Date: 2007-04-17 Docket: CA033447 Parallel citations: 280 DLR (4th) 647; 66 BCLR (4th) 174 URL: http://canlii.ca/t/1r4xz Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 (CanLII), COURT OF APPEAL FOR BRITISH COLUMBIA

Date: 2007-04-17 Docket: CA033447 Parallel citations: 280 DLR (4th) 647; 66 BCLR (4th) 174 URL: http://canlii.ca/t/1r4xz Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 (CanLII), <http://canlii.ca/t/1r4xz> retrieved on 2014-01-09 Share: Share Print: PDF Format Noteup: Search for decisions citing this decision Reflex Record Related decisions, legislation cited and decisions cited COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 Date: 20070417 Docket: CA033447 Between: Christopher Radke Respondent (Plaintiff) And M.S., an infant by his litigation guardian J.S., Malik Rama, and Insurance Corporation of British Columbia Respondents (Defendants) And Robert Kurtz, Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of British Columbia, and Attorney General of Canada Appellants (Defendants) And Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of British Columbia, and Attorney General of Canada Appellants (Third Parties) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Chiasson J. A. Bowers, Q.C. and B. Bharaj Counsel for the Appellants, Attorney General of British Columbia and Robert Kurtz C. R. Bacon Counsel for the Respondent (Plaintiff) G. P. Brown and M. K. Kinch Counsel for the Respondents (Defendants) Place and Date of Hearing: Vancouver, British Columbia January 30, 2007 Place and Date of Judgment: Vancouver, British Columbia April 17, 2007 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Chiasson Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] Christopher Radke was seriously injured when a stolen vehicle driven by a young offender who was age 15 ("M.S.") ran through a stop sign and collided with his car. M.S. was at the time being pursued by a member of the R.C.M.P., Constable Robert Kurtz. Mr. Radke brought this action for damages against M.S., the Attorney General, and the police officer. It was tried before Madam Justice Bennett who found both M.S. and the officer to have been negligent; the conduct of both fell below the required standard of care. The judge apportioned the fault for the collision between them 85% and 15% respectively: 2005 BCSC 1355 (CanLII), 48 B.C.L.R. (4th) 178, 2005 BCSC 1355. The Province of British Columbia is liable for the conduct of the officer. The Attorney General of British Columbia appeals, raising two grounds upon which it is contended the judge erred. The Attorney General of Canada is named as an appellant but takes no part in the hearing of this appeal. [2] Counsel for the Attorney General of British Columbia first says that it was not open to the judge to find the officer was negligent in having breached the standard of care in the absence of any evidence that he failed to meet the standard required of a competent police officer. He says no evidence was adduced to establish the standard of care. He then says the judge erred in concluding that the officer's conduct in pursuing M.S. caused the collision, in the absence of any evidence with respect to causation. Both grounds are then predicated on there being an absence of evidence to prove two of the requisite elements of the tort of negligence. [3] The appeal was argued with the appeal in Burbank v. R.T.B., 2007 BCCA 215 (CanLII), 2007 BCCA 215, in which judgment is being rendered concurrently. The factual circumstances are somewhat similar and the grounds of the appeal are the same. [4] I outline the circumstances of the pursuit and the judge's conclusions before addressing the two grounds of the appeal. The Pursuit and the Judge's Conclusions [5] Constable Kurtz first observed the vehicle when he was responding to a call about a residential "break and enter" that had occurred. The vehicle was parked and unoccupied. He established, through his dispatcher, it had been reported stolen. He continued on but requested assistance first to watch and then to disable the vehicle on his return, in the expectation of waiting to apprehend its occupants when they arrived. Three other police officers were dispatched and took up positions near the vehicle. [6] Perhaps 15 or 20 minutes later, when Constable Kurtz was again in the vicinity of the vehicle, M.S. and two others got into the vehicle and drove away. One of the officers driving an unmarked van followed. Constable Kurtz, who was then coordinating the pursuit, decided to take over the pursuit himself. He was driving a regularly marked police vehicle. The judge found what happened after that to be as follows: [29] Thus, I make the following findings of fact relating to the pursuit: the stolen vehicle was travelling under the speed limit initially. The speed limit was 50 km/h. It slowed, but did not stop, at the stop sign at Albert Street. It slowed to 20 km/h, but did not stop, at the stop sign at Frances Street, at which point the pursuit commenced. Constable Kurtz turned on both lights and siren. The vehicle picked up speed. The vehicle sped around the corner at Union Street and almost hit the south-side curb, causing M.S. to lose some control of the vehicle. The vehicle accelerated, driving through the stop sign at Beta Avenue at 40 km/h. It continued to accelerate and drove through the stop sign at Alpha Avenue at 60 km/h. Finally, it drove through the stop sign at Willingdon Avenue and struck Mr. Radke's vehicle when travelling at approximately 70 km/h. The entire pursuit lasted 46 seconds. [7] In considering whether the conduct of Constable Kurtz was to any degree negligent, the judge cited the standard of care to be that stated by Kirkpatrick J., as she then was, in Doern v. Phillips Estate 1994 CanLII 1869 (BC SC), (1994), 2 B.C.L.R. (3d) 349 at para. 68 (S.C.), aff'd 1997 CanLII 2433 (BC CA), (1997), 43 B.C.L.R. (3d) 53 (C.A.): ... [T]here is little doubt that the standard of care to which a police officer will be held is that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according to the circumstances of the case. [8] The judge then reviewed the legislation governing police pursuits as well as the applicable R.C.M.P. policies. She said: [71] The statutes and policy provisions provide the context within which to assess whether there was negligence on the part of Constable Kurtz. [72] I add that no expert evidence was provided on the issue of how a reasonable police officer would conduct himself or herself. However, while not saying expert evidence would be inadmissible, in this case, given the facts, the statutes, the policy and case law, I do not need expert evidence to assess whether negligence existed. [73] In assessing the