Court Appearance - Jan. 23, 2006

Trial Name: Johnson V Town of Oakville
Ontario Superior Court Of Justice
Trial Held at: 80 Dundas Street, London
Presided by Justice Taylor
Trial Commencement Date: January 23, 2006

Trial Details

This case involved a husband and wife, the Johnsons, who were riding a tandem bicycle along a challenging portion of Fourth Line Road in Oakville, Ontario and collided with an escarpment wall resulting in fatal injuries to Mr. Johnson. The scope of our assignment was to assess the roadway design and signage and provide an opinion whether these were causal factors to the collision. Our investigations included several examinations of the collision site where the following information was gathered:

Approximations were obtained of the traffic volume,
Detailed photographs were taken of the roadway features and signage,
A professional survey was completed outlining the roadway features, signage and obstructions to visibility of the escarpment wall.

Testing was performed at an alternate site using a similar tandem bicycle, a road bicycle and a passenger car to identify the steering and braking differences between the vehicles. Testing indicated that, in comparison to the other vehicles, a tandem bicycle performed poorly in these tests. We conducted detailed studies of police reports, transcripts from Examinations for Discovery, and reference manuals such as Geometric Design Standards for Ontario Roads, Manual of Uniform Traffic Control Devices and Inventory Manual for Municipal Roads. A written report was prepared containing the results of our examinations, research, testing, analysis and the opinions we reached from these investigations.

At trial Mr. Zygmunt Gorski was accepted as qualified to provide expert opinion as to the causal factors of this collision. Along with his discussion of his investigation activities Mr. Gorski provided the following opinions:

Traffic volumes at the site were indicative of a “collector” road versus a “local” road and therefore should have attracted a higher level of service.
Roadway deficiencies included a radius of curve near the escarpment wall of 10 to 15 metres, a down-slope of about 18 degrees, and an uneven road surface leading up to the area of impact.

By posting a maximum speed sign indicating a safe travel speed of 50 km/h when the actual safe speed was much lower the Town of Oakville contravened the requirements of the Manual of Uniform Traffic Control Devices.

A listing of six warning signs were presented for the 600 metre distance leading up to the area of impact.

A listing of additional signs that were posted after the accident date, was provided.

Testing at the site by police using a road bicycle caused a “speed wobble due to undulations in the road pavement” commencing at 90 metres prior to the area of impact.

The Town of Oakville should have noted the deficiencies in the roadway in their Municipal Road Appraisal Sheet so that improvements to the road could be properly prioritized.

The Judgment

Judgment was delivered on Friday, July 28, 2006. Excerpts from the Reasons for Judgment of Justice G. E. Taylor are as follows (typographical errors removed).

[45] The evidence was clear that the Glenorchey Bridge spanning Sixteen Mile Creek on September 13, 1992 was constructed in 1965. No explanation was provided as to why the need to replace the bridge at a new location and with improved alignment as identified in 1985 and 1988, was not addressed.

[46] Exhibit 51 is a survey prepared by the Town of Oakville dated July 15, 1965. It shows the location of an earlier bridge crossing Sixteen Mile Creek, which had collapsed. The location of the original bridge is shown in Exhibit 9, photograph 34, where the stone abutment can still be seen. It is clear that the earlier bridge spanned the Sixteen Mile Creek Valley at a significantly higher elevation than the replacement bridge. As can be seen from Exhibit 51, the alignment of the Fourth Line in the vicinity of the original bridge was not near as dramatic as when the new bridge was constructed in 1965.

[47] The evidence of Barry Amor was that the Glenorchey Bridge, as it existed in 1992 was constructed in 1965. The original bridge had collapsed. Accordingly, there was a need to reconstruct the bridge quickly. For that reason, a new road had to be constructed descending down into the valley so that a one lane bridge could be built over Sixteen Mile Creek. He described the bridge as being constructed quickly and cheaply in order to appease the wishes of the local ratepayers. The new road and bridge were constructed in eight weeks or less. He did not know why a new bridge was not constructed in the same location as the bridge which had collapsed. No explanation was given as to why this inexpensive and hastily built bridge was not replaced or improved in the approximately 27 years between construction and the date of the accident which forms the subject matter of this lawsuit.

