IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:  20130528

Docket:  M110347

Registry:
New Westminster

Between:

Prem Prakash Singh

Plaintiff

And

Minister for
Public Safety and Her Majesty the Queen in right of the Province of British
Columbia as represented by the Ministry of Attorney General of British Columbia

Defendants

Before:
The Honourable Madam Justice Adair

Reasons for Judgment

Introduction

[1]
On September 12, 2007, the plaintiff, Mr. Prem Singh, was travelling
northbound on Scott Road (also known as 120th Street) in Surrey, B.C.  Mr.
Singh approached the intersection at 96th Avenue.  96th Avenue runs east and
west.  The traffic light was green for Mr. Singh.  As Mr. Singh went through
the intersection, he hit a westbound RCMP vehicle driven by Constable Kerri
Parrish.

[2]
Constable Parrish was on her way to answer a “Priority 1” call from her
dispatcher.  There is no dispute that, at the intersection of Scott Road and
96th Avenue, the traffic light was red for Constable Parrish.

[3]
There is also no dispute that the emergency lights were flashing on
Constable Parrish’s vehicle.  However, whether her emergency siren was
activated is hotly contested.

[4]
Both liability and damages are in issue.

[5]
Mr. Singh says that the collision with Constable Parrish occurred as a
result of her negligence.  He says that, while the emergency lights on
Constable Parrish’s car were flashing, Constable Parrish had not activated her
emergency siren, and she therefore did not have the right of way.  Mr. Singh
says further that, even if Constable Parrish had activated her emergency siren,
she nevertheless failed to exercise reasonable care, and her negligence caused
the collision.

[6]
Mr. Singh claims that, as a result of the accident, he sustained soft
tissue injuries to his shoulders, neck and back, and that he continues to
experience chronic pain symptoms as a result of his injuries.  Mr. Singh seeks
non-pecuniary damages of between $45,000 and $60,000, compensation for past
income loss and for the cost of future care, as well as special damages.  Mr.
Singh does not seek compensation for income loss or loss of earning capacity
after July 2010.  At that time, Mr. Singh became unemployable because of
retinopathy and visual impairment connected with his diabetes.

[7]
Mr. Singh’s claim against the defendant Her Majesty the Queen in right
of the Province of British Columbia as represented by the Ministry of Attorney
General of British Columbia was dismissed without costs during closing
submissions.  The dismissal was unopposed.  The remaining defendant, the
Minister for Public Safety, is conceded to be the correct defendant in the
event I find Constable Parrish was negligent and that her negligence caused the
injuries Mr. Singh claims to have suffered in the collision.  I will refer to
the Minister for Public Safety as the “Minister” or simply as “the defendant.”

[8]
The Minister says that Mr. Singh’s claim should be dismissed.  The Minister
says that Constable Parrish had both her emergency lights and siren activated
and that, in the circumstances, Constable Parrish had the right of way at the
intersection.  The Minister says that the accident was therefore caused by Mr.
Singh’s negligence, not as a result of any negligence on the part of Constable
Parrish.  The Minister says in the alternative that, if Constable Parrish is
found to have been negligent, then Mr. Singh should be found contributorily
negligent.  In addition, the Minister disputes that the injuries Mr. Singh
claims to have suffered were caused by the accident.  Finally, the Minister
says that, even if liability is determined in Mr. Singh’s favour, any award of
damages should be modest, on the basis that Mr. Singh recovered relatively
quickly (within about six months) from any injuries he suffered as a result of
the accident.

[9]
I will first address liability.

The Accident

[10]
In addition to Mr. Singh and Constable Parrish, I heard evidence
concerning the circumstances of the accident from four other witnesses:  Mr. Jagbir
Singh Deol, Mr. Salesh Chand, RCMP Constable Bojan Lucic and Mr. Jason Barros.
Mr. Deol and Mr. Chand were called by Mr. Singh, and Constable Lucic and Mr.
Barros were called by the Minister.

[11]
On Scott Road northbound, there are two through lanes, and left and
right turning lanes at the intersection with 96th Avenue.  There is a dedicated
left-turn lane southbound.  The intersection is controlled by traffic signals,
including advance left-turn signals for vehicles making left turns from Scott
Road onto 96th Avenue.

