Judge finds railway company vicariously liable for conductor’s negligence in fatal Surrey train crash

The crash happened between a car and locomotive at Scott Road and Larson Road in 2007

VANCOUVER — A B.C. Supreme Court judge has found Southern Railway of British Columbia Limited “vicariously liable” for a conductor’s negligence in connection with a 2007 crash between a car and a train at a crossing in North Surrey that seriously injured two men and killed a third.

Treves Rylendra Chand, the driver, launched a lawsuit against the railway company and Justice Loryl Russell presided over a nine-day trial in Vancouver. The crash happened at about 10 p.m. April 16, 2007 at a railway crossing north of the intersection of Scott Road and Larson Road, at the foot of the Pattullo Bridge near the waterfront and roughly one block from the Scott Road SkyTrain station. Chand was driving a 1992 blue Ford Taurus and had two passengers, Kamaljit Kalyan and Rick Kumar. Kalyan was in the front seat, and Kumar in the back. The Taurus struck the front left side of the locomotive. Kumar’s injuries were fatal.

The court heard the train was doing about 25 kilometres an hour, at the most.

Chand, whom the court heard has no recollection of what happened, filed a negligence lawsuit against Southern, contending the crossing lights didn’t activate to warn them the train was about to cross. His lawsuit maintained Southern was negligent in maintaining the lights, and that at the time of the crash at least one crew member on the train was negligently carrying out their duties, raising the issue of vicarious liability.

The court heard from eyewitnesses as well as expert testimony.

Witness William Harkness, a transit bus driver, testified that the signal lights weren’t activated nor did he hear crossing bells or a train whistle. He said after the crash the signal lights and bells activated. Harkness also testified Chand hadn’t been speeding or driving erratically. The bus driver recalled at least one other incident when he saw a train cross there without any signals or bells activated to warn traffic.

Bruce Angus, an assessment officer with WorkSafeBC, was driving behind Chand and, like Harkness, testified that the warning lights and bells came on only immediately after the crash. Given his proximity to Chand, he testified, it could have been him who crashed. Chand was not speeding or driving erratically, he told the court.

Bonnie Venables had been travelling southbound on Scott Road and testified that on her side of the crossing the signal lights activated but she couldn’t recall hearing bells or whistles as the train approached.

The train’s engineer, Morey Norman Martin, controlled the train’s speed, braking and whistle from the front right side of the locomotive’s cabin and could not see out of the left side, the court heard.

As the train had been moving westbound, he said, and Chand entered the crossing from south of the tracks, he didn’t know if the crossing lights were operating for northbound traffic but testified that the lights on the opposite side of the tracks were operating. He testified he sounded his horn prior to entering the crossing but wasn’t sure for how many seconds.

The judge said she could not find that the engineer violated any standard of care and found he “did nothing negligent in his role as the train’s engineer.”

Train conductor Steve Cohen, whose job was to keep a lookout for hazards on or near the tracks and let the engineer know if there were any, testified the signal lights on the south side of the tracks were working leading up to the crash but the judge found him to be an unreliable witness.

“He was combative, and changed his testimony on a number of key issues, including when he saw Mr. Chand’s vehicle approaching the crossing,” Russell said in her reasons for decision. “As a result, I find that he did not observe the signal lights flashing in the moments before the collision, nor was he keeping a regular lookout.”

Kevin Tobin was a signal maintenance foreman for Southern at the time of the crash, responsible for maintaining, repairing and building crossing signals for the railway. According to his log, he inspected the crossing four days before the crash and found nothing wrong. He usually inspected it once a week, the court heard.

He came to the crossing one hour after the crash and found the signal system’s relays in their proper position. The court heard he tested the batteries, individual track circuits and relays, and each wire and connector on each terminal for corrosion or loose connections.

Russell noted Tobin told the court any machine can fail, “including the fail-safe crossing lights” and he conceded this could include intermittent failure. “He also noted that the lights facing southbound traffic are on a separate circuit from those facing northbound traffic,” she said in her reasons for decision, “meaning that it is possible for lights to fail on one side but not the other.”

Glenn Mullally, called as an expert witness on signal maintenance, maintained there had been no failure. “However, he also confirmed that it was possible for the lights on the south side of the tracks to fail when the ones on the north side were still working, and that a partial failure of the signal system was possible,” the judge noted.

Mullally also testified that a data recorder on the train indicated its whistle had been blown, but not at the correct time or in the correct way. He also noted the data recorder can make false readings, however, depending on how the whistle was being handled.

“Overall, I find that neither the signal lights south of the Scott Road crossing nor the bells functioned properly at the time of the collision,” Russell found. “Multiple independent eyewitnesses confirmed this.”

“I believe that, on a balance of probabilities, the signal system’s malfunction on the night in question has been established.”

She also found Chand’s counsel failed to prove on a balance of probabilities that Southern “in any way violated the standard of care placed upon it to reasonably maintain the signal lights at the crossing.”

Russell found no evidence that the signal lights had not been properly maintained.

However, she noted that according to Southern’s internal regulations, Cohen wasn’t permitted to allow the train to enter the Scott Road crossing unless the signal lights had been flashing at least 20 seconds. She rejected Cohen’s claim he saw the signal lights, “as well as his claim he was keeping a regular lookout.

“Consequently, my finding is that Mr. Cohen either saw the signal lights were not working at the crossing and failed to tell Mr. Martin to brake in a timely way, or he failed to notice that the lights were inoperative because he did not maintain his duty to keep a proper lookout.”

On the matter of duty of care, Russell noted, “in this matter, surprisingly, Southern has not conceded that it owed a duty of care to members of the public entering the Scott Road crossing. Given this, it is appropriate to outline why Southern owed a duty of care to Mr. Chand.”

She then cited court decisions, including Ryan v. Victoria (City), a case heard by the Supreme Court of Canada, and noted that “in regard to railway crossings, courts have long held that railway companies owe motorists a duty of care.”

“In my view, it is self-evident that a failure to either ensure a train stops before entering a crossing where the signal lights are off, or a failure to keep a lookout, constitutes an unreasonable risk of harm which violates the requisite standard of care. Either way, I find that Mr. Cohen failed to meet the standard of care.”

Russell said Southern’s regulations required the conductor to make sure the train didn’t enter the crossing if signal lights only he could observe from his side weren’t working. “He failed in this regard,” she found.

“But for Mr. Cohen’s failure to meet the requisite standard of care, the accident would not have occurred, and the plaintiff would not have suffered his injuries.”

“Given my determinations regarding Mr. Cohen’s actions, I find Southern vicariously liable for his negligence,” Russell decided.

On June 22, 2009, Chand had pleaded guilty under the Motor Vehicle Act to driving a vehicle without due care and attention, for which he was fined $1,500. Russell noted Chand had no memory of the collision “and so he could not offer a full and robust defence.” She found his guilty plea did not constitute proof he had been driving without due care or erratically.

The court also heard that on March 15, 2007, roughly a month before the crash, someone had stolen hundreds of bonds at the crossing. Bonds are pieces of metal on the rails that trigger signal lights and bells when the train’s wheels make contact with them. At the trial, the defendants denied that the theft, and subsequent repair, might have seriously damaged the signal lights.

Russell gave both sides 10 days from the date of her decision to set out a time to appear before her to speak to costs.

tom.zytaruk@surreynowleader.com

Surrey Now Leader

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