Justice Michael J. Moldaver, Gravity and The Incredible Eye Witness

The following article was written almost 4 years ago. I kept it in draft form as I evaluated its content a number of times in my mind debating whether its important revelations outweigh the negativity directed at some of Ontario’s judiciary. Not all judges are the same yet unfortunately they can become labelled according to the actions of others in their profession. In the end I have decided to publish this despite that it may leave a dark mark on some judges whom I have found to be exceptional citizens.

The Article

A civil suite ensued against the Municipality (officially named “The Town of Milton”) for failure to maintain the road in a proper state of repair. I was the expert witness called by the plaintiffs and I provided a written report of my findings as well as testimony in the trial that took place in 2006. At the trial’s completion Justice Gerald Taylor of the Ontario Superior Court of Justice found the Municipality 100% at fault for the collision. At face value this decision of 100% fault attributed to a single party would appear controversial.  However the details of the evidence reveal otherwise.  In part of Justice Taylor’s decision he wrote his reasons as follows:

“[80] My conclusion that the Fourth Line and the Glenorchey Bridge were in a
state of non-repair arises out of a combination of a number of factors. The
section of the Fourth Line immediately to the south of the Glenorchey Bridge had
a slope of approximately 18% at its maximum. The slope is in excess of what is
generally recommended. The posted speed limit was 50 kilometres per hour. The
evidence is that the maximun speed at which a bicycle could negotiate the sharp
right hand turn immediately to the north of the Glenorchey Bridge was 28
kilometres per hour. Nevertheless, there was no warning sign in advance of the
bridge indicating the sharp right hand turn nor was there any speed advisory
sign telling motorists or cyclists to reduce their speed to permit successful
negotiation of the sharp right hand turn. There was a condition on the surface
of the road which caused bicycles when traveling northbound down the slope to
lose control. It is reasonable to conclude that wash boarding is a condition
that occurs on tar and chip roads. It is reasonable to conclude that wash
boarding on a road with a down slope of as much as 18% will cause vehicles and
in particular, bicycles to lose control. Immediately to the north of the
Glenorchey Bridge is a significant increase in elevation. It would be apparent
to anyone that a failure to negotiate to the sharp right hand turn to the north
of the Glenorchey Bridge could result in disastrous consequences because of the
unforgiving rock embankment just to the north of the bridge. In addition, the
alignment of the road and the Glenorchey bridge was such as to require a slight
turn to the left and then to the right in order to traverse the bridge.
[81] I have no hesitation concluding that the condition of 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 the Town of Oakville to eventually close the
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 Town of Oakville. It would have been obvious to anyone who took
the 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 result of
typographical errors, which I do not except, they should have been detected as
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.”

It was through my actions of presenting objective evidence to Justice Taylor that he was able to make the conclusions that he did. The objective evidence included copies of citations taken from technical manuals such as the Manual of Uniform Traffic Control Devices, the manual of Geometric Design Standards for Ontario Highways and the Inventory Manual for Municipal Roads. It also included a detailed survey of the site conducted by a professional surveying company under my instruction. The confidence with which Justice Taylor could make his judgment was because he could refer to these authoritative resources which would not have been available if I had not made them available for his evaluation.

The defense appealed the verdict and the Ontario Court of Appeal released its judgment in 2008. As a member of the Ontario Court of Appeal 2008 Justice Michael J. Moldaver wrote the decision for the Court. Among a number of provocative comments Justice Moldaver indicated that the trial judge, Justice Gerald E. Taylor, should not have allowed me to testify at trial because I did not possess any “special training, knowledge or experience in either of these matters”. While quoting my comments at testimony he further noted that “Apart from performing some braking tests using a tandem bicycle, Mr. Gorski acknowledged that he had no special training or expertise with tandem bicycles or indeed any bicycles”. At this point it needs to be corrected that the evidence was clear that I did not perform the tests with the tandem bicycle. I had arranged to have two bicycling experts perform those tests and then I arranged a videotaped interview of the lead expert after each test to obtain an indication of what they experienced during the tests.

Justice Moldaver added some further commentary as follows:

“Apart from trial economy, trial judges who fail to properly perform their gatekeeper function run the risk of having their decision-making function usurped or severely eroded by “expert generalists” who profess to know something about everything and who are only too willing to provide the court with a ready-made solution for any contentious issue that might exist. The problem with such witnesses is that while they appear knowledgeable and generally come across well, upon closer scrutiny, their opinions may well turn out to be little more than concoctions consisting of guesswork, speculation, commonplace information and junk science, with a hint of valid science thrown in for good measure.”