[12]
According to Mr. Singh, on the day of the accident, he was driving to a
friend’s house.  It was late morning, and a fine September day.  Mr. Singh was
driving a 2003 Pontiac with a sun roof.  He was wearing his three-point
seatbelt.  Mr. Singh initially recalled that the car’s front windows and the
sun roof were all open.  However, after reviewing a photograph of his car taken
at the scene, he acknowledged that the sun roof could have been only partially
open.  The photograph also shows the driver’s window as closed, but Mr. Singh
did not recall this.  According to Mr. Singh, the car radio was off.

[13]
Mr. Singh is a long-time diabetic.  He testified that, despite his
diabetes, as of September 2007, he did not require corrective eye-wear for
driving.  His evidence in that respect was unchallenged, and there was no
allegation in the Statement of Defence that the accident was caused as a result
of Mr. Singh’s impaired vision or failing eyesight.

[14]
According to Mr. Singh, he was travelling in the left travel lane
(sometimes referred to by other witnesses as the “fast” lane or the centre
lane) on Scott Road.  A police car had been travelling behind him since about
88th Avenue.  As Mr. Singh recalled, he was travelling about 50 kilometres per
hour.  He recalled that, as he approached the intersection, there was a car
beside him on his left.  Mr. Singh did not recall there being other vehicles
around him.  There was some inconsistency on this point between Mr. Singh’s
evidence at trial and his evidence on his examination for discovery.

[15]
According to Mr. Singh, he was looking straight ahead, not up or down.  There
was also some inconsistency on this point between Mr. Singh’s evidence at trial
and his answer on a confidential patient information form that Mr. Singh
completed for his chiropractor in November 2007.  One of the questions on the
form was, “Which direction were you looking at the time of impact?”  The
choices were:  straight ahead, right, left, up or down.  Mr. Singh circled “down.”

[16]
According to Mr. Singh, he did not hear anything unusual.  The traffic
light at the intersection was green for vehicles on Scott Road.  As he
recalled, as soon as he entered the intersection, a police car came up right in
front of him.  At that point, Mr. Singh saw the emergency lights on the police car.
According to Mr. Singh, he tried to slow down and he applied his brakes.
However, he could not stop, and he hit the driver’s side of the police
vehicle.  According to Mr. Singh, his car was pushed westwards, about ten
feet.  His body went forward and then back.  His car’s airbag on the driver’s
side deployed.

[17]
Mr. Deol was driving a large diesel gravel truck the day of the
accident.  As he recalled, the windows of his truck were closed and the radio
was on, although he was unsure whether the air conditioning was also on.  There
was also noise from the truck’s engine.

[18]
Mr. Deol was travelling south on Scott Road and was intending to turn
left, to go east on 96th Avenue, on his way to a job.  As Mr. Deol recalled, he
was in the left turn lane, and, at that point, the light for through traffic on
Scott Road was red.  He recalled that there were three or four cars in front of
his vehicle in the left-turn lane, and that they turned on the green left-turn
arrow.  However, the arrow turned yellow for him.  Mr. Deol decided that he
could not make the turn quickly enough and so waited, with the front of his
truck just past the crosswalk and partly into the intersection, to make his
turn.  I conclude that, at this point, the traffic light had turned green for
through traffic on Scott Road.

[19]
As Mr. Deol recalled, he saw a police car to his left, and to the left
of other westbound vehicles on 96th Avenue.  The emergency lights on the police
car drew his attention.  Mr. Deol was asked on his examination-in-chief whether
he heard any unusual noises, and he said that he did not.  He recalled that the
police car stopped at the stop line on 96th Avenue, even with the other cars,
at the same time as the light turned green for traffic on Scott Road.
According to Mr. Deol, from the point when he noticed the police car, all
traffic was stopped in all four directions.  As Mr. Deol recalled, the police
car then proceeded slowly into the middle of the intersection.  According to
Mr. Deol, at the same time, Mr. Singh’s vehicle came into the intersection and
hit the police car.  When Mr. Singh’s car hit the police car, the police car
then hit Mr. Deol’s truck and ended up on the sidewalk.

[20]
During his testimony, Mr. Deol observed that sometimes people do not
hear an emergency siren.  When asked on cross-examination, he testified that it
was possible he was not able to hear the siren and that he was not sure if he
heard one.  As best he could recall, he saw the emergency lights and did not
hear anything unusual.

