident), and Valerie Jean Bryar (age two months at

the time of the accident). Pauline was in the passenger side front seat. Her daughter, Annick, was in the rear passenger seat behind thedriver and the child was in a back-facing child restraint car seat. Pauline Bryar was seriously injured in the accident. She lostconsciousness for some indeterminate period of time and her face was badly cut on the right side. She noted no problems with Mrs.Lushman’s driving prior to the accident. Her last recollection prior to the accident was that she was looking at the amber light with herhead raised in order to see the traffic light.

She does not know, from surrounding landmarks, where she was with respect to the vehicle’sdistance from the traffic light. She has no actual memory of the accident. She has no idea as to what speed the vehicle was travelling. Evidence of Samantha Lushman [9] Samantha Lushman was eight years of age at the time of the accident and was 21 years of age at the date of trial. Her lastrecollection before the accident was that her mother had turned her head to say something to her. She has no other recollection of theaccident.

Other Potential Witnesses [10] It was conceded at trial that Annick Bryar had no recollection of the accident and could give no useful evidence. It wasagreed that I would make no adverse inference against the Plaintiffs for not calling Annick Bryar as a witness. It was also conceded thatthe police photos, reports and diagrams relied upon by the experts in coming to their conclusions, were evidence admissible under theprinciples in Ares v. Venner, (SCC), [1970] S.C.R. 608 as records.

Defendants’ Witnesses [11] I am proceeding in this narrative with the evidence of the three eyewitnesses to the accident before dealing with the expertwitnesses’ evidence in detail because, in my view, the evidence of the expert witnesses, except for Mr. Nowicki’s scale diagram of theaccident scene (Exhibit #2) and the speed calculations of the vehicles upon impact, are not useful in determining whether MarleneLushman bears some responsibility for the accident. Gerald Deriger [12] Mr. Deriger was born in March 1951. He was 47 years of age at the time of the accident and 59 years of age at the time oftrial.

At the time of the accident, he worked as a car salesman for the Defendant, Alberta Motor Products Ltd. His residence and workwere such that for years before and after the accident he would drive through the Franklin Avenue and Alberta Drive intersectionapproximately ten times per day. I gather that Alberta Drive turns to the left to go straight east to the intersection. He does not know howfar back from the intersection the turn is. Mr. Nowicki shows Alberta Drive as straight for 42 metres, before it intersects FranklinAvenue (my measurement from scale drawing). [13] When Mr.

Deriger first saw the traffic light at the intersection, it was green. He testified that when he approaches a greenlight, he tends to slow down to enter the intersection. He believes he applied the brakes just to slow down. He says that as he approachedthe intersection, he checked left and saw a pick-up truck stopped at the light, but he is not sure which lane the truck was in. From Mr.Hancock’s evidence, there remains no question that this vehicle was Mr. Hancock’s truck and it came to a stop in the left-hand turninglane for vehicles southbound on Franklin Avenue. Mr.

Deriger then looked right and saw a small red car stopped and facing north aswell. From Mr. Hollands’ evidence, I am satisfied that this red vehicle was his Dodge Daytona which came to a stop in the right-handlane immediately left of the turning lane for northbound traffic. The position of the Hancock vehicle and the Dodge Daytona at point ofimpact is accurately depicted on the Nowicki scale diagram. [14] Mr.

Deriger then testified that he proceeded through the intersection, looking ahead for pedestrians and vehicles because hewas entering a parking lot for the shopping mall where, I find, he could reasonably expect pedestrians and vehicles to be moving. [15] I find that the Deriger vehicle and the Lushman vehicle collided as depicted in the Nowicki diagram; the Deriger vehicle t-boned the Lushman Ford Taurus.

[ 16 ] Mr. Deriger testified that he never saw the Lushman vehicle before the accident. His head hit a window. When he gave a statement to the police he was groggy and dazed. The injury to his head required three stitches to close. I commented at trial that at a very short distance apart, the drivers would likely have seen the other vehicle, probably at a time when the accident was inevitable. Because of the severe impact, I am not surprised that neither claims to have seen the other vehicle prior to impact, even if at the last moment, they must have seen the other vehicle. [ 17 ] Mr.