Judicial criticism, like any criticism, is proper and necessary when a clear evaluation of the objective facts has been made warranting that criticism. However when it is baseless and uniformed it is damaging to the judiciary as a whole. A judge who was interested in providing an unbiased assessment of my evidence and testimony would have acknowledged in his written decision that what I presented to the court with respect to the roadway deficiencies was fully correct and accurate. The primary facts were as  follows:

1. The roadway was inadequate in that it contained an excessive slope approaching 18% and there was a sag curve which was too extreme. These facts were demonstrated through the direct wording contained in the Ontario Manual of Geometric Design Standards for Ontario Highways.
2. Signage was lacking and inappropriate as demonstrated through the direct wording of the Ontario Manual of Uniform Traffic Control Devices.
3. The roadway Appraisal Sheets were incorrectly coded as demonstrated through the direct wording of the Ontario Inventory Manual for Municipal Roads.

In making these comments in the context of his decision Justice Moldaver was insinuating that I was this “expert generalist” who professed to know something about everything…etc. Yet, even he acknowledged that I stated in my testimony that I was not a bicycling expert. However, the evidence was undeniable that, at that time,  I was an accident reconstructionist with 21 years of experience. For someone who had never spoken to me, and who only had my curriculum vitae to work from, one would think that a measure of caution was prudent. A curriculum vitae may provide a summary of what an expert had done, but it often does not indicate all of an expert’s background. Certainly it cannot indicate what the expert has not done. Often, as it was in my case, experts may not wish to over-state their qualifications.

I did not refer to myself as a bicycling expert because I would reserve such a description to someone whose expertise was narrowed to the field of bicycling.  However Justice Moldaver’s comments were an eager leap into the unknown when he claimed to know that I had no special training or experience.

While not wanting to overstate my qualifications, I had ridden my Peugeot road bike extensively in my years of high school and university when that bicycle was my only means of transportation. In my experimentation with life I conducted all kinds of tricks, some of them quite foolish and dangerous, to explore my capabilities as well as the capabilities of the bike. Riding with no hands was not uncommon, but riding with no hands while rolling off a curb or making a turn was not something that I performed because I lacked the skill or confidence. It was because I gained a solid understanding of the limits of what I  could achieve. In those years I also encountered many situations where a road surface was not ideal or situations where I was riding on a downgrade. I learned exactly what I testified to in my court appearance.

In more recent years I have continued my cycling. I have averaged cycling about 1500 kilometres each 5 or 6 month season for the past 8 years. I have also performed a variety of bicycle testing, some of which will be reported later in this article.

Similar evidence was available with respect to roadway assessments, an area in which Justice Moldaver claimed I had no experience.  My curriculum vitae clearly indicated “Assessments of roadway maintenance and safety defects” was part of my duties while working as an Accident Reconstruction Consultant with a forensic engineering firm. While working with the University of Western Ontario Multi-Disciplinary Accident Research Team statistics are available indicating my involvement in roadway examinations over the 10 years of my employment. I completed at least 624 roadway inspections just in the two major studies (Light Truck and Van Study, Passenger Car Study) conducted by the team. I had been a co-author of a Society of Automotive Engineers (SAE) research paper discussing the dangers of unsatisfactory roadside barriers. I had given testimony with respect to research that was completed on Highway 401 with respect to the incidence of median cross-over collisions and the need for median barriers, and so on. I could demonstrate that I had substantial experience and a long history of roadway assessments.

If Justice Moldaver had read my report that accompanied the evidence of the trial he would have read in the opening sentences that I was assigned to handle the case as part of my employment as an accident reconstruction consultant with a forensic engineering firm. Thus my involvement in this case was not due to a willingness “to provide the court with a ready-made solution for any contentious issue that might exist”. It was a duty of my employment. Of the couple dozen  engineering consultants in that firm my background was deemed most appropriate to handle the case and thus I was assigned to it. Aside from that, my work was no different than the work of any other engineer or police reconstructionist. The assessment of a roadway for its potential contribution to a collision is an essential duty of a reconstructionist and it must be considered in every case.

HVE is an acronym referring to the “Human Vehicle and Environmental” factors that those who wish to assess collisions must consider.   It was a term used and understood by researchers that I became familiar with since my earliest days of commencing my formal activities in the field.  Environmental factors are precisely those related to the road or environment on which the collision-involved vehicle has ridden. To suggest that somehow an investigator, researcher or reconstructionist is performing some unrelated activity when conducting a road assessment is illogical. Lack of training and focus on environmental influences toward a collision is a fundamental problem in many reconstructions and it is perpetuated when judges allow such biased analyses to be brought in as evidence. As an analogy, while a drunk driver may cause his vehicle to fall into a 5-metre hole in the middle of a road it would make no sense to say that the impairment was the sole factor in the event.

