Bus Driver Held to Higher Driving Standard - At Partial Fault for Accident

February 06, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Gardiner v. MacDonald – Car Accident; car runs red light and hits bus; driver with right of way assessed percentage of fault; bus driver held to a higher driving standard

Gardiner v. MacDonald


Date of Decision: December, 20, 2016
Heard Before: E.A. Cronk J.A, R.G. Juriansz J.A., and L.B. Roberts J.A.


On January 23, 2008, the late Mark Macdonald was driving himself and four passengers, including Mr. Gardiner, home after having spent the evening at various pubs.  Mr. MacDonald’s car entered the intersection on a red light and collided with an OC Transpo bus driven by the appellant, Mr. Richer, an employee of the City of Ottawa.  Mr. Richer was driving through the intersection on a green light. Tragically, the car accident resulted in three fatalities and catastrophic injuries for Mr. Gardiner. 

Mr. MacDonald’s estate admitted liability for the accident and the parties eventually agreed on the respondents’ damages.  The issues at trial were whether Mr. Richer was negligent in his operation of the City bus and, if so, whether his negligence caused or contributed to the accident and the respondents’ damages.

The trial judge concluded that Mr. Richer was negligent in his operation of the City bus.  Among other things, she found that he was travelling at an excessive rate of speed and that he was looking from left to right, rather than in front of him, when he approached and then entered the intersection.  She concluded that, but for his negligent acts, Mr. Richer could have avoided the collision with Mr. MacDonald’s car.  She assessed Mr. Richer and the City of Ottawa as 20% liable for the respondents’ damages.

The appellants advance two main arguments in support of their appeal from the trial judge’s liability finding: First, the appellants argue that the trial judge erred in her articulation of the standard of care applicable to Mr. Richer in the circumstances.

The Justices disagree.

The trial judge expressly held that Mr. Richer was obliged to observe the standard of care of a reasonably prudent driver in like circumstances.  She stated:

The duty of care of a dominant driver entering an intersection on a green light vis-à-vis a servient driver required to stop on the red is clearly delineated by long-standing legal authority.  Despite having the statutory right-of-way, a driver in the shoes of Mr. Richer is required to yield the right-of-way where, exercising proper care, circumstances dictate he ought not to exercise the statutory right-of-way.  The statutory right-of-way ought not to be exercised in circumstances where:

1.    The driver becomes aware or ought to have been aware that the driver without the right-of-way is proceeding through the intersection on a red [light]; and

2.    If circumstances are such that the driver with the right-of-way has the opportunity to avoid a collision.

The appellants do not challenge this description of the applicable duty of care.  However, they rely on paragraph the trial judge’s reasons to argue that the trial judge erred by imposing a higher standard of care – that governing a professional driver – on Mr. Richer.

The requirement that Mr. Richer observe the standard of care of a reasonably prudent driver in like circumstances does not preclude a finding that as a professional driver, he should be held to a higher standard.  Indeed, the Ontario Court of Appeal has recognized that: “the general standard of care of a professional … is a question of law, but the content of the standard of care in a particular case is a question of fact” … In other words, Mr. Richer’s conduct may be judged through the lens of the “reasonable bus driver in like circumstances”.

The trial judge’s comments arose from the fact that Mr. Richer is a trained bus driver in the long-time employ of the City of Ottawa.  At the time of the accidentMr. Richer was acting within the scope of his duties with the City. The Justices saw no error in the trial judge’s consideration of Mr. Richer’s status as an experienced bus driver or in her treatment of this fact as relevant to the determination of the applicable standard of care to which Mr. Richer was bound at the time of the accident, nor did they accept that the trial judge erred by relying on Mr. Richer’s status as a professional driver to improperly impose an inappropriate, elevated standard of care.

Mr. Richer himself conceded the relevance of his status as a professional bus driver, he admitted that the duties he was bound to observe as a professional driver applied on the night of the collision.  He admitted these duties applied even though he was driving a “work bus”, out-of-service to the regular public, transporting other bus drivers.

The Justices considered all of the evidence, including that when Mr. Richer chose to look left, then into his mirrors, and right before returning his attention to the front of his bus, after that, Mr. Richer had time to comment to Mr. Moran that the SUV was not stopping, steer to the left and brake.  Moreover, Mr. Moran, after seeing the emergency himself, had time to move across the bus to another stanchion and crouch down before the impact. The Justices concluded that Mr. Richer’s momentary inattention to the front of the road was only one of several factors that, together, made out his negligence on the morning in question.  Those other factors included, for example, his speed of travel and his failure to adjust his manner of driving for the prevailing winter road and weather conditions.

The Justices concluded that when the trial judge’s reasons are viewed in their entirety, they reveal no error in her articulation of the applicable standard of care or in her application of that standard to the facts as she found them.  She made no finding that Mr. Richer was bound, on the morning in question, by the standard of care governing a common carrier.  Rather, she considered all the applicable circumstances, as she was obliged to do, in determining the standard engaged in this case.  She made no error in so doing.  As we have said, the standard applied to Mr. Richer was one that even he acknowledged governed his conduct as a driver at the time of the accident.

This ground of appeal is dismissed.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Drunk Driving Accidents, Personal Injury

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