Blackburn v. R.

2001BCSC1076 Citation: Blackburn v. HMQ, RCMP and Leyh Date: 20010724 2001 BCSC 1076 Docket: 07228 Registry: Prince George

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

TRACY IDELLE BLACKBURN

PLAINTIFF AND:

HER MAJESTY THE QUEEN ROYAL IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, ROYAL CANADIAN MOUNTED POLICE AND LESLIE M. LEYH

DEFENDANTS

REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE I.C. MEIKLEM Counsel for the Plaintiff: D. Byl/S. Moldowan Counsel for the Defendants: J.C. LeBlond Date and Place of Hearing/Trial: April 9 to 12, 2001 Prince George, BC [1] The main issue in this case is determining liability for an intersection collision between a police vehicle with lights and siren activated and a 1985 Toyota driven by the hearing-impaired plaintiff proceeding on a green light. [2] The accident occurred at approximately 4 p.m. on June 13, 1996 at the intersection of Highway 16 West and Ferry Avenue. Ms. Blackburn was travelling northward on Ferry Avenue in the lane closest to the curb and sidewalk. At that point on Ferry Avenue there are two lanes for northward through traffic and two left-turn lanes for traffic turning westward on Highway 16. (There is also a right-turn lane.) [3] R.C.M.P. Cst. Leyh (now Corporal) was proceeding eastward on Highway 16, responding to a radio dispatch to a vehicle roll-over with injuries on Highway 97 south of Prince George. The highway lane configuration as he approached Ferry Avenue was four lanes, including a left-turn lane and a right-turn lane and two through lanes. He approached the intersection in the left or "fast" lane of the two through lanes, and then moved into the empty left-turn lane to get around vehicles stopped in the through lanes by the red light. [4] As he arrived at the

intersection in the left-turn lane, Cst. Leyh stopped or slowed to a "slight creep" while some vehicles, northbound on Ferry Avenue and turning left onto Highway 16 West in front of him, completed their turns and there were no others in the intersection. He noted that southbound traffic on Ferry Avenue stopped for him, and the northbound through traffic in the "fast" through lane on Ferry Avenue made no attempt to enter the intersection. There were a considerable number of vehicles in both northbound left-turn lanes on Ferry Avenue, including trucks. [5] Cst. Leyh "felt" there was no one coming northbound on Ferry in the "slow" through lane, because he did not see any movement or threat in that lane, but he acknowledged that his view of that lane was obscured by the traffic stopped in the other three lanes. He proceeded slowly into the intersection, against the red light, angling back across toward the right or outside eastbound lane on Highway 16, and accelerated once he was in the intersection. He caught a glimpse of the plaintiff's car a split second before impact, and noted it to be travelling at approximately the 50 kph speed limit. He estimated his own speed at 15 kph at the time of impact, which occurred where the outside eastbound lane of Highway 16 meets the outside northbound lane of Ferry Avenue. He did not have time to apply his brakes or take evasive action. [6]

After the impact, both cars moved in a north-easterly direction and the police car collided with a Chevrolet Suburban stopped westbound on Highway 16, causing a fire which engulfed both vehicles. The plaintiff's car collided with a pickup stopped behind the Suburban. [7] The plaintiff is completely deaf without the benefit of hearing aids. She says that she can generally hear a police car siren if she is wearing her hearing aids and if the siren is within two car lengths. On this occasion she was wearing her hearing aids, but, according to independent witnesses, her radio or cassette player was playing quite loudly. She did not hear the siren at all. [8] The plaintiff was driving home after visiting a friend. She was 17 years old and had been licensed to drive for about two months. She said that she was driving at 30 to 50 kph through the nearby school zone on Ferry Avenue and noted the traffic light at the intersection turn green when she was midway between two baseball diamonds on her right. Admissions of fact place the backstop of these diamonds at 400 meters and 250 meters respectively from the edge of the intersection. She recalls there were vehicles proceeding northward ahead of her, but in light of the testimony of the defendant as to his actions, which is largely corroborated by the independent witnesses, any such vehicles must have been a considerable distance ahead of

her. Mr. Belbeck, the driver of the pickup that Ms. Blackburn's car later collided with, observed no other traffic moving into the intersection, yet said he saw the inevitability of the collision that did occur when he saw Ms. Blackburn's car some 3 to 4 car lengths south of the intersection approaching at a "normal" speed, and the police car accelerating through the intersection. [9] Shelly Wood was the driver of a car stationary in the "fast" northbound lane, about six cars from the front of that line. She remained stationary after the light controlling through traffic turned green because she heard the siren. The other cars in her lane also remained stopped. She noted Ms. Blackburn's car going past her in the lane to her right and actually vocalized "you idiot" in conjunction with mentally questioning why that car was going through when a whole line of cars remained stationary at the green light. She also said there were no other cars in the outside lane ahead of Ms. Blackburn. [10] On these facts, Ms. Blackburn seeks a finding of 75% fault against the defendant, and the defendant seeks a dismissal or a finding of no greater than 10% fault. [11] It is acknowledged that Cst. Leyh's vehicle was being operated in the discharge of his duty as a peace officer and was therefore an "emergency vehicle" within the definition in the Motor Vehicle Act. Therefore, he had the privileges