[53] Sergeant Macintoch also requested the assistance of Constable Michael Michalski. Constable Michalski had extensive training in bicycle patrol. The Halton Regional Police Service was one of the first police services in Canada to have police officers do patrols on bicycle. Sergeant Michalsski was on of the earliest police cyclists in the province. Constable Michalski rode his police issue hybrid bicycle along the Fourth Line in an attempt to reconstruct the route ridden by Robert and Nelly Johnson. Constable Michalski described his bicycle as being in perfect mechanical condition. Sergeant Macintoch recorded Constable Michalski’s speed by using a radar gun. At a point approximately 60 metres south of the south end of the bridge while traveling at a speed of 51 kilometres per hour, Constable Michalski encountered a “speed wobble”. Constable Michalski said that the speed wobble was caused by the unevenness or roughness of the road surface. He almost lost control of his bicycle. The speed wobble continued almost to the point where the bicycle was brought to a stop. On other runs down the hill, Constable Michalski determined that the highest speed at which he could travel without encountering the speed wobble was 40 kilometres per hour. Constable Michalski also determined that the maximum speed at which he was able to negotiate the right hand turn to the north of the Glenorchey Bridge was 28 kilometres per hour.

Evidence of Zygmunt Gorski

[57] Zygmunt Gorski was called by the plaintiffs and was qualified as an expert in accident reconstruction including the behavioral, vehicular and the environmental factors involved in highway accidents. From 1979 until 1985 (sic), Zygmunt Gorski was a member of the Multidisciplinary Accident Research Team, which operated from the engineering department of the University of Western Ontario. In 1985 (sic), he joined Walters Consulting as an accident reconstructionist. At Walters Consulting he dealt with all aspects of motor vehicle accident reconstruction. In May 1995, he started his own consulting business called Gorski Consulting.

[58] I found Zygmunt Gorski to be a highly qualified expert. His evidence was most helpful.

[59] Zygmunt Gorski attended at the accident site for the first time on June 21, 1994. He re-attended the scene on July 13, 1994. On those occasions, he conducted a traffic count, and did some rough measurements as to the slope of the road immediately south of the Glenorchey Bridge. He also obtained information about traffic studies conducted by the defendant in 1993 and 1994. Based on the traffic count information, it was Mr. Gorski’s opinion that the Fourth Line in the Town of Oakville, would be considered a collector road as opposed to a low volume rural road. Counsel for the defendant pointed out some errors in Mr. Gorski’s methodology in conducting his traffic count. However, the traffic counts form the Town of Oakville, indicated that traffic volumes of approximately 600 vehicles per 24-hour period traveled along the relevant portion of the Fourth Line.

[60] Zygmunt Gorski measured the slope of the road immediately to the south of the Glenorchey Bridge. At a distance of between 50 and 60 metres south of the south end of the bridge, he calculated the down slope to the bridge to be 17.6%. At a point approximately 280 metres south of the south end of the bridge, the slope down to Sixteen Mile Creek begins. As the down slope begins the slope varies between 9.2% and 16.2% until 60 metres south of the bridge when the slope reaches its maximum. From 170 metres south of the bridge until 10 metres south of the bridge the down slope at all-times exceeds 10%. As part of his investigation, Mr. Gorski commissioned a survey of the relevant section of the Fourth Line south of the Glenorchey Bridge. The slope measurements conducted by the surveyor compare favorably to Mr. Gorski’s slope measurements and in some instances, the surveyor’s calculations indicate slopes exceeding those determined by Mr. Gorski. According to Mr. Gorski, the maximum slope permitted for any road or highway in Ontario is 12%. In support of that evidence is Exhibit 18 which is an excerpt from the Manual of Geometric Design Standards for Secondary (sic) Highways which indicates that the maximum grade for roads with average daily traffic between 400-1000 vehicles is between 6 and 12%. Also, the Inventory Manual for Municipal Roads (Exhibit 43) at Table 24-27, entitled Geometric Design Standards for Rural Ontario Roads indicates that the maximum grade for roads with design speeds of 50 to 60 kilometres per hour is 12%. It is therefore clear, that at least in some sections, the Fourth Line had a slope exceeding the maximum allowable.