Deriger did not know his exact speed at any time, nor did Mrs. Lushman, but the approximate range of these speeds can be gleaned from the experts’ evidence (the Plaintiffs’ expert, Mr. Nowicki, and the Defendants’ expert, Mr. Friesen), whose calculations indicate speeds generally in the same range. [ 18 ] In cross-examination it was established that Mr. Deriger was aware of the apartment building and trees to his left as he approached the intersection as shown on Exhibit #2. He did not know if one could see traffic on Franklin Avenue north of the intersection, through the trees. Mr.

Deriger agreed he had not mentioned the Hancock truck in his statement to the police. He testified that at this time he was dizzy. [ 19 ] In further cross-examination, Mr. Deriger agreed that it was a clear day and, although the sun rises in the east and he was travelling in an easterly direction, he had no recollection that the sun was a problem. He also testified that he had not given any further thought as to how the accident could have happened when he later continued to drive through that intersection on a daily basis.

That seems a little surprising to me, but does not detract from my overall impression that he was a truthful witness, especially since his evidence that he entered the intersection on a green light is strongly corroborated by the evidence of Mr. Hancock and Mr. Hollands who are independent witnesses. That his speed was reasonable (30 to 34 km/h) in a 50 km/h. zone, suggests that he had the time to keep a proper lookout and that he was a careful driver. Reginald Hancock [ 20 ] Mr. Hancock was born September 4, 1952.

At the time of the accident he was 46 years of age, and was driving a metallic red Dodge pick-up truck. He testified that he was proceeding south on Franklin Avenue and moved into the left-hand turn lane. The light turned yellow and, as he came to the end of the lane, it turned red. He intended to turn into Plaza Two, the same shopping mall that Mr. Deriger was going to. When the light turned red, he stopped. He estimated he was stopped for “maybe two seconds”. In cross- examination, he conceded that it might have been less than two seconds. He then saw the Ford Taurus to his right, in the adjacent lane.

It went by him and the accident occurred. He denied that at any time before the accident, the red light would have turned green. In cross- examination, he estimated that the turning lane was at least five car lengths long. No evidence was led that Mr. Hancock knew any of the persons involved in the accident. Jeff Hollands [ 21 ] Mr. Hollands was born July 5, 1975. He was 23 years of age at the time of the accident. As he was stopping in the lane to the right of the turning lane, driving his Dodge Daytona northerly on Franklin Avenue, he noticed the light turn from green to yellow.

He came to a complete stop and the light turned red. He then looked down to change a CD on his CD player. As he was looking up, the accident occurred. He testified that he was stopped three seconds before the accident happened. He has no recollection of seeing the Deriger pick-up truck. In both direct and cross-examination, he maintained his estimate of three seconds between the time he stopped for the red light and the accident. He was not asked if he knew any of the parties involved in the accident, so I treat he and Mr. Hancock as independent witnesses.

Other Evidence [ 22 ] The only other evidence that is relevant is that Mr. Nowicki estimated the Lushman vehicle speed at the time of the accident, using conservation of momentum, at 55 to 63 km/h., and in doing his calculations used an average speed of 59 km/h. Mr. Friesen, using the same conservation of momentum theory, arrived at a speed at the time of the collision of 56 km/h. for the Lushman vehicle and 31 km/h. for the Deriger vehicle. No explanation was proffered to explain why using the same theory, one expert arrived at a range of speed and the other expert arrived at a specific speed.

Very little turns on this.

[23] The only other comment I make is that no one was sure whether the traffic control lights operated in such a way that for atime, the signal would be in red phase for all directions. Given all the evidence, it seems improbable that there was an all-red phase.There also is no evidence of the light sequences as far as how long the green light, yellow light, and red light to green light phases wouldlast, so no determination of who was facing what light based on the time of the accident can be made.

Conclusion (Question No. 1) [24] The evidence is overwhelming that the Lushman vehicle proceeded through a red light that had been red for much more thana split second, and even as much as two or three seconds, according to the evidence of Mr. Hancock and Mr. Hollands. Mrs. Lushman’sexplanation that she knew the light would turn red and intended to stop makes no sense as there was no braking and she was fully in themiddle of the intersection at a speed of at least 56 km/h. The most reasonable explanation is that she diverted her attention from the roadand the traffic light in order to speak to her daughter.