conduct of Constable Kurtz it is necessary to determine whether he complied with the policy. [74] In Noel (Committee of) v. Botkin, 1995 CanLII 3320 (BC SC), (1995), 9 B.C.L.R. (3d) 21, [1995] 7 W.W.R. 479 (S.C.), Clancy J. summed up the approach in this way, at para. 65: In summary, the question to be asked in assessing the conduct of police officers during pursuit is whether they, viewed objectively from the viewpoint of a reasonable police officer, acted reasonably and within the statutory powers conferred upon them. In considering that question, the Court must take into account that officers will be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment. Officers are exempted from compliance with certain traffic rules, provided they meet they meet [sic] the requirements of s.118 of the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens. [75] Therefore, Constable Kurtz's compliance or non-compliance with the pursuit policy is a factor, albeit an important factor, in determining whether he was negligent. See also Doern, supra, at para. 69; Doern v. Phillips Estate 1997 CanLII 2433 (BC CA), (1997), 43 B.C.L.R. (3d) 53, 2 D.L.R. 108 (C.A.), at para. 15-16. [9] After summarizing what she considered to be the principles to be derived from the legislation and the police policies, and expressing the view that Constable Kurtz should have taken the opportunity to disable the vehicle when he had the opportunity, the judge concluded as follows: [83] [Constable Kurtz's] assessment before he started the pursuit did not give due consideration to the factors in the police pursuit policy. The stolen vehicle was not being driven in a manner that threatened public safety. The offence being committed, which he thought was a dual or hybrid offence (and he was probably right), was not a serious offence. There was no one in position to assist him, which raised the risk to the public significantly. [84] Once he put on his lights to pull the vehicle over and saw that the driver's response was to accelerate in a residential area and drive through stop signs while heading towards one of, if not the busiest street in Burnaby, a proper risk assessment would have informed him of the significant danger to the public posed by continuing the pursuit. Constable Kurtz clearly did not follow police policy when initiating the pursuit or by continuing it once the vehicle began accelerating and driving dangerously. [85] Taking into account his failure to conduct proper risk assessments at two critical times, I find Constable Kurtz did not act within the standard of the reasonable police officer, acting reasonably and within the statutory powers imposed upon him in the context of all of the circumstances of this case. I find Constable Kurtz breached his duty of care. [10] With respect to Constable Kurtz's conduct having been a cause of the collision with Mr. Radke's automobile, the judge said: [86] The negligence was clearly a contributing cause to the injuries suffered by Mr. Radke. While I acknowledge M.S. was not obeying traffic signs, it was not until the pursuit commenced that he began driving dangerously. His dangerous driving and the accident was a consequence of the police pursuit. Standard of Care [11] The Attorney General contends that, because there was no evidence that a reasonably competent police officer would have conducted himself differently than did Constable Kurtz, it was not open to the judge to conclude that he had not met the requisite standard of care. Reliance is placed on what was said by Southin J.A., for a majority of four, in Roy v. British Columbia (Attorney General), 2005 BCCA 88 (CanLII), 38 B.C.L.R. (4th) 103, 2005 BCCA 88 at para. 36: Where, as here, at issue is the standard of a competent member of a trade or profession (and the occupation of peace officer falls within that rubric), evidence of those carrying on that occupation is necessary unless, in the words which McPherson C.J.M., inAnderson v. Chasney, reflex, [1949] 2 W.W.R. 337 (Man. C.A.) at 341, adopted from the American case of Mehigan v. Sheeham, 51 A.2d 632 (U.S. N.H. S.C. 1947), the matter is one of "non-technical matters or those of which an ordinary person may be expected to have knowledge." [12] The Attorney General says that no expert evidence was called in support of the case against Constable Kurtz and that police pursuits are not matters that lay persons know about. [13] However, as I have attempted to explain in Burbank, it was not necessary that there be evidence, much less expert evidence, of the standard of care to be met by a police officer for the judge to be able to determine whether the utility of the officer's conduct justified the risk to public safety. The question the judge had to answer was simply whether the nature of the crime (theft of an automobile) for which the police officer sought to apprehend M.S. was sufficiently serious to justify the risk of the consequences that became manifest within less than a minute of the commencement of the pursuit. The question was not unlike the kind of question judges have to regularly answer in negligence cases and, while there may be aspects of police pursuits that are foreign to those who are not trained or experienced police officers, the answer to the question lay well within what can be said to be common knowledge and experience. It lay in assessing whether Constable Kurtz had properly balanced the competing concerns of the apprehension of a young offender who had stolen a car against the danger of a pursuit at considerable speed on city streets where significant pedestrian and vehicular traffic could be expected. [14] The judge decided that the question with which she was faced in this case was to be answered in the negative. In so doing, she found the officer's conduct to be below the requisite standard of care. It was a decision that, on the evidence adduced, was open to her to make, such that I would not accede to the first ground of the appeal. Causation [15] The Attorney General contends that the evidence does not establish that Constable Kurtz's pursuit of M.S. caused the collision with Mr. Radke's automobile. He maintains that M.S. alone caused the collision by refusing to stop when the police car's lights and siren were engaged and then by running the stop sign. [16] I find the judge's succinct finding, that the pursuit was a cause of the collision, entirely consistent with the "but for" test recently affirmed inResurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 at paras. 20-28, as I have discussed in Burbank. I would not accede to this ground of the appeal either. Disposition [17] I would dismiss the appeal. “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Chiasson”