The focus of this article will be to return to the issue of the fatal tandem bicycle collision and the comments made by Justice Moldaver in his written decision of 2008. The results of the testing that will be described here  will demonstrate that he had minimal or no knowledge of what is involved in cycling down a steep downgrade and he failed to conduct sufficient research and study before writing his decision for the Court of Appeal. These are not inconsequential or frivolous errors but involve fundamental principles such as the law of gravity that his conclusions have violated.

Background

Steep down-slopes are manageable by professional cyclists who are skilled and familiar with the capabilities of their cycle. It is not uncommon for a professional rider to achieve speeds along steep down-slopes of over 90 kilometres per hour. But there is a difference between such a rider and the typical recreational cyclist who inhabits most of North American roadways. Roadway design, signage and maintenance must be of such quality and uniformity that a typical rider’s expectations are not violated. This idea is not new as the same applies for the safety of drivers of motorized vehicles. Standards of design, signage and maintenance have existed for many decades and are essential for the safety of all travelers. When these standards are not met dangerous scenarios can unfold that may lead to dire consequences.

With respect to cycling, the existence of vertical alignments (up-grades and down-grades) is more crucial than for the average driver of a motorized vehicle. A cyclist’s speed varies more than that of a driver of a motorized vehicle on steep slopes. These comments will be supported by the results of testing that will follow shortly. On up-grades there is a marked limit of speed that a recreational cyclist can achieve for obvious reasons while the driver of a motorized vehicle merely needs to depress the accelerator pedal a little more to maintain, or sometimes even increase, speed on an up-grade. On down-grades cyclists may maintain a lower speed by braking however they are more likely to achieve higher than average speeds by simply allowing the cycle to be pulled to that higher speed by gravity alone. It is possible for an amateur cyclist to achieve a very high speed on a steep down-slope without much knowledge or effort by simply allowing gravity to take effect. The problem however is that dangers develop when the amateur cyclist is incapable of controlling the cycle at such a high speed. Those who design and maintain roadways and cycling paths have the obligation to consider this threat by limiting the steepness of down-slopes so that gravity does not have too extreme of an effect. There is also an obligation to understand the specific dangers imposed to the cycling public and to provide adequate maintenance and signage to protect cyclists on down-grades.

The courts have a role to play in assuring that there will be real consequences when roadways do not meet proper standards. Unfortunately there are occasions when the courts have failed to protect the public. I will now turn to the fatal tandem bicycle and Justice Moldaver’s judgment.

The Johnson Trial

In the 2006 trial Justice Gerald E. Taylor of the Ontario Superior Court of Justice understood the importance of maintaining the safety of roadways when he found the Town of Milton (Oakville) 100% at fault for the death of a cyclist, Robert Johnson, and the serious injuries to his wife, Nelly, as a result of a collision on the Fourth Line road in Oakville on September 13, 1992. Through the production of a number of technical documents, research and testing provided by the only expert witness at trial, Zygmunt Gorski, Justice Taylor was able to consider the multitude of deficiencies existing at the time of the crash and apply his appropriate reasoning to make his judgment. In assessing my background and testimony Justice Taylor made the following comments: “I found Zigmunt Gorski to be a highly qualified expert. His evidence was most helpful”.

The complimentary wording of Justice Taylor was greatly contrasted with that of Justice Moldaver. A number of excerpts from Justice Moldaver’s judgment are attached below to bring context to the results of additional testing and discussions that will be revealed later in this article.

1. Regardless of the precise term used, the trial judge’s finding that the road was uneven and rough for a distance of 60 metres south of the south end of the bridge is amply supported by the evidence.

2. The only eyewitness to the accident was Frederick Marshall. He had been riding his motorcycle and was stopped at the bridge having a cigarette when he suddenly heard people on the hill shouting “woo hoo” or “yahoo”, as if they were having fun. Moments later, he saw a couple coming down the hill on a tandem bicycle. When he first observed them, they were approximately 150 feet (45 metres) south of the bridge.

3. Mr. Marshall’s first thought when he saw the couple was that they were “going way too fast”. When asked what the lead rider was doing when he first observed him, Mr. Marshall stated that “his head was down … he was looking more ahead of the bicycle than in the distance” and he was “alternately pedaling and coasting”. The bicycle appeared to be “upright and stable” and “there didn’t seem to be any lack of control at that point.” Nonetheless, given the speed that the bicycle was travelling, Mr. Marshall thought “how are they going to stop?”