Pauline Bryar’s evidence is that all she remembers is seeing a yellow light whenlooking up; this suggests that the Lushman vehicle entered the intersection on a yellow light. Ms. Bryar has no other recollection ofdistance or speed, and her evidence cannot be reconciled with that of the two independent witnesses. No other evidence, including that ofMrs. Lushman, suggests that the Lushman vehicle entered the intersection on a yellow light, so I decline to make that finding. AlthoughMr.

Deriger is an interested party, I accept his evidence that he approached a green light with some care and attention to traffic to his leftand right, and then proceeded through the intersection and at that point was paying more attention to traffic beyond the intersection. Hisreasonable speed indicates care. Of course, I am taking judicial notice that during the time Mr. Hancock and Mr. Hollands were facing ared light, Mr. Deriger was facing a green light which would, after a time, become a yellow light, while Mr. Hancock’s and Mr. Hollands’light remained red.

Indeed, all counsel seem to take that as a given. [25] Mrs. Lushman contravened s. 109 of the Highway Traffic Act, R.S.A. 1980, c. H-7, which reads, in part, as follows: 109(1) When a red light alone is shown at an intersection by a traffic control signal, the driver of a vehicle approaching the intersectionand facing the red light (

a) shall stop immediately before entering the marked crosswalk on the near side of the intersection or, if there is no such markedcrosswalk, then immediately before entering the intersection, and (

b) shall not proceed until a traffic control signal instructs him that he is permitted to do so. [26] The legal consequence of doing so is clarified in s. 179 of the Highway Traffic Act, which reads as follows: 179 If a person sustains loss or damage arising out of the operation of a motor vehicle on a highway and if that motor vehicle is operatedin contravention of this Act, the onus of proof in any civil proceeding that the loss or damage did not arise by reason of the contraventionof this Act is on the owner or driver of the motor vehicle. [27] Mrs.

Lushman has not satisfied me that the accident did not arise by reason of her contravention of the Highway Traffic Actand therefore I conclude that she is liable for the accident. That finding, by itself, does not absolve Mr. Deriger from also being liable forthe accident, and I will now turn to the law and the facts to determine the next question. Question No. 2: Does Gerald Deriger, as Operator of the Dodge Ram Vehicle, and its Owner, Alberta Motor Products Ltd., Bear Responsibility for this Accident? The Law [28] In the early case of Walker v.

Brownlee, [1952] 2 S.C.R. ix (note), (SCC), [1952] 2 D.L.R. 450, JusticeCartwright set out the law with respect to the duty of care owed by the dominant driver to the servient driver (at p. 461 [D.L.R.]):

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. [29] This principle has so often been cited by subsequent Courts that it may be said to be trite law. [30] The second principle that emerges is that the dominant driver is entitled to expect that a servient driver will obey the rules ofthe road.

In this case, Mr. Deriger was entitled to assume that Mrs. Lushman would stop for a red light. This principle was affirmed ofMcElhatton v. Wales, 2000 ABCA 94, 255 A.R. 183 (at para.17) : In the instant case there was no evidence that the appellant was aware of the risk posed by the respondent’s negligence, or failed to takereasonable evasive action. The appellant as the dominant driver was entitled to assume the respondent would obey the rules of the road. [31] In Weegar v.

Gerk, 2006 ABCA 4, 376 A.R. 219 the Justice at trial held the dominant driver partially liable for an accidentwhere the servient driver had entered the intersection on a red light. The trial judge found that the plaintiff was travelling too fast to stopwhen the light turned yellow. The Court of Appeal reversed the finding of negligence on the part of the dominant driver, holding there isno duty to slow down for an intersection absent something which indicates that travelling at such a speed is unsafe.

That judgment seemsto be authority for the proposition that you are entitled to enter an intersection on a yellow light, at or near the speed limit, because thelight sequences are timed so that you can clear an intersection before the light turns red. It does not absolve the dominant driver fromkeeping a proper lookout. [32] However, the Supreme Court of Canada had also imposed a duty of care on the dominant driver to pay proper attention andproceed and react to what he ought to see or have seen. That, essentially, is the argument of the Plaintiffs in this case. They say thatnotwithstanding the fact Mrs.