[63] Zygmunt Gorski calculated that, with no peddling or braking, the tandem bicycle would have been traveling at between 73 and 78 kilometres per hour by the operation of gravity alone, as it arrived at the south end of the bridge. Based on the damage to the bicycle, and the injuries to Nelly and Robert Johnson, Mr. Gorski does not believe that the bicycle hit the embankment at greater than 50 kilomtres per hour. Although recognizing the inherent frailties in the testimony of eyewitnesses, he expressed the opinion that Frederick Marshall’s estimate of the speed of the tandem bicycle at 40 to 45 kilometres per hour was probably fairly accurate.

[64] Zygmunt Gorski also conducted maneuverability and braking tests using a tandem bicycle, a road or racing bicycle and an automobile. As a result of these tests, he concluded that the tandem bicycle was less maneuverable through a slalom course, than the road bike. Based on this testing, and considering the sharp right hand turn immediately to the north of the Glenorchey Bridge, Mr. Gorski expressed the opinion that the tandem bicycle would have to be traveling at much less than 30 kilomtres per hour to negotiate the turn. According to the survey, which he commissioned, the turn had a radius of between 10 and 15 metres. He said that such a sharp turn would not be permitted under any current roadway design criteria.

[65] Barry Amor was responsible for assigning all speed limits to roads in the Town of Oakville. He was responsible for decreasing the speed limit from 60 kilometres per hour to 50 kilometres per hour at the commencement of the steep slope to the south of the Glenorchey Bridge. There was no other speed sign, advisory or other, after the 50 kilometres per hour sign located approximately 550 metres south of the Glenorchey Bridge. He acknowledged that neither motorists nor cyclists could negotiate the sharp right hand turn immediately to the north of the Glenorchey Bridge at 50 kilomtres per hour.

[66] It was Mr. Gorski’s opinion that the road surface was uneven, just to the south of the Glenorchey Bridge, and this was a contributing factor to the accident. However, it was pointed out in cross-examination, he did not first attend at the accident scene until almost two years post accident. Therefore the only source of his belief that the road surface was uneven on the day of the accident was his review of the police photographs, which were taken on that day.

[67] Some support for Mr. Gorski’s evidence is found in testimony of Alex Daychuk who was the foreperson for the Town of Oakville responsible for road maintenance in 1992. He described the surface of the Fourth Line as being “tar and chip”. He acknowledged that “washboarding” is a condition that sometimes exists on a tar and chip surface. If he had noticed severe wash boarding along the Fourth Line he would have corrected it but he acknowledged that less than severe wash boarding could have existed on the Fourth Line at the date of the accident.

[68] Mr. Gorski was critical of the signage along the Fourth Line immediately to the south of the Glenorchey Bridge. He said that the actual down slope should have been clearly signed in term of percentage. He also said that there should have been a meaningful sign in an appropriate location indicating to users of the road that there was an extremely sharp right turn immediately to the north of the bridge.

[69] Mr. Gorski’ final conclusion was that Robert Johnson, as lead cyclist, had many factors to deal with as he was traveling along the Fourth Line on the day in question. Those factors included the speed of the bicycle caused by gravity, the unevenness of the road surface, the changing slope of the road, a sudden realization of the sharp right hand turn and excessive braking. Taking all factors into consideration, it was Zygmunt Gorski’s opinion that the reason why the Johnson bicycle struck the rock embankment was an inability, due to the above factors, to stop the bicycle as opposed to excessive speed.

Conclusion Re Cause of Accident

[70] Considering the evidence of all witnesses with respect to the manner in which the accident occurred, I have come to the following conclusion as to how the accident came about.