4. When the bicycle was about 10 to 15 feet (3 to 4.5 metres) south of the south end of the bridge, Mr. Marshall heard the lead cyclist (Mr. Johnson) say “Oh, shit” and saw him “appl[y] the brakes … quite suddenly and hard and the bike began skidding.”

5. Mr. Marshall then saw the bicycle continue across the bridge, skidding in a straight line. Its rear wheel remained locked and Mr. Marshall believed that it was now “out of control”. He estimated the speed of the bicycle as it crossed the bridge to be more than 40 kilometres per hour. The trial judge accepted that figure and it accords with the estimate of speed given by the respondents’ expert Mr. Gorski.

6. According to Mr. Marshall, just as the bicycle left the north end of the bridge, it hit a “fairly abrupt rise” in the pavement and it “rose into the air just a few inches.” Thereafter, he believed that the bicycle remained airborne until it eventually struck the embankment sideways at a height of approximately 3 feet (0.9 metres) up the wall.

7. The trial judge found Mr. Marshall to be “a credible witness”. The only part of Mr. Marshall’s evidence that he rejected related to the bicycle being 3 feet in the air when it struck the embankment. The trial judge concluded that Mr. Marshall must have been mistaken on that aspect of his evidence because there were scrape marks on the road leading to the embankment which could only have been made by the bicycle skidding along the road into the embankment.

8. In the trial judge’s summary of Constable Michalski’s evidence, he noted that the constable had performed a number of test runs, using his own “police issue hybrid bicycle along the Fourth Line in an attempt to reconstruct the route ridden” by the Johnsons. Salient to the trial judge’s findings on causation were Constable Michalski’s observations of a “speed wobble” he encountered approximately 60 metres south of the south end of the bridge. The trial judge outlined this aspect of Constable Michalski’s evidence as follows: 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 stop [just before the south end of the bridge]. 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.

9. Sergeant MacIntosh, the officer in charge of the investigation, monitored the test runs performed by Constable Michalski. The trial judge found that when Constable Michalski “encountered the speed wobble”, Sergeant MacIntosh “did not observe [him] almost lose control of his bicycle. He had to be told about it after the fact.”

10. Finally, Constable Michalski testified that based on his tests, the maximum speed at which he was able to safely negotiate the sharp right hand turn north of the north end of the bridge just before the embankment was 28 kilometres per hour.

11. Thus, in the present case, Mr. Gorski should not have been permitted to testify about the effect of rough or uneven road surfaces on tandem or other bicycles, nor about the way in which cyclists are likely to respond to such adverse road conditions. The reason is simple – he had no special training, knowledge or experience in either of these matters. Similarly, he should not have been permitted to testify about road design, pavement deterioration, or placement of road signs for the same reason.

12. Oakville’s chief complaint about Mr. Gorski is that he offered opinion evidence on two critical matters that were beyond the realm of his expertise but which the trial judge accepted in finding Oakville liable. The two opinions are identified by Oakville as follows: (1) The accident was caused not by excessive speed on the part of the Johnson bicycle but rather by lack of an ability to stop due to the difficulty of applying heavy braking in the bumps on the roadway. (2) That Mr. Johnson, upon encountering bumps in the roadway, would have been looking down at the bumps with his attention drawn away from the other problems – the narrow bridge and beyond that the escarpment.

13. With respect, the critical findings that led the trial judge to conclude that the Johnsons were not negligent in the operation of their bicycle are not borne out by the evidence. In arriving at those findings, the trial judge either ignored or misstated pertinent evidence. Had he properly construed the evidence, I am satisfied that on this record, he would have found that Mr. Johnson was operating the bicycle in a negligent manner and that his negligence materially contributed to the accident. In particular, the evidence establishes that Mr. Johnson was traveling too fast for the road conditions and was not keeping a proper lookout.

14. Commencing with Mr. Johnson’s awareness of the sharp right hand turn just to the north of the bridge, Constable Michalski testified that from the top of the slope, he would have had a clear view of the valley, the bridge, the embankment and the sharp right hand turn. He further testified from his observations that a person traveling down the slope would be able to see the embankment from a distance of 180 metres. Mr. Gorski, the respondents’ expert, gave similar evidence.

15. It follows that if Mr. Johnson had been keeping a proper lookout, he would have seen the embankment and recognized the danger it presented long before he reached the bridge and began to cross it.