[21]
A year or two before the accident, Mr. Chand and Mr. Singh became
acquainted with one another through soccer, which both of them played.  Indeed,
soccer was one of Mr. Singh’s favourite pastimes.  However, based on the
evidence of both of them, I conclude they were merely acquaintances, rather
than friends.  It was simply a co-incidence that Mr. Chand witnessed the
collision.

[22]
Mr. Chand lived a few blocks away from the intersection of Scott Road
and 96th Avenue, and he was on his way home from the gym.  He was travelling
northbound on Scott Road, intending to turn left onto 96th Avenue, and he moved
from the left lane into the left-turn lane.  As Mr. Chand recalled, he had the
music on in his vehicle and the windows were closed.  According to Mr. Chand,
when he arrived at the intersection, there were two or three cars ahead of
him.  He could not recall whether the traffic was moving or stopped.

[23]
Mr. Chand did not see the collision itself.  He recalled seeing the
emergency lights on the police car.  In his examination-in-chief, Mr. Chand was
asked if he heard a siren, and he said he did not.  He said that he thought he
might have heard a little of the collision itself.

[24]
I turn next to the evidence of Constable Parrish.

[25]
The day of the accident, Constable Parrish was driving a 2005 Crown
Victoria, which was a regular vehicle for her to drive.  The vehicle had all of
the usual RCMP markings and emergency equipment, including lights and sirens.
She had done a pre-patrol examination at the beginning of her shift, and both
the siren and emergency lights on the vehicle were functioning.

[26]
Constable Parrish was familiar with the intersection at Scott Road and
96th Avenue.  She testified that the traffic there is always moderate to high,
depending on the time of day.  In the late morning on September 12, 2007, it
was moderate, as she recalled.  This is consistent with what other witnesses
described.

[27]
According to Constable Parrish, before the collision, she was travelling
on 96th Avenue, westbound, on her way to the west area of Surrey and the north
area of Delta.  Then she received a tone alert (a high-pitched bell ringing)
from the dispatcher, alerting her that a “Priority 1” call was going to be
relayed from dispatch.  There was an unknown male with a child; the man had a
knife and was going to use it to harm the child.  Therefore, RCMP members were
being dispatched to 111th Street and 96th Avenue.

[28]
Constable Parrish explained that “Priority 1” was one of the highest
priority calls.  In this case, the incident was in progress, and dispatch had
the man on the line.  The man had a child and a weapon.  Therefore, the call
was of the highest priority.  As Constable Parrish recalled, she responded to
the call and was given information.  She was then north and east of the
location.  Although there were numerous police vehicles being dispatched to the
same call, she was one of the lead vehicles.  According to Constable Parrish,
she responded to the location of the call with lights and sirens.  She described
this as a “code 3” response, which meant respond at once with emergency
equipment activated.

[29]
Constable Parrish testified that she had her vehicle’s emergency lights
fully activated, which can be done with a single switch.  She testified that
she also activated the “wail” continuous siren, which is done with a single
button.  Constable Parrish explained that there are buttons for both the siren
and air horn.  For the siren, hitting the button once turns the siren on, and
hitting it again turns the siren off.  On the other hand, the air horn is
intermittent.  An officer turns it on by pressing the button, and turns it off
by taking her finger off the button.  If the wail siren is on, it remains on (even
though the air horn is being used) until it is turned off.  According to
Constable Parrish, based on what she had been told by her dispatcher, she had
reasonable grounds to believe there was a risk of great harm to the child at
the location involved in the call, and that outweighed the potential harm to
the general public.

[30]
According to Constable Parrish, when she arrived at 96th Avenue and
128th Street, she deactivated her emergency equipment to speak to the
dispatcher and confirm the address of the call.  Her dispatcher told her to
continue to respond.  According to Constable Parrish, she then reactivated her
vehicle’s emergency equipment, including lights and siren.  She recalled
encountering traffic on 96th Avenue, and that, although she had her vehicle’s
“wail” siren activated, some vehicles were slow to move over, so she used her
vehicle’s air horn.

