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Compliance With Standards No Defence
Published in the January 2009 issue of Litigation Notes - View Article
A railway company was found negligent for failure to make a crossing safe, despite the fact that it met standards set by the government regulator
The Ontario Court of Appeal recently considered the standard of care applicable to railway companies and whether or not compliance with industry standards is justification for conduct wich would otherwise be negligent.
At about 9:15 on an August evening in 1994 the plaintiff, Jason Zsoldos, was riding his motorcycle home. He had been drinking beer with some friends and had a blood alcohol level slightly below the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. He came to a railway level crossing near his home with which he was well familiar. He was travelling at about 80 km/hour and failed to see a train in the level crossing. He collided with the train and lost both arms and a leg.
The crossing was maintained by Canadian Pacific Railway Company (“CP”) and was similar to level crossings in rural municipalities across Canada. There were no gates or flashing lights. The only marker was a reflectorized cross buck with reflective tape on the front side only. 290 feet before the crossing there was a sign erected by the municipality, alerting motorists to the presence of the crossing and recommending that they reduce their speed to 20 km/hour. There were crops on either side of the roadway which had reached a height sufficient to obscure the view of the tracks.
At trial, the judge found CP liable to the extent of 75%. She found the plaintiff 25% liable by reason of having consumed alcohol and the speed at which he was travelling at the time of the accident. The trial judge reviewed the leading case on railway negligence, Ryan v. Victoria (City), a 1999 decision of the Supreme Court of Canada which overruled the previously privileged position occupied by railways within the law of negligence. Prior to Ryan the rule was that so long as railway companies complied with government regulations and orders, they were under no further obligation to act in an objectively reasonable manner. After Ryan, railway companies were subjected to the same standard of care as other defendants.
In this case, the trial judge found that CP had been negligent because it had never inspected the railway crossing at night. Had it done so, it would have realized that there were a number of steps that could have been taken which would have reduced the likelihood of an accident. This might have included applying reflective tape to the backs and fronts of the cross bucks, because the reflective tape creates a strobe effect as it is illuminated by car headlights shining through the spaces between the rail cars as they pass through the level crossing. More ambient lighting and a more emphatic warning sign would also have been of assistance.
CP appealed on the basis that the trial judge had not adequately enunciated the standard of care that CP should have met. CP argued that industry standards did not require anything more than passive measures for a rural crossing such this one, which was one of 16,000 similar crossings throughout the country. CP pointed to the “cross product”, a term of art in the railway industry, which refers to the number of vehicles travelling over a crossing daily, multiplied by the number of trains. At this location, in 1994, the cross product was 300. At the time, Transport Canada did not recommend an active warning system where the cross product was less than 1,000.
The Court of Appeal upheld the decision of the trial judge. In the opinion of the Court of Appeal the so-called industry standard advanced by CP had to be approached with caution because CP effectively “was the industry”. The Court reviewed the authorities dealing with application of industry standards as a defence to negligence and pointed out that it is a factor to take into consideration but that “xeven a common practice may itself be condemned as negligent if fraught with obvious risk”. In this case, the Court of Appeal considered that it was open to the trial judge to find that CP’s failure to carry out night-time inspections of the crossing was negligent.
Zsoldos v. Canadian Pacific Railway Company, 2009 ONCA 55