Lushman went through a red light, Mr. Deriger should, by the exercise of reasonable care, have seen theLushman vehicle, realized it was not going to stop for the red light, and have applied the brake in an emergency fashion. They argue thathad he done so, the accident would have been averted. This duty of care by the dominant driver was set out in the following passage fromthe judgment of Kellock J. in Thériault v. Huctwith, (SCC), [1948] S.C.R. 86 (at pp. 99-100): This was said with reference to a right-of-way in favour of a street-car but that does not in my opinion affect the point underconsideration.

In that case the operator of the street-car and the driver of the automobile which collided with each other were both heldguilty of negligence contributing to the accident, a result which could not have been reached had the right-of-way of the street-car beenregarded as of the nature for which the respondents here contend. Davis J. applied to the circumstances of the case before him the testlaid down by Lord Dunedin in Fardon v. Harcourt-Rivington [48 T.L.R. 215 at 216]: The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal.

If the possibility of thedanger emerging is reasonably apparent, then to take no precautions is negligence; but the possibility of danger emerging is only a merepossibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinaryprecautions. He then concluded: In my view, had either the motorman on the street-car or the driver of the automobile used due care or caution, the collision would nothave taken place; and that was substantially the view taken by the learned trial judge.

Applying the above to the case at bar, it is evident that Brandon was oblivious to other traffic, such as the appellant, whom,notwithstanding what he says, he did not see as he ought to have seen, and whom had he been paying proper attention, he could have

avoided, if by no other means, by the slightest deviation of his vehicle to the south. This in effect is the finding of the learned trial judge,and therefore the fact that he had the statutory right-of-way does not, in the circumstances, absolve him from his failure to act as hecould and should, had his inattention and probably also his excessive speed not prevented his so doing.

I am therefore of opinion that thelearned trial judge was right in the conclusion to which he came. [33] I note that the accident in Thériault occurred at an unmarked rural intersection where the drivers could see each other inample time to stop and the only rule of the road applicable was that an approaching driver at an unmarked intersection should yield theright-of-way to the vehicle on the right. [34] Egbert J. in Ruff v. Hetesy, (AB CA), [1957] A.J. No. 15 21 W.W.R. 595 (Alta.

S.C.) (at paragraph 10),affirmed the principle in Thériault, but its facts are clearly distinguishable from this case because the court found that in regards to thedefendant, Pitzoff, he was not keeping a lookout at all: For a man to proceed along a public highway, and to approach an intersection looking “straight ahead” and looking neither to the rightnor left, and finally to observe a car directly in his path in an intersection, when it is too late to take any correcting action, can hardly beclassed as other than negligence - as a complete failure to keep a proper lookout. [35] In MacCrimmon v.

Cherniwchan, 2005 ABQB 195, 23 C.C.L.I. (4th) 64, Clackson J. dealt with a servient driver who wasturning left at an intersection allowing a left turn on a flashing green advance light. When that light ceased to show the blinking advance,it becomes a solid green for drivers in both directions. The result is that when the advance light stops blinking, the driver going straightahead has the right-of-way over the driver turning left across his path.

Justice Clackson found as a fact that the turn was made after theblinking light had ceased, so that the plaintiff had to yield the right-of-way as the servient driver. [36] Justice Clackson stated the law as follows, and I agree with his statement of law, at paragraphs 14 through 17: In this case, the focus is on whether, in the circumstances, the dominant driver must do something other than blithely rely upon his rightof way.

It is trite law that a driver with the right of way entering an intersection is not obliged to yield or stop or plan to do either in deference toan unexpected and unlawful manoeuver by a servient driver. Much of the authority provided to me by the parties confirms that principle. However, it is also clear that a driver in a dominant position (having the right of way) cannot simply blindly proceed without regard tothe circumstances. The balance is struck by casting an onus on the person who seeks to have the dominant driver found negligent. In this case, Ms.MacCrimmon has that onus. Ms.