[31]
According to Constable Parrish, when she arrived at the intersection of Scott
Road and 96th Avenue, she faced a red light.  She recalled that a car was
stopped in the through lane, and so she moved her vehicle into the dedicated
left-turn lane.  According to Constable Parrish, she then came to a stop.  She
had her vehicle’s emergency lights and siren activated.  She intended to
continue west on 96th Avenue.  As Constable Parrish recalled, once she stopped,
she looked for pedestrians, and satisfied herself there was no risk there.  According
to Constable Parrish, there were no vehicles in the intersection northbound
after she stopped at stop line, although there were some southbound vehicles.  As
Constable Parrish recalled, she then pulled forward from the stop line into the
crosswalk, to get a better view of the northbound lanes on Scott Road.
According to Constable Parrish, there was a truck in the shoulder lane, and she
satisfied herself that the truck was going to yield to her, as if it were
making a right turn.  According to Constable Parrish, before she entered the
intersection, she looked for vehicles in the northbound through lanes on Scott
Road.  As she recalled, she did not see any vehicles that she thought were an
immediate risk to her.

[32]
According to Constable Parrish, she then moved forward from the crosswalk
into the intersection.  She recalled being aware there were still some vehicles
moving, and she continued to use her air horn.  As Constable Parrish recalled,
she continued to look at the northbound lanes.  In her examination-in-chief, she
did not recall there being any vehicles in the northbound turning lane on Scott
Road, although during cross-examination, she recalled that there was a vehicle
in the northbound left turn lane.  Constable Parrish conceded on
cross-examination that she observed vehicles northbound on Scott Road, but she
recalled there was nothing that stood out to her as requiring attention and, as
far as she could recall, there were no northbound vehicles within 20 metres of
the intersection.

[33]
As Constable Parrish recalled, after her vehicle cleared the northbound
centre lane of Scott Road, she then turned her focus to southbound traffic.
She recalls there was a gravel truck stopped in the southbound left turn lane.
This was Mr. Deol’s truck.  She continued to use her air horn.  According to
Constable Parrish, she stopped her vehicle in about the centre of the
intersection, established eye contact with Mr. Deol and got a commitment from
him not to move.  She satisfied herself it was safe to proceed.

[34]
As Constable Parrish recalled, by this time, she had stopped three times
to check for other traffic:  first, at the stop line on 96th Avenue; then, at
the crosswalk before entering the intersection; and third, as she was
proceeding through the intersection, when she was in (i.e., perpendicular to)
the centre northbound lane of Scott Road.  Constable Parrish denied the
suggestion put to her on cross-examination that she stopped her vehicle only
once, at the stop line on 96th Avenue, and then drove through the intersection.
She also disagreed that it was possible her vehicle’s siren was not activated.
She was not asked whether or not she agreed with Mr. Deol’s observation that sometimes
people do not hear an emergency siren.

[35]
According to Constable Parrish, once she had cleared the centre
northbound lane of Scott Road, she then turned her attention to the other
southbound lanes.  However, Mr. Deol’s truck was blocking view.  As she
recalled, she was continuing to use her air horn and siren.  According to Constable
Parrish, she started to creep forward, looking around the truck.  She recalled
observing that the vehicles in the southbound lanes had slowed.  She was
creeping forward in her vehicle, and it was at that point that Mr. Singh’s car
collided with her vehicle.

[36]
Mr. Singh hit Constable Parrish’s vehicle on the driver’s side, in the
area of the front left tire and back toward the driver’s door.  As Mr. Deol and
others testified, Constable Parrish’s vehicle then hit Mr. Deol’s truck and
continued moving until it came to rest on the sidewalk on the northwest corner
of 96th Avenue.  Constable Parrish testified that, before her vehicle came to a
stop, she called in the collision to her dispatcher.  Constable Parrish’s side
air bag had deployed.  Once her vehicle stopped, she recalled feeling anxious
when she was unable to open the door on the driver’s side and thinking about
the possibility of fire.  Another officer, Constable Lucic, who had been
travelling behind Mr. Singh prior to the collision, arrived very quickly and
helped open the door.

[37]
Constable Parrish recalled that her siren and emergency lights were
still active.  Other witnesses were not asked about this.  Constable Parrish
remembered thinking that she could shut the siren and lights off.

[38]
Just before the collision occurred, Constable Lucic was in his RCMP
vehicle, travelling northbound on Scott Road.  He recalled that he was in the
left travel lane behind a Pontiac, and I conclude that his vehicle is the
police vehicle Mr. Singh mentioned he saw travelling behind his car.  Constable
Lucic was responding to a Priority 2 call and was still receiving information, so
he did not have his vehicle’s emergency equipment activated.