16. Moreover, Mr. Johnson knew or should have known of the embankment and the sharp right hand turn because he had observed them only hours earlier that day when he and his wife traveled the road by car, going both north and south. The trial judge did not take that evidence into account in arriving at his finding that Mr. Johnson would not have been aware of the embankment and the sharp right hand turn until moments before the collision.[4] He erred in failing to do so, as that evidence was highly significant.

17. Taken as a whole, the evidence clearly establishes that Mr. Johnson knew or should have known of the embankment and the sharp right hand turn long before he arrived at the bridge. Alternatively, if he did not, it was because he was not keeping a proper lookout.

18. As for the speed of the Johnson bicycle and whether it was excessive in the circumstances, once again, the evidence strongly supports such a finding. In this regard, the trial judge erred in suggesting that the exclamation of “woo hoo” or “yahoo” was the only evidence capable of supporting a finding “that the Johnsons were traveling too fast for the road conditions”.  With respect, the evidence was much richer than that.

19. Mrs. Johnson testified that she herself thought her husband was going down the hill too fast and that she told him to “try to stop”. The trial judge referred to this aspect of Mrs. Johnson’s evidence in his summary of her testimony but he failed to consider it when addressing the issue of excessive speed and contributory negligence.

20. Similarly, the trial judge failed to consider much of Mr. Marshall’s evidence on the subject. Mr. Marshall, it will be recalled, testified that when he first saw the Johnsons coming down the hill, he thought they were “going way too fast”. He also testified that the lead rider had his head down and he was “alternately pedaling and coasting”. That hardly fits the description of someone in trouble, experiencing a loss of control. Rather, it suggests someone attempting to maintain or increase speed – a speed that in this case was already excessive in the circumstances. However, the trial judge made no mention of this evidence in his assessment of the speed of the bicycle or the manner in which it was being driven. Respectfully, he erred in failing to do so.

21. The trial judge also erred in failing to consider other factors that were pertinent to the issue of speed and Mr. Johnson’s failure to keep a proper lookout. The Johnsons, as found by the trial judge, were not experienced cyclists. On the day in question, they were traveling down a secondary road that was relatively unfamiliar to them. Common sense would suggest that such a road was unlikely to be in pristine condition, without bumps or rough or uneven sections – hence, the need for caution. Common sense aside, if the Johnsons were paying attention, it would have been obvious to them as they started their that they were heading down a very steep hill, at the bottom of which was a single lane bridge with an embankment in the background.

22. The picture that emerges is one of obvious danger – two inexperienced cyclists traveling down a very steep slope on an unfamiliar secondary road with a single lane bridge and an embankment in the near distance. The situation clearly called for extreme caution. Regrettably, Mr. Johnson drove the bicycle down the hill at an excessive rate of speed while not keeping a proper lookout. He was negligent in doing so and his negligence materially contributed to the accident. Had he been traveling under 40 kilometres per hour, he would not have experienced “speed wobble” before reaching the bridge and there would have been no reason for him to lose control of the bicycle.

23. In the circumstances, given the location of the undulations on the steepest part of the slope and the fact that they could not be seen or anticipated, they constituted a trap for the unwary. In my view, they were a substantial contributing factor to Mr. Johnson’s loss of control of the bicycle and the ensuing accident.

As part of my evidence I made arrangements with a professional surveying firm to prepare a survey of the Glenorchy accident site. The survey was prepared in two pages, one half covering the area of the road leading toward the site and the second page containing the general area of the steepest downgrade in the 200 metres leading up to the small bailey bridge and the escarpment wall. The photo below shows an overall view of the second page of the survey containing the area approaching the escarpment wall.

The photo below shows the portion of the survey showing the bailey bridge and the escarpment wall.

Further information about the status of the site can be obtained from the following photos taken a couple of years after the collision date. The photo below shows a view of the site, looking north, along the portion shown on page 2 of the survey.

The photo below shows a view of the site at its steepest portion. The road had been re-surfaced at the time of this photo taken approximately 2 years after the collision therefore the extent of the surface deterioration at the time of the collision cannot be seen.

The photo below shows a view of the site looking south from the bailey bridge. The tandem bicycle would have been travelling toward the camera with the escarpment wall is located directly behind the camera.

The extent of the unevenness of the road surface at the time of the collision is difficult to appreciate because the police photos taken at the time of the collision are not available and the Municipality repaved the surface before I was able to examine it. However the photo below shows that, even after the re-surfacing, the bottoms of vehicles were scraping the new pavement before the bridge as well as scraping the wood surface of the bridge itself.

What was not revealed at the original trial was that the small bailey bridge was installed at the site approximately in 1965 because there had been a collapse of the original bridge. Recently photographs were uncovered from a local historical society showing the original bridge and the events that led to its collapse.