MacCrimmon must show that the dominant driver, Mr. Cherniwchan, knew or by exercise of reasonablecare ought to have known that a servient driver was about to encroach on his path of travel. The servient driver, Ms. MacCrimmon, mustalso show that the dominant driver would of had sufficient time to avoid the accident at the moment of real or imputed knowledge andthat a reasonably careful and skillful driver in his position at that time would have acted to avoid a collision. [37] Justice Clackson found the dominant driver 35% negligent. His findings at paragraph 18 are: 1.

That just before the accident other vehicles had just completed turning across the southbound lanes of 97th Street. 2. That the Defendant's focus was not upon the traffic in front of him but the lights controlling turning traffic. In short he was timingthe lights.

3. That the only way the Defendant could have been travelling at or near the speed limit just before his light turned green was if hewas timing the light by reference to the turning lights governing vehicles turning from 97th Street south and east onto 137th Avenue. 4. That had the Defendant been focused on the traffic before him he should have seen the Plaintiff and stopped. 5. A prudent driver would have slowed for the red light to a speed far less than Mr.

Cherniwchan's given that the light governing histravel did not turn green until he was approximately one car length from the intersection. [38] On the facts, I note the risk taken by the dominant driver, timing of the lights, and an obvious difference between that caseand this case. The two drivers were basically facing each other, almost head-on, and had to be aware and should have been concentratingon each other. [39] The Plaintiffs also cite Hohol v. Pickering, [1982] A.J. No. 800, 35 A.R. 181, aff’d 1984 ABCA 34 , 51 A.R.321(CA).

There was a specific finding that Pickering (the dominant driver) was approaching a rural intersection, visibility was good,and Pickering should have seen the approaching driver. There was also a finding of excessive speed on the part of Pickering, given theslippery condition of the country road. There was an apportionment of liability. [40] I think a fair

summary of the duty owed by the servient driver, Mr. Deriger, in this case is that he is not absolved fromliability if: (

a) he does not keep a proper lookout; (

b) he does not see and perceive a danger when he should have seen the danger and he had enough time to react and avoid thecollision; (

c) he was not otherwise negligent; examples are excessive speed, sleep deprivation, intoxication, special lighting or weatherconditions, etc.; (

d) in this context he is entitled to assume that the Lushman vehicle would obey the law and stop for a red light. Expert Evidence [41] The Plaintiffs’ expert is Paul Nowicki of Anderson Associates Consulting Engineers Inc. He is a duly qualified accidentreconstruction specialist. His qualifications were not disputed. He was a Mechanical Engineering Technologist in 1994 and has beeninvolved full time in accident reconstruction and investigations since that time. [42] The Defendants’ expert is J. Dwain Friesen of Renneberg – Walker Engineering Associates Ltd.

His experience is initially asan R.C.M.P. officer where he specialized in accident investigation and attended a number of courses. Essentially, as an R.C.M.P. officer,he investigated motor vehicle accidents full time from 1984 until he joined Renneberg – Walker in 1995 as a forensic collisionreconstructionist. In July 1998, he was primarily engaged in his capacity as Director of Training and as a driving instructor. Hisqualifications were not seriously challenged. [43] Attached to both experts’ reports were the police photographs. Mr. Nowicki produced a scale drawing reconstructing theaccident (Exhibit #2).

There was no major disagreement with respect to the position of the vehicles of Mrs. Lushman, Mr. Deriger, Mr.Hancock and Mr. Hollands as depicted in Exhibit #2 at the time of the accident and the final resting position of the two vehicles involved

in the accident is as shown in the diagram. [ 44 ] There is one other significant problem with taking those vehicle positions as reliable. That is that Mrs. Lushman testified that she slowed her vehicle when she saw the yellow light. Mr. Deriger testified that he braked in order to proceed more slowly through the intersection. Mr. Nowicki’s position of the vehicles at the 3, 2 and 1 second intervals assumes the speeds of 59 km/h and 32 km/h.

If, as deposed to by the operators, these vehicles were actually going faster than the above speeds as they approached the intersection, the calculation is somewhat inaccurate and it would follow that Mr. Deriger would have had less time to see the Lushman vehicle, perceive that it was not going to stop before the intersection, react by braking hard, and have the brakes actually take hold. [ 45 ] Mr. Nowicki’s diagrams shows a complete obstruction of sightlines by the apartment building until three seconds before the collision. In his report Mr.