[39]
According to Constable Lucic, as he approached the intersection, the
traffic light was green.  He recalled that, in the lane to his right, traffic
was slowing down and starting to pile up just before 96th Avenue.  According to
Constable Lucic, he heard a police siren.  He estimated that he was about 20
metres from the intersection when he heard it.  Initially, he could not tell
where the siren was coming from, but, when he was about 15 metres or so from
the intersection, he then observed a police vehicle on 96th Avenue.  It was
stopped at the intersection.  As Constable Lucic recalled, the police vehicle
then moved across the crosswalk.  He recalled that its lights and siren were on.
Constable Lucic described the police vehicle as creeping up, stopping and then
going.  As he recalled, he slowed down to stop, about a car-length before the crosswalk
across Scott Road.  According to Constable Lucic, other vehicles had also
stopped.  However, Mr. Singh continued through the intersection and hit the
police vehicle.  Like other witnesses, Constable Lucic observed that the police
vehicle then hit Mr. Deol’s truck and ended up on the sidewalk.

[40]
Constable Lucic then activated the lights and siren on his vehicle.  He
concluded that the police vehicle had sustained more damage than Mr. Singh’s
and attended there first.  He assisted Constable Parrish to get out of her
vehicle.

[41]
He was then directed to look for witnesses.  Constable Lucic made notes
at the scene and also took an oral statement (which was recorded and, as of
trial, available on CD) from Mr. Deol.  He acknowledged that his notes do not
say anything about a siren, although they do say Constable Parrish’s emergency
lights were on.  At trial, Constable Lucic explained that, at the time, he was
still very junior (he joined the RCMP in May 2007) and had “inadvertently
omitted” to mention the siren.  When asked on cross-examination, Constable
Lucic was unable to recall whether he asked Mr. Deol about a siren, and he had
not listened to the CD before giving evidence at trial.  He also acknowledged
that a general occurrence report prepared shortly after the accident also does
not mention a siren, but he explained that the report was prepared from his
notes.

[42]
Mr. Barros was the final witness to the accident called to testify at trial.

[43]
As Mr. Barros recalled, he was northbound on Scott Road, and was stopped
in the left turn lane.  According to Mr. Barros, his was the first vehicle in
the left turn lane, and he had a clear view of the intersection.  He did not
recall the colour of the traffic light, but he did recall he did not enter the
intersection, although (as of trial) he could not recall why.

[44]
Mr. Barros recalled that he heard sirens from a police car, coming from
his right.  He then saw the car, with its emergency lights activated, on 96th
Avenue, in the intersection.  He recalled that a car went past him in the left
travel lane on Scott Road and hit the police car in the intersection.

[45]
Mr. Barros was not cross-examined.

[46]
Mr. Singh was able to get out of his car after the collision.  He recalled
that his neck, chest and left shoulder felt very painful.  An ambulance arrived
and took him to Surrey Memorial Hospital.  According to Mr. Singh, he felt
considerable pain in his neck, chest, lower back, left shoulder.  He was unable
to recall how long he was at the hospital, but returned home later that day,
still in pain.  Mr. Singh went to see his family doctor the following day.

[47]
While Mr. Singh was at the hospital, a police officer gave him a ticket
for failing to yield to an emergency vehicle.  Mr. Singh did not dispute the
ticket, and paid the fine.

Analysis and Findings on Liability

[48]
Where an accident occurs on a highway, a useful starting place is to
determine who had the right of way in accordance with the prevailing rules of
the road.  Generally speaking, the party with the right of way is entitled to
assume that other highway users will abide by the rules of the road, but cannot
do so without regard for his or her own safety or the safety of others.  See Enright
v. Marwick, 2004 BCCA 259, at para. 22.

[49]
Liability in this case depends on who had the right of way at the
intersection:  Mr. Singh or Constable Parrish?

[50]
As Grauer J. observed in Haczewski v. British Columbia,
2012 BCSC 380, at para. 12, no statute need be cited for the general
proposition that a vehicle entering a controlled intersection with a green
light has the right of way over vehicles facing the red light.  However, what
is the situation where the vehicle with the red light is a police car
responding to an emergency?

[51]
The Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides
certain privileges to emergency vehicles, including the limited right to
proceed through a red light without stopping:

Exemption for emergency
vehicles

122  (1) Despite anything in this
Part, but subject to subsections (2) and (4), a driver of an emergency vehicle
may do the following:

(a) exceed the speed limit;

(b) proceed past a red traffic control signal or stop sign
without stopping;

(c) disregard rules and traffic control devices governing
direction of movement or turning in specified directions;

(d) stop or stand.