The photo below reportedly shows the original Glenorchy Bridge that collapsed. The date of the photo is known but was approximated by historical staff as 1900. This view appears to be showing the north side of the bridge on the right as evidenced by the tall abutment that still exists at the site today.

The photo below shows a part of the Glenorchy Bridge and the portion of the road located to its north. The date of this photo is unknown.

The local historical society reported that a truck carrying potatoes was on the bridge when it collapsed. The description from the historical society website indicated the following:

“The bridge stood until 1964 when it collapsed.  There was construction in the area and traffic was being diverted onto the fourth line.  A fully loaded potato truck followed the detour onto the bridge but it collapsed under the weight.  The picture below from the Halton Archives shows the truck in the ravine and the crane that was brought in to retrieve it.  The picture is dated March 1965 however that is the date it was printed and not the date it was taken.  In those days, you didn’t get to upload your pictures from the side of the river, you had to wait until the whole roll of film was finished and take it in for development.”

The photo below reportedly shows the truck and the collapsed bridge. Noting the abutment and position of the truck it is likely that the truck was travelling northbound when the collapse occurred.

The photo below shows a crane located at the site of the collapsed bridge and the tractor-trailer located in the ravine below.

The text from the historical society description indicated: “There was construction in the area and traffic was being diverted onto the fourth line”. What type of inspections were carried out by the engineering staff of this municipality before they diverted traffic onto this bridge? Was it an unforeseeable calamity due to no fault of the municipality? Surely there is some doubt. Yet the collapse of the bridge could have led to the truck driver’s death. It should have been a warning to engineering staff that a focus on future safety was paramount. Yet, following this occurrence the municipality created the new road down to the base of the ravine where the small bailey bridge was installed. This decision caused the dangerously steep down-grades that traffic needed to follow in order to reach the small bridge.

These drawings and photos provide some background to the issues that were discussed at trial.

Returning to Justice Moldaver’s judgment, that I should not have been allowed to testify with respect to the roadway conditions at the Glenorchy collision site, I will present two examples of the type of evidence that Justice Moldaver would have prevented being brought before the court. One instance involved the issue of an inappropriate sag curve that provided inappropriate stopping sight distance. The second involved the actions of municipality employees who, in accounting terms,  “cooked the books” with respect to the completion of a Road Inventory sheet that was required to expose roadway deficiencies.

With respect to the sag curve, I had presented a table in my report which summarized the historical collisions that occurred at the site in the 7 years prior to the fatal bicycle collision. Of the 15 collisions I noted that 8 of these involved northbound vehicles that struck the escarpment wall in conditions of darkness. I testified that the reason why there was an unusually large percentage of these incidents was because the sag curve preceding the escarpment wall was too extreme such that the headlights of approaching vehicles were pointing down into the pavement rather than up ahead as required to expose the escarpment wall. I referred Justice Taylor to the section of the manual “Geometric Design Standards for Ontario Highways” that described the acceptable limits of sag curves. These limits were clearly exceeded at the Glenorchy site. In other words, the change in vertical gradient of the road was too large in the length of roadway near the bridge where the sag existed. This was not a matter of my opinion, the findings were supported by a direct reference to the Geometric Design Standards. In response to their inaction with respect to these collisions, the representative for the municipality testified that they relied upon the conclusions made by the police who regularly reported that the cause of the collisions was due to excessive speed on the part of the drivers. Yet it should have been obvious to the engineering staff of the Municipality that police are not trained to recognize problems such as inappropriate geometric layouts of roadways. By claiming that it was appropriate for them to defer to the expertise of police the municipal staff  were failing to acknowledge the obvious fact that police investigators did not know of the geometric design standards. It was only they, exclusively, who could know, and who should have known, that the problem existed. It was this type of technical information presented to Justice Taylor that Justice Moldaver indicated should not have been revealed.

On the second issue, I presented Justice Taylor with a copy of the Inventory Manual for Municipal Roads. This manual provided detailed instructions to municipality representatives with respect to how they were to fill out Roadway Appraisal Sheets for every road segment in their jurisdiction. Such standard Appraisal Sheets allowed for an independent and standardized method of prioritizing which road segments needed repairs or adjustments in the five-year future. This was an important point because such data, if coded properly, would have exposed the fact that the Glenorchy site would have been high on the list of the Municipality’s list of needed corrections. Instead, the sheets were coded incorrectly. One example was cited by Justice Taylor as follows:

“[41] On Exhibit 40 (one of four Appraisal Sheets), the speed limit is said to be 80 kilometres per hour. This is incorrect as the posted speed limit was 60 kilometres per hour reducing to 50 kilometres per hour. The average operating speed for the road is said to be 80 kilometres per hour. This means that vehicles traveling along this stretch of the Fourth Line average 80 kilometres per hour. This is clearly incorrect. The Inventory Manual for Municipal Roads directs that the average operating speed is to be determined by actually driving the section of road in question. This could not have been done.