Nowicki wrote: The sightlines available at the scene, given the calculated vehicle speeds, would have allowed Mr. Deriger between 2 to 3 seconds to perceive the Ford Taurus, react and avoid the collision. At the position where Mr. Deriger’s GMC was located approximately 3 seconds prior to impact, he would have had intermittent visibility of the Ford Taurus due to tree trunks, sign posts and fence posts that were in the immediate sightline. At the position where Mr. Deriger’s GMC was located approximately 2 seconds prior to impact, he would have had clear sightlines of the Ford Taurus. [ 46 ] Mr.

Nowicki did not visit the scene. An associate visited the scene in May of 1999 and took some photographs. Mr. Friesen visited the scene in May of 1999 and took more photographs. Mr. Nowicki opined that the foliage was quite high so that only the tree trunks would obscure the view. The police photographs are not helpful because none were taken which would show the sightlines Mr. Nowicki drew. However, it is clear that on the day of the accident the trees appear to be in full foliage. When Mr. Nowicki’s photographs B12 and B20 were taken, there is no foliage on the deciduous trees. Mr.

Friesen’s photographs show the deciduous trees to be at least in partial foliage. They also show vehicles parked to Mr. Deriger’s left which would further obstruct the view. [ 47 ] At 3 seconds, according to Mr. Nowicki, the sightlines for Mr. Deriger was 56 0 at 3 seconds, and at 54 0 at 2 seconds. At best, Mr. Deriger could be said to maybe have been able to detect some movement of the Lushman vehicle through the trees and the fence, just out of the corner of his eye in his peripheral vision. I conclude, given his evidence, that he did not see the Lushman vehicle prior to impact.

I certainly cannot conclude that he saw the Lushman vehicle at all in the 3- to 2-second interval, especially not with a sufficient view to gain any impression that the Lushman vehicle posed a danger. [ 48 ] Mr. Nowicki then noted in his report: The perception/response times of an average driver, given the scenario at hand, ranged between 0.8 to 2.3 seconds, depending on where the driver was looking and whether or not he was hovering the brake or applying the throttle at the time of initial perception of the hazard.

If the driver was looking straight ahead and had his foot on the accelerator, an average perception time of 2.3 seconds would apply. If the driver was looking straight ahead and had his foot hovering the brake, an average perception time of 1.9 seconds would apply. However, if the driver was looking at his left toward the approaching southbound traffic and had his foot on the accelerator, a perception/response time of 1.2 seconds would apply and if he was hovering the brake, a perception/response time of 0.8 seconds would apply.

There were clear sightlines of the approaching Ford Taurus for more than 2 seconds giving Mr. Deriger 0.8 to 1.2 seconds to brake. The intermittent visibility around the corner was an additional 1 second. Given the GMC speed of 30 to 34 km/h, the vehicle could have been brought to a complete stop prior to impact had Mr. Deriger applied the brakes in an emergency type fashion in less than 5.75 meters from the point of impact while located 0.65 seconds from the point of impact. Furthermore, had Mr.

Deriger applied the brakes as little as 0.55 seconds prior to the collision, the Ford Taurus would have cleared the area of impact and the collision would have been avoided. Given the perception response data, vehicle speeds and available sightlines, the collision was avoidable had Mr. Deriger been looking at the left at the southbound traffic lanes prior to entering the intersection and applied the brakes as late as 0.55 seconds prior to impact. [ 49 ] I find that I cannot conclude that Mr. Deriger was hovering over the brake. He testified that he applied the brake as he

approached, but there is no evidence as to where his right foot was after that. Although he testified that he looked to the left at some point and saw the Hancock vehicle, and then looked to his right and saw the Hollands vehicle and then looked straight ahead, I cannot conclude that at the time he could have perceived the Lushman vehicle as a danger. He was looking straight ahead, so the 2.3 second time interval would apply for perception and response, and then a further .55 seconds is required for the Deriger vehicle to stop. [ 50 ] Using Mr.