(2) The driver of an emergency
vehicle must not exercise the privileges granted by subsection (1) except in
accordance with the regulations.

. . .

(4) The driver of an emergency
vehicle exercising a privilege granted by subsection (1) must drive with due
regard for safety, having regard to all the circumstances of the case,
including the following:

(a) the nature, condition and use of the highway;

(b) the amount of traffic that is on, or might reasonably be
expected to be on, the highway;

(c) the nature of the use being
made of the emergency vehicle at the time.

[52]
The use of those privileges is governed by the Motor Vehicle Act
Emergency Vehicle Driving Regulation, B.C. Reg. 133/98, which provides,
in s. 4:

Emergency response by peace
officer

4 (1)  A peace officer operating
an emergency vehicle for purposes other than pursuit may exercise the
privileges granted by section 122 (1) of the Motor Vehicle Act if

(a) the peace officer has reasonable grounds to believe that
the risk of harm to members of the public from the exercise of those privileges
is less than the risk of harm to members of the public should those privileges
not be exercised, and

(b) the peace officer operates the following emergency
equipment, as applicable:

(i)  in the exercise of privileges described in section 122
(1) (a) to (c) of the Motor Vehicle Act, an emergency light and siren;

. . .

. . .

(3)  In considering whether there
are reasonable grounds under subsection (1), (2) or (5) a peace officer must

(a) consider the factors described in section 3 (2), and

(b) weigh the degree of risk of harm to members of the
public against the seriousness of the nature and circumstances of the suspected
offence or incident.

. . .

(6)  Factors which will increase
the risk of harm to members of the public for purposes of subsections (1), (2)
and (5) include

(a) attempting to close the distance between a peace
officer’s vehicle and another vehicle,

(b) if there is poor visibility,

(c) if there is pedestrian or other vehicular traffic on the
highway, and

(d) if the peace officer must
disregard a yield sign or pass through a crosswalk or uncontrolled
intersection.

[53]
Section 3(2) of the Regulation provides that:

In considering whether there are
reasonable grounds . . . the driver of the emergency vehicle must consider any
pertinent factors, including the following, if relevant:

(a) the nature and circumstances of the suspected offence or
incident;

(b) the risk of harm posed by the manner in which the
emergency vehicle is being or is likely to be operated;

(c) the risk of harm posed by the distance, speed or length
of time required or likely to be required to exercise the privileges;

(d) the nature, condition and use of the highway;

(e) the volume and nature of
pedestrian or vehicular traffic that is, or might reasonably be expected to be,
in the area.

[54]
Section 177 of the Motor Vehicle Act describes the
obligations of other drivers, when an emergency vehicle is approaching:

Approach
of emergency vehicle

177  On the immediate approach of an emergency vehicle giving
an audible signal by a bell, siren or exhaust whistle, and showing a visible
flashing red light, except when otherwise directed by a peace officer, a driver
must yield the right of way, and immediately drive to a position parallel to
and as close as possible to the nearest edge or curb of the roadway, clear of
an intersection, and stop and remain in that position until the emergency
vehicle has passed.

[55]
Moreover, s. 127(1) of the Motor Vehicle Act provides
that:

When a green light alone is
exhibited at an intersection by a traffic control signal,

(a)        the driver of a vehicle facing the green light

. . .

(iii)       must yield the right of
way to vehicles lawfully in the intersection at the time the green light became
exhibited[.]

[56]
The standard of care that is applicable to Constable Parrish is that of
a reasonable police officer, acting reasonably and within the statutory powers
imposed on her or him according to the circumstances of the case:  see Burbank
v. R.T.B., 2007 BCCA 215, at para. 28.

[57]
Before setting out my findings and conclusions, I will make some
comments and observations on credibility.

[58]
In my view, the witnesses who testified on the liability issues were
honest and doing their best to describe the events as they remembered them.  The
reliability and accuracy of their memories are the main concerns.  In addition,
a court is entitled to accept parts of a witness’s evidence and reject other
parts, and can attribute different weight to different parts of the evidence
that the court has accepted.

