23 April 2007
Biker Takes on Railway and Wins
Since the Supreme Court of Canada's 1999 decision in Ryan v.
Victoria, railways have lost the benefit of the special rule excusing them from liability for negligence, even where they have complied
with all applicable statutes, regulations, and administrative orders.
"This case should demonstrate to the profession that plaintiffs can now take on the railways with some confidence," says Jim
Mays.The court set aside the rule because railways "no longer occupied a position of unparalleled economic and social importance
in the development of Canada." However that may be, railways still occupy a position of unparalleled importance for people who
are hit by trains.
That's what happened to 22-year-old Jason Zsoldos, who lost two arms and a leg when he collided with a CP freight train at
a level crossing just outside of Bothwell, Ont., on 26 Aug 1994.
Zsoldos was riding a motorcycle on a rural gravel road near his home. As he approached the intersection, he didn't see the train until
it was too late. He tried to lay down his bike, but was thrown under the moving freight car. Remarkably, he survived, but with very
severe injuries.
Zsoldos sued CP. Interestingly, although the accident occurred pre-Ryan, the three-and-a-half week trial that
ensued didn't take place until almost a dozen years later. At its conclusion, Ontario Superior Court Justice Helen Rady found CP 75
percent liable for the accident. She also concluded that Zsoldos bore 25 percent responsibility for his contributory negligence.
For once, the slow grind of the wheels of justice worked to the plaintiff's advantage. Had the trial taken place before Ryan, Zsoldos
and his lawyers, Jim Mays and Emily Foreman of Siskind Cromarty Ivey & Dowler LLP in London, Ont., would have had a much tougher
road to hoe because the evidence established that CP had complied with all applicable statutory and administrative rules.
"It has been exceedingly difficult to sue railways over the years," Mays says. "Ryan let plaintiffs get their foot in
the door and this is the case that has opened the door with a set of facts that accorded with the Ryan blueprint." Although the
crossing was equipped with a passive warning system consisting of two cross bucks that bore reflectorized tape and an advance warning
sign, there were no active warning systems such as lights, bells, or gates.
In the March 15 decision in Zsoldos v. Canadian Pacific Railway Co., Rady found Zsoldos had been driving his motorcycle at the speed
limit and although he slowed at the advance warning sign, he did not reduce his speed to the required 20 km/hr.
It was very dark at the time of the accident and Zsoldos had his high beams on. He knew the crossing existed, as he lived nearby and
used it frequently, but had no expectation that a train was there, as he rarely saw any. There were also no visual cues that the train
was in the crossing, given the fact that it was moving slowly, the darkness, the lack of lighting in the area, the dark colour of the
train cars, and the existence of a corn crop in the fields, which obscured the train's presence to motorists.
Zsoldos could not hear the train because he was wearing his helmet and driving on a gravel road. Rady found that Zsoldos didn't see the
train until seconds before the collision. He hit his brakes hard, locking his wheels, and causing the bike to fall on its side.
"Given my finding of the speed at which Mr. Zsoldos was travelling and his [response time]," Rady wrote, "it is apparent
that he could not have stopped before the crossing, even had he begun to reduce his speed at the advance warning sign."
Although CP had complied with all statutory and regulatory requirements, it still had a "high degree of discretion" in
determining the suitability of the warning at the crossing. "It is important to bear in mind that the entire purpose of a warning
is to protect users of the roadway from the objective risks foreseeably presented by a level crossing," Rady noted.
CP had failed in this purpose by neglecting to inspect the crossing at night. "If CP had carried out an inspection of this
crossing at night, it would likely have concluded that additional warnings were necessary, given the steep angle at which the track
bisected the roadway, the absence of any ambient lighting, and the presence of crops on the side of the roadway, all of which conspired
to make the presence of a train in the crossing very difficult to discern," Rady concluded.
As Rady saw it, Zsoldos could have avoided the collision had the additional protection been installed. Because Zsoldos had been
drinking and was driving too quickly, however, he was 25 percent responsible for the accident.
The result produced an award of about $3.56 million for Zsoldos as the parties had agreed on a $4.75 million damage assessment (based
on 100 percent liability). "This case should demonstrate to the profession that plaintiffs can now take on the railways with some
confidence," Mays says. "And you don't have to do anything fancy, just work the facts hard."
Indeed, no new legal principle appears to emerge from Zsoldos, which seems to be a straightforward application of Ryan to a contested
set of facts. The decision could, however, have serious consequences for Canada's railways.
"The crossing in this case was like thousands of others in Canada where motorists can't see the track or trains on the track at
night because of a combination of circumstances," Mays says. "Hopefully, the railways will remedy this flaw in their
inspection systems."
That won't be cheap, of course. Which is undoubtedly part of the reason that this case may not be over.
"CP has the question of an appeal under advisement," says Steven Rosenhek, of Fasken Martineau DuMoulin LLP's Toronto office,
who represented the railway.
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