[42] The terrain of that section of the Fourth Line covered by Exhibit 40 is said to be flat. Again that is clearly and obviously incorrect. The width of the road is overstated thereby indicating that it is above the minimum standard.

[43] David Bloomer, manager of design and construction for the Town of Oakville in 1992, testified that if any experienced person had reviewed Exhibit 40, the errors and inconsistencies would have been readily apparent. The only conclusion therefore is that no one at the Town of Oakville took the time to review the appraisal sheets in any detail.

 [44] Similarly, on Exhibit 41 the speed limit is said to be 60 kilometres per hour and the average operating speed is 50 kilometres per hour. Not only is this information incorrect, it is inconsistent with the information contained in Exhibit 40.”

These types of comments by Justice Taylor could not have been made if I had not provided him with the copy of the coding manual from which he could identify the errors in the Appraisal Sheets. This identification was not based on my opinion, Justice Taylor made that identification from the contents of the manual itself. Yet Justice Moldaver concluded that I should not have been allowed to provide such crucial evidence to the court.

With respect to Justice Moldaver’s criticism on the cycling issue, he exhibited an overbearing attitude while failing to acknowledge that he had little knowledge or understanding of what took place leading to my testimony at trial. For example in the several years before trial I was attempting to locate an expert who specialized in tandem bicycling. Various contacts with other cycling experts failed to locate such an expert in Ontario. While conducting an internet search in July of 1998, I came across a tandem bicycling users group which identified itself as follows:

“[email protected]” is an international subscription based electronic mailing list for tandem bicycle enthusiasts. Suitable topics include questions and answers related to tandem componentry, riding technique, brands and equipment selection, repairs and upgrades, prices, clubs, tandem anecdotes, rides, rallies and other activities…”

In July of 1998 I e-mailed the contact person noted on that group, Mr. Wade B*******, and, with respect to tandem bicycles, I asked:

“I am in the preliminary stages of searching for performance data which might help to understand the braking and steering capability of the (tandem) bike. Having searched the internet I have come across your name. Can you direct me if any performance data exists. I appreciate the performance may depend largely on the circumstances, rider characteristics and perhaps things I have not thought of yet. But if  no specific  data exists are you aware of any tests that might have been done on tandem bike braking distances?”

In his reply Mr. B******* indicated:

“I myself don’t have such data nor do I know where to get it. I will blind CC this reply including your message to a person of some expertise who might be of help, I have no idea if he would be interested or if his interest would be affected by what “side” you are on in this case, but I will leave that to him, if you don’t hear from him you can assume he was not interested.”

Later in July of 1998 I received the following e-mail reply (excerpts only) from the mystery expert (Mr. John S*******, of Pennsylvania):

“I’m the person to whom Wade B******* referred your inquiry about the tandem accident. I’ve worked as an expert witness in bicycle accidents since 1981, in roughly 130 cases. I’m the author of two books on bicycling, one of which is about tandems and published by Burley…”

In subsequent correspondence this expert provided his curriculum vitae which I found to be more than acceptable for the purposes of the case. In subsequent correspondence to the office of plaintiff counsel in August of 1998 I discussed my difficulties in finding a representative tandem bicycle to use in testing at the site and then I mentioned the following:

“We would suggest that an alternative strategy would be to retain the services of a bicycling expert who can discuss issues of steering and braking capability on a tandem bicycle. We have found such an expert, Mr. John S*******, from Pennsylvania. Although this expert is some distance away most of the information he would require could be provided through documentation. We have enclosed his curriculum vitae for your further review.”

Plaintiff counsel opted not to retain this expert.  This decision was not under my control. Yet the involvement of such an expert, who had extensive knowledge about the performance of tandem bicycles, could have provided crucial evidence that could not be known by either Justice Taylor or Justice Moldaver. Rather than throwing out whatever expert evidence remained, Justice Moldaver should have asked this basic question: Why was more expert evidence not brought forward, not just by plaintiff counsel, but also by defense counsel.