[59]
Of course, at trial, all of the witnesses were attempting to recall
events that were some years in the past.  With respect in particular to the
moments leading up to the accident, they were attempting to describe in some
detail events that happened suddenly and very quickly.  On the morning of
September 12, 2007, no one was watching and waiting for two cars to collide
with one another in the intersection, ready to note down every detail.

[60]
I have concluded that Mr. Singh’s memory is fragile and not very
reliable.

[61]
There were inconsistencies between his evidence on his examination for
discovery and his evidence at trial concerning other vehicles around him on the
day of the accident.  In a statement Mr. Singh gave to the Insurance
Corporation of British Columbia on September 20, 2007, he stated that he did
not see any emergency lights on Constable Parrish’s car.  However, his
testimony at trial is that he did see her emergency lights, and there is no
doubt based on the witnesses’ evidence generally that her emergency lights were
in fact activated.  When, after the accident, Mr. Singh was given a ticket for
failing to yield to an emergency vehicle, he paid it.  He was never asked to
explain his reasons for doing so, but (in the absence of an explanation, and
although I do not place much weight on it) his conduct is consistent with the
conclusion that he did in fact fail to yield.  At trial, Mr. Singh had trouble
remembering whether he had worked for a particular employer in 2008, or in
2009.  His evidence at trial was that it was in 2008, which was inconsistent
with his discovery evidence.  It was only after his cross-examination had been
completed and he had been excused from the witness stand that he located a
calendar.  The calendar refreshed his memory that in fact he had worked for the
employer in 2009, not 2008, and I allowed him to be recalled to give that
evidence.

[62]
These are a few examples to illustrate why I find that Mr. Singh’s
memory is fragile and not very reliable.

[63]
Therefore, I would not conclude, based on Mr. Singh’s evidence, that
Constable Parrish did not have her siren activated when she arrived at the
intersection of Scott Road and 96th Avenue and Mr. Singh subsequently collided
with her car.

[64]
Mr. Deol could not recall hearing anything “unusual.”  However, Mr. Deol
was driving a large truck with a noisy engine.  The windows of his truck were
closed and the radio was on; the air conditioning may have been on (although
Mr. Deol was unsure).  He had seen Constable Parrish’s vehicle because of the
flashing lights, and he was stopped with no intention of moving.  There was no
need for him, in addition, to be listening for or paying attention to a siren.
Mr. Deol testified that he was not sure if he heard one.  As best he could
recall, he saw the emergency lights and did not hear anything unusual.  In my
view, Mr. Deol’s evidence is too equivocal for me to give it much weight on the
question of whether Constable Parrish had activated the siren or not.

[65]
I draw the same conclusion concerning Mr. Chand’s evidence.  Mr. Chand
had very little recollection of events.  As best he could recall, he had the
music on in his vehicle and the windows were closed.  Outside sounds were
therefore likely to be muffled.  Like Mr. Deol, he was waiting to make a left
turn.  At the relevant time, he did not necessarily need to be paying attention
to a siren because he was not moving.  When asked during his
examination-in-chief, Mr. Chand said that he did not hear a siren.  But the
question was suggestive, and I do not place much weight on the answer.  Mr.
Chand said that he thought he might have heard a little of the collision
itself.  The collision would have been a significant and probably loud event,
happening more or less right in front of him.  Accepting at face value Mr.
Chand’s evidence about what he heard in relation to the collision, I would not
conclude from Mr. Chand’s evidence that the siren in Constable Parrish’s
vehicle was not activated.

[66]
Mr. Barros testified that he heard the siren and then saw Constable
Parrish’s police car with the emergency lights.  He was not cross-examined at
all.

[67]
Constable Lucic also testified that he heard the siren as he was
travelling north towards the intersection, behind Mr. Singh’s car.  It is
curious that he did not mention the siren in his notes prepared at the time of
the accident.  However, his explanation (based on the undisputed fact that he
was relatively new to the RCMP) was reasonable and not seriously challenged on
cross-examination.  I draw no conclusions based on the audio interview with Mr.
Deol.  If contents of this interview were likely to be helpful to either side,
I would have expected to hear something more about what was on the CD than I
did.

[68]
Constable Parrish testified that her siren was activated when she
approached and was at the intersection of Scott Road and 96th Avenue.  She
explained when and how she activated her siren.  She explained how the siren is
activated by pressing a button, and that, once the siren button is pressed and
the siren is turned on, it remains on until the button is pressed again.  She
explained that she reactivated the siren after speaking with her dispatcher,
and that she had it activated as she travelled down 96th Avenue towards the
intersection with Scott Road.  Her explanations were logical, appropriately
detailed and consistent with the circumstances in which Constable Parrish was
operating.

