A rare decision from the Supreme Court of British Columbia has shed light on the extent to which police owe a duty of care to road users during pursuits.
Plaintiff Inna Bergen’s husband, Viktor Bergen, was killed on Aug. 10, 2008, when Gerald Guliker crashed into their car. The Bergens’ three-year-old daughter and plaintiffs Dmitriy Igans and Alla Kazavcinska were also in their car.
Guliker, who died at the scene, was being followed by police after breaching a restraining order against his ex-wife.
It was known that Guliker was suicidal, had stated an intention to jump into traffic to kill himself, and was a flight risk, according to Savage’s Monday decision.
The plaintiffs argued the RCMP owed a duty of care to other users of the roadway, breached that duty of care, caused the collision and were at least partly liable for the damages suffered.
The defendants — the Minister of Justice and Attorney General of British Columbia, and the Attorney General of Canada — denied Guliker was being pursued or chased by the RCMP at the time of the collision, or that the RCMP had been negligent.
The officers denied they were in pursuit, partly based on a technical police meaning of the word requiring that “all police vehicle emergency equipment must be deployed,” says the decision.
But Savage said he was “not persuaded” that a duty of care only exists “when the police engage in a pursuit that meets the technical definition of the word.”
He added: “Rather, I find that this duty of care exists anytime the police pursue or chase a suspect, within the ordinary meaning of those words.”
The officers did not merely follow Guliker but were closing the distance between their car and his, travelling at up to twice the 50 km/hour speed limit, found Savage.
He also concluded the police had a duty of care before the pursuit occurred, citing Radke v. M.S. (Litigation guardian of). That case “demonstrates that this duty of care comes into play at the point at which it is reasonably foreseeable that a pursuit could occur,” said Savage.
Guliker’s actions were foreseeable, so “the relationship between the RCMP and other users of the roadway was sufficiently close and direct that the RCMP ought to have them in mind as potentially harmed by their actions,” he continued.
Scott Stanley, a personal injury lawyer at Vancouver firm Murphy Battista LLP, says Savage’s decision is useful as there has been “almost a judicial vacuum” on commentary regarding the duty of care in police pursuit cases and the definition of “pursuit.” But he believes the decision is likely to face further scrutiny.
“I think it will go certainly to the Court of Appeal in B.C. and I’d be surprised if it doesn’t get to the Supreme Court of Canada,” he says.
“The decision is noteworthy as police pursuit cases are few and far between,” says Erik Magraken, a partner at MacIsaac & Co., in Victoria, B.C.
It confirms police officers owe the public a duty of care when they choose to pursue other motorists and need to meet the appropriate standard of care in all the circumstances, he adds.
Jeff Witten, a lawyer at Vancouver’s McComb Witten, agrees the case “accentuates” the police’s duty of care towards the general public on the roadway.
It will be “of assistance to lawyers who are representing people who have been injured in a case involving a police pursuit,” he says.
Although the public generally give the police a lot of “leeway” in the course of carrying out law-enforcement work, this case may prompt changes in police behaviour, he believes.
“The case touches on a fundamental issue to public policy,” he says. “This decision should inform members of the RCMP as to the way they should conduct themselves while a pursuit is being initiated and during the course of a pursuit.”
Update Jan. 17: Link to case corrected.