[71] As Robert and Nelly Johnson began the descent on the Fourth Line towards the Glenorchey Bridge, the tandem bicycle began to pick up speed. Initially this was no cause for concern. Having reached a speed of approximately 45 kilometres per hour, they encountered wash boarding on the road at approximately 60 metres south of the south end of the bridge. This is the general area where the Johnsons were first observed by Fredrick Marshall. This is the same area where Constable Michalski encountered the speed wobble. It is to be noted that Sergeant Macintosh did not observe Constable Michalski also lose control of his bicycle. He had to be told about it after the fact. It is therefore not surprising to me that Fredrick Marshall does not describe the tandem bicycle as being in a speed wobble or out of control. Fredrick Marshall does say that Robert Johnson was looking down in the direction of the road a few feet in front of the front wheel. This would be consistent with someone attempting to deal with a speed wobble.

Was the Roadway in a Condition of Non-Repair?

[79] I have come to the conclusion that the section of the Fourth Line of the Town of Oakville south of the Glenorchey Bridge, the bridge itself and the roadway immediately to the north of the bridge were in a state of disrepair at the date of the accident in question. I also conclude that the condition of the non-repair was a material cause of the accident involving Nelly and Robert Johnson on their bicycle. Furthermore, in my opinion, the Town of Oakville failed to establish that the condition of non-repair existed despite all reasonable efforts on its part.

[81] I have no hesitation concluding that the condition o the Fourth Line of the Town of Oakville in the vicinity of the Glenorchey Bridge existed to the knowledge of the Town of Oakville or that the Town of Oakville was willfully blind to the condition of the road. For many years leading up to the date of this accident, it was the intention of the Town of Oakville to eventually close this section of the Fourth Line. As a result of this intention, the Town of Oakville was not prepared to invest anymore than minimal amounts to maintain and improve this section of the roadway under its jurisdiction. The construction of the Glenorchey Bridge in 1965 ‘quickly and on the cheap’ evidences this intention. The attitude of Mr. Bloomer when confronted with the obvious errors, inaccuracies and inadequacies in the Appraisal Sheets is a further indication of the attitude of the Town of Oakville. It would have been obvious to anyone who took time to review the Appraisal Sheets with any degree of care, that they were completed improperly. Mr. Bloomer attempted to explain these deficiencies as ‘typographical errors’. Even if the inaccuracies were as a result of typographical errors, which I do not accept, they should have been detected as a result of a conscientious review of the Appraisal Sheets. The more likely conclusion, in my view, is that these Appraisal Sheets were given a little thought because there was no intention on the part of the Town of Oakville to upgrade the condition of the Fourth Line.

[82] In my view, the Town of Oakville failed to meet the expected standard with respect to signage. As stated previously, it is clear that the right hand turn north of the Glenorchey Bridge could only be negotiated at something less than 28 kilomtres per hour. This being the case, according to the Manual of Uniform Traffic Control Devices, the sharp right hand turn sign (Wa-1 R) should have been installed together with an Advisory Speed Sign indicating the speed at which the turn could be safely negotiated.

[83] A review of the 14 police accident reports of accidents that occurred in the vicinity of the Glenorchey Bridge between October 31, 1985 and July 18, 1992 would or should have alerted the Town of Oakville to the problems with the roadway at this location.

Contributory Negligence

[91] The position o the Town of Oakville is that Robert Johnson was the author of his own misfortune by traveling at an excessive rate of speed and failing to use due care and attention while operating the tandem bicycle. It was not argued in the alternative that he was contributory negligence.

[92] I am unable to conclude that either Robert or Nelly Johnson were negligent in the operation of the tandem bicycle. They were traveling within the posted speed limit. They had been given no advance warning of either the sharp elevation change to the north of the Glenorchey Bridge or the sharp right hand turn that could only be negotiated at a speed far below the posted limit.

[93] As Zygmunt Gorski testified, traveling the road earlier in the day in an automobile could actually mask the danger to be faced by traveling the Fourth Line on a bicycle. Because of engine drag, an automobile would not be affected by gravity to the same degree as a bicycle. Also, the evenness o the road surface, or washboarding, would not be noticeable, or as noticeable, to the occupant of an automobile equipped with shock absorbers.

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