afforded by s. 122(1) of the Act to proceed past a red traffic control signal without stopping and to disregard rules and traffic control devices governing direction of movement. These statutory privileges are qualified by s. 122(4), which reads as follows: (4) The driver of an emergency vehicle exercising a privilege granted by subsection (1) must drive with due regard for safety, having regard to all the circumstances of the case, including the following: (a) the nature, condition and use of the highway; (b) the amount of traffic that is on, or might reasonably be expected to be on, the highway; (c) the nature of the use being made of the emergency vehicle at the time. [12] The case law establishes that subsection (4)(c) introduces a balance between the urgency of the duty to which the emergency vehicle driver is responding and the risks inherent in the manner in which he or she drives against the rules in exercise of the statutory privilege. In other words, if the urgency is great, riskier driving is justified. [See Whitehead v. City of Victoria and Ball (1957), 25 W.W.R. 91 (B.C.C.A.) (emergency vehicle driver held 25% at fault); Sinclair et al v. Siddle (1965), 53 W.W.R. 14 (B.C.C.A.) (emergency vehicle driver held 25% at fault) ; Krauss v. Vancouver (City) et al (1964) 47 W.W.R. 364 (B.C.C.A.) (emergency vehicle driver held blameless on appeal).] [13] In this case, the

police constable himself assigned the urgency to the request for his attendance at the roll-over accident as a Code 3, requiring the use of siren and flashing lights. This was within his duties and standard practice. Plaintiff's counsel suggested that the urgency was not properly considered great because Cst. Leyh acknowledged that he stopped by his home to pick up his yellow mackinaw after he received the dispatch. The officer's response was that he would have been useless at the roll-over scene without his proper equipment, and his house just happened to be nearby when he received the dispatch. [14] Clearly, however, the amount of time consumed in that action was much greater than the very few seconds that would have been consumed by momentarily delaying his acceleration through the intersection where the collision occurred until he had a view down the obscured outside lane or at least had advanced the front of his vehicle so that it would be visible to traffic moving in that lane. It is difficult therefore to conclude that speeding up when there was still a risk of a vehicle approaching in that obscured lane was justified by the urgency he perceived in the particular duty he was discharging. [15] I find that Cst. Leyh, similar to the defendant in Sinclair v. Siddle, supra, took a calculated risk that was not proportionate to the urgency and cannot be said to have complied

with s. 122(4) of the Motor Vehicle Act in all the circumstances. [16] The negligence of Ms. Blackburn is plain. She failed to observe that traffic in the inside through lane remained stopped and did not respond to the green light, even though, according to her testimony, and the admissions regarding distance, she was driving toward the green light for approximately 325 meters. [17] She did not reduce her speed or exercise appropriate caution as she approached the intersection and she had the volume of her radio or cassette player turned up very loudly, which impeded her already significantly impaired ability to hear sirens. [18] There is a certain subjectivity to the reasonable person test when physical disabilities are present. It is not negligent for a deaf person not to hear a siren. But a deaf person driving a car must reasonably be aware that their own safety and the safety of other motorists might be affected by that disability if reasonable compensations are not made. Visual attentiveness takes on added importance. [19] In my view, it is incumbent upon a driver with a known profound hearing impairment to compensate for the obvious inherent risks of not being able to hear emergency vehicles sirens by learning to pay special attention to visual clues of the presence of an emergency vehicle, such as vehicles stopping or not proceeding on a green light. This is not

requiring a higher standard of care of deaf persons, but rather requiring a specific component of reasonable care in specific circumstances. [20] In apportioning fault between the plaintiff and the defendant, I have the decisions cited above for comparison and guidance, as well as Vallery v. Po (1991), 23 D.L.R. (3d) 92 (B.C.S.C.) (emergency vehicle driver 65% at fault);Wallace v. Canada (Attorney General), [1996] B.C.J. No. 64, Harford v. Grace, [1991] B.C.J. No. 324 (emergency vehicle driver 30% at fault); Smith v. Victoria (City) Police Department, [1997] B.C.J. No. 3163 (emergency vehicle driver 30% at fault); Lal v. Lawson, [1994] B.C.J. No. 273 (emergency vehicle driver held blameless). In my view the appropriate apportionment of fault in this case is 80% to the plaintiff and 20% to the defendant. [21] By virtue of s. 21 of the Police Act, action does not lie against Cst. Leyh personally, but his employer is not absolved from vicarious liability. [22] Turning to damages, it was agreed that the vehicle damage was $3,000.00. [23] Ms. Blackburn was assisted from her vehicle and was able to walk. She had small abrasions on her neck and hip from her seat belt. She was taken to hospital in an ambulance and x-rayed. There was no evidence of fracture or subluxation. She was released after examination and attended her family physician the following day, complaining of headaches