Nowicki’s figures, the total time required is 2.85 seconds, more than the 2 seconds in which I find Mr. Deriger may have had clear sightlines. Even that conclusion is not without some assumptions, one of which is that there were no vehicles travelling in the lane to the right of the Lushman vehicle that might obstruct a view of the Lushman vehicle. There is no evidence at all from any witness on that point. [ 51 ] Mr. Nowicki’s conclusions are set out in his report as follows: 1. At the time of impact, the Ford Taurus was traveling at 55 to 63 km/h. 2.

At the time of impact, the GMC Sierra was traveling at 30 to 34 km/h. 3. Neither driver attempted to avoid the collision prior to impact by means of braking or steering. 4. The northwest corner presented approximately 3 seconds of intermittent sightlines and 2 seconds of clear sightlines to both drivers approaching the intersection. 5. Had Mr. Deriger, the driver of the GMC Sierra, looked to his left prior to entering the intersection, he could have seen the approaching Ford Taurus and would have had sufficient time to perceive, react and avoid the collision by means of braking. 6. Had Mr.

Deriger applied the brakes as late as 0.55 seconds prior to impact, the collision could have been avoided. [ 52 ] Generally, I agree with the first two conclusions above, but I note that Mr. Nowicki does not say in his conclusions that he assumes for his time calculations that the vehicles maintained that same average speed for the 3-second intervals. That conclusion is not supported by the evidence. As to conclusion #4, I find that between 3 seconds and 2 seconds the intermittent sightlines would not have been of assistance to Mr.

Deriger in perceiving a danger even if he saw the Lushman vehicle out of his peripheral vision through the trees and the fence. His evidence of looking to the left and seeing the Hancock vehicle would not indicate he was looking from 56 0 to 54 0 to the left. As to conclusion #6, that is a fair assumption based on a dry, paved roadway and a vehicle with average tires and average brakes. [ 53 ] Conclusion #5 assumes he looked to the left up Franklin Avenue. That he looked sufficiently to the left to see the approaching Lushman vehicle, and perceive that it was not going to stop is not supported by the evidence.

The best that can be said is that it is a mathematical possibility that he could have avoided the collision if he saw the Lushman vehicle and focussed on it as soon as there was a clear, unobstructed sightline. Mr. Friesen opined as follows: The view obstructions, (i.e. apartment, fence, sign, trees and parked vehicles, if any), between the two drivers would make it highly improbable that either driver would have enough time and distance to perceive, react and avoid the collision. (That may be a moot point for Ms.

Lushman as she failed to react to the red traffic light.) Accepting that the speed of each vehicle was constant for at least 2 seconds prior to impact places each vehicle approximately at the point of possible perception, (in other words, at more than 2 seconds prior to the collision, the view obstructions would likely have made it physically impossible for the drivers to see the other.) [ 54 ] I agree with Mr. Friesen’s conclusion that at best there were 2 seconds when Mr. Deriger could have seen the Lushman vehicle. Mr.

Friesen then says the texts have used about 1.5 seconds as normal perception and reaction time but on this point he says:

The issue of perception and reaction time is very complex and it is very dangerous to accept a value of 1.5 seconds, or any other value, as appropriate to all situations. Two main issues must be considered when dealing with perception and reaction: point of sight and expectancy. Dealing with point of sight, in order for perception and reaction to take place, the individual, Mr. Deriger in this case, must have been looking at the precise point where the Lushman Taurus was about to appear. If he was looking anywhere else, it would not be possible for him to perceive it.

He may have been looking for traffic on his right, he may have focused on the traffic signal, checked his rear view mirror, etcetera. Even if Mr. Deriger, or any other driver in his position, was looking straight ahead while at a position 2 seconds from the intersection, the Lushman Taurus would be at angle of approximately 56 degrees. That would put the Lushman Taurus into his vision periphery and the ability to detect the vehicle there would be significantly more difficult. The second issue, expectancy, affects a person’s perception time significantly.

Any time an expectancy violation occurs, perception time increases. In this case, it would be reasonable for Mr. Deriger to expect that all vehicles on Franklin Avenue would stop for the traffic light. [ 55 ] I find these comments about perception and reaction helpful. It is clear to me that a careful, prudent driver is less likely to perceive an unexpected event as quickly as an expected event. In fact, some of the cases cited above endorse the principle that a driver is entitled to expect other drivers to obey the law. [ 56 ] In his rebuttal report, Mr. Friesen again makes the point that Mr.

