Driver talking on a hands free cell phone not responsible for crash
In the recent decision of D’Amici v. Fahy, 2018 BCSC 1372 a determination of liability was made in an ICBC motor vehicle accident claim. The accident in Vancouver, B.C. At the time of the accident, the defendant driver was talking on a hands free cell phone. He was travelling north on Main Street at around 4:00 p.m. In the area where the accident occurred there are three northbound and three southbound lanes on Main Street. Traffic was light in the defendant’s direction but was very busy in the southbound lanes, with traffic stopping and starting. The plaintiff was travelling east on 6th Avenue in a black Honda, intending to cross Main Street. There are no traffic lights at the intersection of Main Street and East 6th Avenue, but there is a stop sign on 6th Avenue. While he was driving the defendant was talking on a hands free cell phone to a client using the hands free system in his car. He was paying attention to the call, but he does not believe that it distracted him from concentrating on the road ahead while he was driving, although he acknowledged it was possible. He was uncertain about how fast he was going, but 50 to 60 kilometres per hour “seems reasonable”. As the defendant approached the intersection of 6th Avenue, he noticed the plaintiff’s vehicle heading east on 6th Avenue crossing Main Street.
The plaintiff had driven his vehicle through a gap in the southbound traffic. The defendant saw the plaintiff’s vehicle just before it reached the double yellow line dividing the north and southbound lanes. He saw the plaintiff’s vehicle slow down but is not sure if it came to a complete stop. He saw the front third or half of the plaintiff’s vehicle. His “best estimate” is that he was maybe two car lengths away when he first saw the plaintiff’s vehicle. The defendant said he saw the plaintiff turn his head to the left, or north, to gesture to someone. He did not see the plaintiff look to the south in his direction. The plaintiff then accelerated quickly into the intersection across the northbound lanes. The defendant stepped hard onto his brakes and the anti-lock brake system engaged. The defendant testified that he likely felt the ABS sensation for less than a second before his vehicle truck the plaintiff’s vehicle.
Megan Hunter was driving south on Main Street at about 4:00 p.m. Ms. Hunter testified that as she approached the intersection of Main Street and 6th Avenue she saw a black Honda Civic crossing Main Street in front of her. She first saw it move through the curb lane, causing the southbound vehicle in that lane to slam on its brakes. The black Honda then crossed into her middle southbound lane. There was one vehicle in front of her that had to brake suddenly to avoid the Honda, and Ms. Hunter said she had to slam on her brakes to avoid rear-ending that vehicle. She noticed the driver of the Honda looking to the left, as though trying to make eye contact with oncoming southbound drivers.
The plaintiff tendered an expert reported dated April 4, 2018, prepared by a professional engineer, Dr. Amrit Toor, who was qualified as an expert in mechanical engineering and accident reconstruction. According to Dr. Toor, if the defendant applied his brakes for .5 seconds, his pre-impact speed would have been 61 to 71 kilometres per hour. At one second of brake time, the speed range would have been 73 to 83 kilometres per hour, and at 1.5 seconds, 84 to 94 kilometres per hour. Dr. Toor also addressed the issue of perception response time. This is the time it takes for someone, in this case a driver, to detect an object, perceive it as a hazard, decide on an appropriate evasive action and implement that action. Citing various studies, Dr. Toor suggests that the 50th percentile perception response time for persons not alerted in advance about an upcoming hazard is 1.1 seconds. Citing additional studies, he assumed that the perception response time for a driver using a cellphone, whether talking on a hands free cell phone or not, would be prolonged by .5 seconds. He therefore assumed that the defendant’s perception response time in this case was 1.6 seconds. He then opined that depending upon the defendant’s pre-impact speed and his braking time, had the defendant’s perception response time not been prolonged by reasons of his talking on a hands free cell phone, his vehicle could have stopped or at least sufficiently slowed to avoid the impact. The plaintiff relied on Dr. Toor’s opinion to support his position that the defendant was negligent in the operation of his vehicle.
In its decision, the court was unable to put much weight on the opinion of Dr. Toor considering the report as highly speculative. His use of a response time of 1.1 seconds is taken from what is referred to as the Olsen study. However, Olsen suggests that a perception response time anywhere in the range of .7 to 2 seconds would be considered normal. There is no way of telling where the defendant falls within that range, if indeed he does. Similarly, the addition of .5 seconds to reflect distraction from talking on a hands free cell phone is speculative and somewhat arbitrary. There is simply no way of knowing whether the defendant was distracted, and, if so, to what degree. The evidence also does not establish actual braking time for the defendant. Dr. Toor uses a range of .5 to 1.5 seconds, and although the defendant did testify that he thought it was less than a second, such estimates are largely meaningless for a driver who is responding to an emergent situation. The Court found that Dr. Toor’s evidence did little more than offer a range of scenarios about what might have occurred and does not make any one scenario more likely than another.
The plaintiff submitted that the defendant was negligent in that he was driving above the posted speed limit and was talking on a hands free cell phone, which rendered him a distracted driver. But for these factors, the plaintiff submitted that the defendant could have avoided the collision. The plaintiff’s position in this regard is based primarily on Dr. Toor’s evidence, in which he provided possible ranges of how far away the defendant’s vehicle was from the point of impact when the plaintiff’s vehicle first stopped at the centre line. Again, however, Dr. Toor’s opinion is based upon a number of unproven assumptions, including the plaintiff’s stop time, the defendant’s braking time, the impact speed, and the pre-impact speed.
Rather, the Court accepted the evidence of Ms. Hunter in that the plaintiff, in effect, forced his way across the southbound lanes of Main Street at 6th Avenue, requiring vehicles in those lanes to slam on their brakes in order to avoid a collision with the plaintiff. The evidence did not establish whether the plaintiff first stopped at the stop sign on 6th Avenue at Main Street before proceeding across Main. Ms. Hunter’s evidence was that when she first saw the plaintiff’s vehicle, it was moving. The defendant did not see the plaintiff’s vehicle until it approached the double yellow line dividing the south and northbound lanes on Main. The plaintiff failed to establish that he stopped at the stop sign.
The Court accepted the defendant’s evidence that the plaintiff then accelerated quickly into the northbound lanes and that the defendant, despite slamming on his brakes, had no opportunity to avoid the impact. The Court also found, based on the evidence of Ms. Hunter and the defendant, that the plaintiff was looking to his left. He did not properly look to ensure that he could safely cross the northbound lanes of Main Street. The court accepted that the defendant was going faster than the posted speed limit of 50 kilometres per hour; however, the evidence has not established that driving at such a speed on Main Street, a significant north-south roadway, was negligent or that the defendant’s speed prevented him from taking reasonable evasive action.
The Court found that the mere fact of talking on a hands free telephone does not render the defendant negligent and, again, the plaintiff has not established on the evidence that the talking on a hands free cell phone distracted the defendant to the point that it prevented him from taking reasonable evasive action. Ultimately the Court found that the accident in this case was caused by the plaintiff crossing Main Street when it was unsafe to do so, failing to keep a proper lookout, and failing to yield to the defendant’s vehicle. The plaintiff was found 100 percent liable for the accident. His claim against the defendant was, therefore, dismissed with costs.
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