and a stiff, sore neck. Dr. Bond noted tiny lacerations on her temple and her hands and knee bruising. The range of motion of her neck was flexion 25%, extension 50%, rotation 50%. Dr. Bond diagnosed moderately severe cervical sprain or grade II Whiplash Associated disorder and prescribed Tylenol #3 (50 tablets). He encouraged her to mobilize as soon as possible. Her only other visit to her family doctor in connection with the accident was one week later, June 20, 1996, in a follow-up requested by Dr. Bond. She still complained of dizzy spells and headaches. Range of movement in her neck was 50% flexion and 90% in all other directions. She was still tender over the trapezius muscles and she mentioned pain in her right knee. [24] Dr. Bond called Ms. Blackburn in for an interview on December 24, 1998, when he was asked by counsel for a medical/legal report. Ms. Blackburn related to him at that time that her headaches had resolved within one year and the neck soreness with 5 to 6 months of the accident, but that for many months she had had frequent intrusive thoughts about the accident. These had gradually diminished but started up again after the legal process began and she was then feeling chronic anxiety and had lost enjoyment of driving. Dr. Bond diagnosed probable post-traumatic stress disorder and suggested to counsel in his report that she be seen in consultation by a

psychiatrist or psychologist. [25] Ms. Blackburn was subsequently interviewed by psychiatrist Dr. Paul Janke for two hours on December 21, 2000. His conclusion was that she had symptoms of tension and anxiety that were related to the accident and it was imperative that she receive treatment in the form of psychotherapy cognitive-behavioral therapy and that she would also benefit from anti-anxiety medication or antidepressant medication. He expected a cost for medication between $50.00 and $100.00 per month over 8 to 18 months and suggested psychotherapy of 20 to 24 sessions over 12 to 18 months. [26] There is a mitigation issue in that Ms. Blackburn used a soft collar neck brace which was left over from another injury in the family, and this was clearly not consistent with Dr. Bond's direction to mobilize her neck right away. She also did not follow his advice regarding physiotherapy. The belated diagnosis of anxiety requiring protracted treatment is possibly due to her not consulting a medical professional in a timely fashion about her symptoms. She has not yet taken any of the treatment or medication suggested by Dr. Janke in January 2001, and it does not seem likely that she will. [27] Ms. Blackburn explained that she did not attend for treatment for her physical injuries more frequently simply because she does not like doctors. She has avoided treatment for her anxiety and

depression because she does not want to relive the accident. She agreed on cross-examination that neither her physical injuries nor her emotional difficulties had changed her educational or career plans. [28] Plaintiff's counsel relies on the comments of the Court of Appeal (per Proudfoot J.A.) in Unger v. Singh and Dhaliwal 2000 B.C.C.A. 94, as suggesting the universal low-end of the appropriate damages range for soft tissue injuries with some emotional problems is $35,000.00. As I read the case (para. 32 contains the language relied upon) the Court was not setting down any rule or even stating an opinion as to the limit of the range, but was summarizing the results of precedents cited by counsel in that case. [29] The plaintiff suggests the range of damages in this case, without the psychological component, should be $12,000.00 to $15,000.00. The defendant suggests $9,000.00 is more appropriate, on the basis that if Ms. Blackburn had followed medical advice, full resolution would have occurred in 6 to 8 months. [30] The defendant suggests that the award for the psychological component of non-pecuniary damages should not exceed $10,000.00, after taking into account Ms. Blackburn's failure to seek treatment. It is noteworthy that if Dr. Bond had not called Ms. Blackburn in for an interview in December 1998, she may never have brought her anxiety/depression difficulties to the

medical profession. She is a self-reliant, independent person who, in my assessment, is not prone to overstate any of her symptomology. Dr. Janke inferred considerable psychological strength from Ms. Blackburn's manner of carrying on with life despite her difficulties. [31] In my assessment, the psychological difficulties have been much more significant to her than the physical injuries. A significant part of her anxiety relates to the suggested involvement of her hearing impairment as a cause of the accident, according to Dr. Janke. This is very different from the usual case where depression is caused by slow recovery from the physical injuries or to ongoing pain. [32] Unfortunately there is little direct assistance or guidance to be found in the authorities cited due to the uniqueness of this case. The plaintiff argues that there is no evidentiary foundation to support a mitigation argument in respect of the psychological injuries. I cannot agree with that submission. The evidence is that she suffered nightmares and intrusive thoughts and anxiety about automobile travel from immediately after the accident in June 1996 and failed to inform her doctor until December 1998. [33] Taking into account a failure to mitigate which has resulted in some avoidable protraction of physical injury as well as exacerbation of her anxiety/depression problems, I assess her non-pecuniary losses

globally at $30,000.00. [34] Dr. Janke did not quantify the cost of the suggested psychotherapy as he did with medications, and no evidence was adduced on that item. Possibly her health care plan would cover all or a portion of some of the cost if she decides (uncharacteristically) to undertake the treatment. I think it is unlikely she will either undergo the treatment or take the suggested medication, but since this is a future cost, reasonable possibilities are to be measured. I award $1,000.00 for the contingency that either medication or therapy costs will be incurred. [35] In summary, the awards, subject to apportionment, are: non-pecuniary damages $30,000.00; property damage $3,000.00; special damages $1,000.00. The plaintiff will recover judgment for $6,800.00 plus costs on Scale 3. "I.C. Meiklem, J." The Honourable Mr. Justice I.C. Meiklem