[69]
I find that when Constable Parrish arrived at the intersection of Scott
Road and 96th Avenue, both the emergency lights and the siren on her vehicle
were activated, and they remained activated when she proceeded into the
intersection.  I accept Constable Parrish’s evidence in this regard.  Her
evidence is supported by and consistent with the evidence of Constable Lucic
and also Mr. Barros (whose evidence was unchallenged).  The conclusion that
both the emergency lights and siren were activated is not contradicted by the
evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I
conclude that, on this point, Mr. Singh does not accurately recall the events.

[70]
I conclude, therefore, that, at the intersection, Constable Parrish had
the right of way, and Mr. Singh was obliged to yield to her.

[71]
I find further that Constable Parrish had reasonable grounds to believe
that, at the relevant time, the risk of harm to members of the public from the
exercise of the privileges under s. 122(1) of the Motor Vehicle Act
was less than the risk of harm to members of the public (namely, the child
threatened with harm) if those privileges were not exercised.

[72]
There was never any serious challenge to Constable Parrish’s evidence
concerning the nature of the call to which she was responding.  She had a
report that a man with a knife had a child and was threatening to harm the
child.  This is a very serious matter.  In Constable Parrish’s professional
judgment, after weighing the risks, it was appropriate to respond “code 3.”  In
my view, her assessment of the risk of harm to the child was reasonable.

[73]
However, Mr. Buxton submits on behalf of Mr. Singh that, even if
Constable Parrish had the right of way, she was nevertheless obligated to enter
the intersection with due care and attention, with regard for the safety of the
public.  He submits that Mr. Singh’s car was there for Constable Parrish to
see, had she looked down the northbound lanes of Scott Road when she stopped
before entering the intersection, but Constable Parrish did not see it.
Instead, and too soon, as she made her way across the intersection, she turned
her attention to the southbound lanes.  Mr. Buxton argues that, if Constable
Lucic’s estimate of distances is accepted, then Mr. Singh was simply too close,
and Constable Parrish ought to have yielded to him.

[74]
In support of his argument, Mr. Buxton also relies on Mr. Deol’s
evidence concerning the progression of Constable Parrish’s vehicle across the
intersection, after she stopped at the stop line.  He submits that the
interference that should be drawn is that Constable Parrish proceeded through
the intersection without stopping again and without keeping a proper lookout
for northbound traffic.  Thus, in Mr. Buxton’s submission, she travelled too
quickly and without exercising the appropriate degree of caution.

[75]
 The result, in Mr. Buxton’s submission, is that Constable Parrish
should be found to have been negligent, and her negligence caused the
collision.

[76]
I do not agree.

[77]
Mr. Buxton’s argument depends on the accuracy of Constable Lucic’s
estimate of distances, and on Mr. Deol not only accurately observing everything
that Constable Parrish was doing but also being able to recall it more than
four years later.  I prefer to give greater weight to Constable Parrish’s
description of her own actions.  Moreover, based on Mr. Deol’s evidence (and consistent
with Constable Parrish’s), traffic at the intersection had come to a stop.  I
accept Constable Parrish’s evidence that, at Scott Road and 96th Avenue, she
stopped three times:  first, at the stop line; then, before she entered the
intersection (where she satisfied herself that there were no northbound
vehicles within 20 metres of the intersection); and again as she was proceeding
through the intersection.

[78]
I find that Constable Parrish was proceeding cautiously across the
intersection, with her emergency lights and siren activated, and her conduct was
consistent with that of a reasonable officer acting reasonably and within the
statutory powers (and duties) imposed on her in the circumstances on September
12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield
the right of way to her.

Disposition and summary

[79]
I conclude that Mr. Singh has not established, on a balance of
probabilities, that the accident was the result of Constable Parrish’s
negligence, and he has therefore failed to establish liability on the part of
the Minister for Public Safety.  In those circumstances, I do not intend to
address matters relevant to any injuries, loss and damage.

[80]
Mr. Singh’s action is dismissed.

[81]
Unless there are relevant matters on which counsel wish to make
submissions, costs will follow the event.

__________ “Adair J.”_________________

The
Honourable Madam Justice Adair