Collision with train leads to $1.4 million award
In the recent case of Huang v. Canadian National Railway Company, 2018 BCSC 1235, a train owned and operated by the Canadian National Railway (“CNR”) struck the passenger side of Jane Huang’s vehicle. She was crossing railway tracks on Smith Crescent close to Glover Road in Langley, BC (“Smith Crossing”) (“Collision”). Ms. Huang was seriously injured in the Collision. Her most significant injuries include an incomplete spinal cord injury and a traumatic brain injury.
Smith Crossing is one of a series of railway crossings adjacent to Glover Road, forming part of what is called the Page railway subdivision (“PSD”). The Canadian Pacific Railway (“CPR”) owns the railway track and has a right of way or an easement over the land underlying the PSD. There is a stop sign about 5 metres west of Smith Crossing on Smith Crescent (“First Stop Sign”). Just east of Smith Crossing is a second stop sign on Smith Crescent where it intersects with Glover Road.
On May 8, 2014, Ms. Huang left the office shortly after 5:00 p.m., planning to drive home to Vancouver. She has no memory of what happened in the moments leading up to the Collision. On previous days, however, she had driven east on Smith Crescent and south along Glover Road, without stopping at the First Stop Sign because she believed the railway tracks had been abandoned. Ms. Huang accepted she likely did not stop at the First Stop Sign before being hit by the train. She acknowledged that failing to stop was negligent, but asserted the Collision was also caused by the negligence of the defendants.
Her primary allegation of negligence is against the CPR for failing to maintain adequate sightlines at Smith Crossing. She asserted an overgrowth of vegetation, mainly Himalayan blackberry bushes, prevented her from seeing the approaching train. Consequently, she entered Smith Crossing when the train, travelling at about 35 mph, was too close to avoid.
Ms. Huang also alleged the CPR was negligent for failing to install automated gates and other warning devices at Smith Crossing before the Collision, knowing it was dangerous because the distance between the western edge of the railway track and the second stop sign at Glover Road, or “storage space”, was not long enough to accommodate a regular size vehicle.
Ms. Huang claimed the CNR and the train’s conductor and engineer were negligent for failing to warn her of the approaching train by activating the horn properly and for failing to observe and take action in response to the obvious sightline deficiencies at Smith Crossing before the Collision.
The court concluded that the applicable standard of care required the CPR to maintain a sightline consistent with various mathematical calculations (the 10 second warning, the T value contained in both the G4 A and the SPC 29), which translates to a sightline of 525 feet, absent exceptional circumstances. In the event that this sightline could not be achieved by trimming the encroaching blackberry bushes back to the fence line, the CPR’s obligation was to implement a slow order, thereby increasing the time available to motorists to respond to an oncoming train. In the event of a refusal to allow further cutbacks on the berm, the CPR would be obligated to consider taking additional steps depending on the extent to which the sightline remained significantly below 525 feet. The Court regarded repeated cutbacks to the fence line to address the impact of regrowth on adequate sightlines as well within the standard of reasonableness, absent other options.
The Court was strongly of the view the standard of care required the sightline of 525 feet to be available to a motorist before reaching the stop line, when the front of the vehicle was 8 metres from Smith Crossing. To ameliorate the grave risk of harm from a collision and the particular risks at Smith Crossing, including the storage space problem, motorists such as Ms. Huang needed an adequate sightline of the railway tracks before reaching the First Stop Sign. The task for motorists approaching Smith Crossing is complex. They have to look in both directions for oncoming trains, as well as traffic on Glover Road, and determine not only if they have time to cross the tracks, but also to turn left or right onto Glover Road.
The CPR should have been monitoring and evaluating the southbound sightline at Smith Crossing regularly each and every spring and summer, including the spring of 2014 given the very rapid growth rate for blackberry bushes and their long-term presence on the Britco berm and the CPR’s right of way, resulting in previous cutbacks or trimmings and identified potential sightline problems from the hi-rail and then evaluating or arranging for some one else to evaluate those potential problems promptly.
The Court found the CPR’s approach to maintaining sightlines at Smith Crossing was careless. As a result, the sightline available to Ms. Huang on May 8, 2014 and in the preceding days, significantly breached the standard of care.
Ms. Huang heard the train when the horn was last sounded (five to seven seconds before impact) and the train was about 355 to 255 feet away. Even with a corresponding southbound sightline, Ms. Huang would have seen, as well as heard the train and stopped in time to avoid the Collision. Consequently, the Court was satisfied that but for the CPR’s breach of the standard of care, the Collision and therefore Ms. Huang’s injuries and losses would not have occurred. Accordingly, the Court found the CPR liable in negligence.
The Court found the duty owed by the CPR to motorists using Smith Crossing was important to public safety. The enormity of the risk in the event of a collision is undeniable. The Court accepted that the CPR engaged in a more prolonged, repeated failure to observe, evaluate and address the deficient southbound sightline at Smith Crossing prior to the Collision, despite many opportunities to do so, resulting from the CPR’s ongoing careless approach. With respect to timing, the Court found that CPR’s failure to adequately monitor and maintain adequate sightlines at Smith Crossing preceded Ms. Huang’s arrival at Britco on April 22, 2014. The Court found that Ms. Huang’s conduct involved breaches of the MVA, whereas the CPR was not subject to statutory requirements at the time of the Collision. Ms. Huang’s negligence included failing to stop at the First Stop Sign and failing to pull forward to look for an oncoming train and failing to drive with care and attention.
With respect to what might be characterized as the subjective element or the nature of their conduct, the Court found that the CPR was clearly more blameworthy. Ms. Huang’s negligence resulted from an unreasonable but honestly held belief the railway tracks had been abandoned, not recklessness or deliberate risk taking. In contrast the CPR was indifferent in its approach to maintaining adequate sightlines despite being fully aware of the grave risk of collisions.
In summary, while some factors suggested both parties are equally blameworthy, and only Ms. Huang was subject to and breached existing statutory requirements, the Court found the CPR was more blameworthy. The Court concluded therefore the CPR’s degree of fault is greater than Ms. Huang’s bearing in mind that causation plays no role in the analysis. The Court apportioned liability 60% to the CPR and 40% to Ms. Huang.
After determining the issue of liability, the Court awarded the plaintiff $2,411,077 in damages.* Since the defendant was 40% contributory negligent, Ms. Huang was awarded 60% of $2,411,077 or $1,446,646.20.
(*under the following heads: Non-Pecuniary Damages: $330,000, Past Loss of Earning Capacity: $216,586; Future Loss of Earning Capacity: $1,166,283; In Trust Claim: $50,000; Costs of Future Care: Medications: $48,000; Physiotherapy: $23,071; Kinesiologist: $73,662; Massage Therapy: $13,000; Occupational Therapy: $50,555; Psychological Support: $39,240; Neurofeedback Treatment: $5,910; Sexual Medicine Services: $2,000; Medical/Rehabilitation Equipment: $15,000; Homecare Support: * COUNSEL TO CALCULATE: Home Modifications; $80,000; Vocational Needs: $3,500; Ministry of Health Claims: $133,898.46; ICBC Subrogated Claim: $133,021.96; Special Damages: $18,000).
At Hauer and Co, motor vehicle collisions are in our wheelhouse.