Deriger not only has to be looking at the Lushman vehicle but he must perceive it as a hazard before he can be expected to react. Mr. Nowicki countered in his evidence that the software program he used takes all that into account, including whether the scene is an urban intersection as opposed to a rural intersection. The software program relies upon the average of many studies and, of course, the average driver.

When I consider the scene here at about 10:50 a.m. on a Saturday morning, an intersection at a shopping plaza, three lanes of traffic north and south, one wide lane of traffic east and west, parking allowed at least on the north side of Alberta Drive, the very short time involved – seconds, I find it difficult to conclude that a software program can be devised that will fairly and accurately and with precision estimate the time Mr. Deriger should have had to avoid the collision. On the whole, I endorse the following comment from Mr. Friesen: On the whole, Mr.

Nowicki has not adequately considered the myriad of stimuli on a driver approaching an intersection on a green light while in a moving vehicle and how that impacts on the perception/reaction time. [ 57 ] I believe that the cases cited by the Plaintiffs are distinguishable on the facts from this case. In MacCrimmon v. Cherniwchan , the two vehicles were almost facing each other. The dominant driver was going straight ahead; the servient driver was turning left across the dominant’s driver’s path. There was no question that both drivers ought to have been looking almost directly at each other.

The dominant driver was timing the light so he could enter the intersection on a green light. The finding of the trial judge was clear. Had the Defendant been focussed on traffic before him (as surely he should have been), he should have seen the Plaintiff and stopped. Mr. Deriger was not, in my view, under any obligation or duty to focus on a vehicle which at the 2-second mark was about 66 feet back from the intersection, i.e. over three car lengths. [ 58 ] In Hohol v. Pickering and Ruff v.

Hetesy the collisions occurred at rural intersections where the dominant driver, with the exercise of a proper lookout, could have avoided the accident. These are cases where the servient vehicle should have been seen and there would have been time to avoid the collision. Conclusion (Question No. 2) [ 59 ] The Plaintiffs have not established that if Mr. Deriger saw the Lushman vehicle as it came past the trees and fence, he could have avoided the collision. The Plaintiffs have not established that he was looking in the direction of the Lushman vehicle at any time when he could have had time to avoid a collision.

He was travelling at a moderate rate of speed, well under the speed limit and was aware of the traffic to the left and right of the intersection. [ 60 ] The onus on the Plaintiffs is set out in the quotation from Paragraph 34 of Walker v. Brownlee . [ 61 ] Mrs. Lushman was required to stop at the stop light; Mr. Deriger had the right to expect and therefore to proceed on the basis that Mrs. Lushman would stop at the intersection. However, if Mr. Deriger ought to have seen that Mrs. Lushman, without stopping, was proceeding into the intersection, then a duty devolved upon him to use due care to avoid a collision.

In my view, the Plaintiffs have failed to prove that Mr. Deriger ought to have seen the Lushman vehicle in time to avoid the collision.

[ 62 ] The Plaintiffs have not established that the Defendants Deriger and Alberta Motor Products Ltd. bear any legal responsibility for this accident. Accordingly, the actions are dismissed as against them. Marlene Lushman is entirely responsible in law for this accident and there will be judgment against her for the amount of damages proved at a separate trial. [ 63 ] The parties may speak to costs within 30 days of this judgment. Heard on the 17 th , 18 th , 19 th , and 20 th , days of January, 2011. Dated at the City of Edmonton, Alberta this 3 rd day of February, 2011. R.P. Marceau J.C.Q.B.A.

Appearances: Dennis L. Picco and Jennifer McDonald (Fraser Milner Casgrain LLP) for the Plaintiff, Samantha Lushman Hervé H. Durocher (Durocher Simpson Koehli & Erler) for the Plaintiffs, Pauline Bryar, Annick Bryar and Valerie Jean Bryar Raymond C. Purdy, Q.C. and George (Joe) Chivers (Brownlee LLP) for the Defendants, Gerald Joseph Deriger and Alberta Motor Products Ltd. Bryon D. Baltimore (McCuaig Desrochers LLP) for the Administrator/Alberta Motor Vehicle Accidents Claims Act