Despite this decision by plaintiff counsel not to retain the expert, performance data on a tandem bicycle was obtained as a result of testing in December, 1999. This testing was accomplished through the assistance of another bicycling expert, Mr. David Chiles, of Waterloo, Ontario. Although this expert’s experience was not directly with tandem bicycles his curriculum vitae with respect to cycling was also impressive. For example he provided details of his experience which were attached to an Appendix of my report and which Justice Moldaver should have been able to review. For example, Mr. Chiles was “the owner of a bicycle specialty retail store in Waterloo”, he was “regularly involved in repairing and building bicycles”, he had “ridden approximately 160,000 kilometres” in his life, he “raced at high levels of competition in both road and off-road events”.

Mr. Chiles adjusted a similar Burley tandem bicycle for the testing as follows:

“The test tandem is a Brodie JoJo, produced in 1999. This bicycle is a multi purpose off-road tandem, designed for trail-riding and road touring. In order to simulate the handling characteristics of the subject tandem, the tires were replaced with heavy road touring tires, the brake system was replaced with standard cantilever brakes matched to the road brake levers, and the handlebars were changed to drop handlebars. In my opinion, the modified test tandem bicycle would share very similar handling and braking characteristics to the subject tandem.”

Again, these comments were included in an Appendix to my report. This information was available for Justice Taylor and Justice Moldaver to consider. When Justice Moldaver indicated that I should not have been allowed to testify at trial with respect to the testing because I did not have any expertise, he was doing so despite the fact that I was reporting on the testing that was developed through the guidance of Mr. Chiles. In hindsight, plaintiff counsel could have brought Mr. Chiles into court to testify but, again, for unknown reasons, this was not done.

Whether it was the roadway issues or the cycling issues, Justice Moldaver’s decision that Justice Taylor was wrong in allowing the evidence to be introduced must be understood to be illogical.  How could Justice Taylor conduct a reasonable assessment of this matter without the essential, objective evidence that was provided? How would Justice Taylor come to know about the roadway problems without the technical manuals and data that were provided to him from my report and testimony? The withholding of that evidence would clearly favour the Municipality as there would be no evidence to support the claims made by the plaintiff. Would this not create a bias in favour of the defendant Municipality?

Rather than removing the only expert witness at trial, Justice Moldaver should have questioned why it was that just one expert witness was being presented to the court. This was a case that required the assistance of experts who were familiar with the technical details of roadway and bicycle safety. Yet the defense did not present an expert witness to testify. The fact is, unless an expert witness was willing to perjure oneself, such an expert would have had to acknowledge the basic facts that I presented at trial. This would have been of no help to the defense as it would only amplify the concerns that I presented. However plaintiff counsel also played a damaging role by failing to involve a second or third expert witness who could collaborate what I had presented. Leaving me as the only expert presenting the expert evidence it was possible for Justice Moldaver to sidestep the correctness of my testimony without having to explain why the testimony of additional experts should also be excluded.

Additional Testing

To assess the opinions expressed by Justice Moldaver a variety of testing was conducted at several sites containing down-slopes. Initial testing was conducted at the site of a moderately steep downgrade located on Meadlowlily Road in London, Ontario. Much like the site of the fatal tandem bicycle collision at the Glenorchy Bridge of the Fourth Line, the Meadowlily site also contained an old bridge, as shown in the photo below. This bridge was not destroyed but was refurbished and now provides a pleasant path dedicated to pedestrians and cyclists. Motorized vehicles still drive along Meadowlily Road to a nature trail near the south end of the bridge but there is no longer passage of motorized traffic over the Meadowlily bridge.

Looking south from the bridge, as shown in the photos below, there is a significant slope of the road.

Looking further south, the photo below shows the view partly up the slope of the road. The site of the testing is located just beyond the left curve in the background.

The photo below is a view looking further south and shows the area of the roadway containing a painted “400” metre marker on the pavement. This is where the testing ended. Most of the documented tests involved travels from a painted “Zero” marker at the top of the slope in the distant background which is not visible in this view.

Turning around, the photo below shows the other end of the testing site at the top of the slope. A  painted red line is visible in the centre foreground. This was the “Zero” location where the testing began.

The total distance from the “Zero” marker to the south end of the Meadowlily bridge is about 850 metres. The testing was conducted in the first 400 metres or approximately along the top half of the slope.

A 21-speed, Trek, hybrid bicycle was used in the majority of the testing. Two passenger cars were also used as comparisons to the performance of the Trek bicycle. Initial testing involved coasting the motor vehicles and bike, from a stop,  under a variety of conditions. Their speeds were documented through videotaping of the vehicle and bike speedometers as well as videotaping roadway markers that were created at 25 metre increments along the travel path.

The table below indicates the measurements of the down-slope at the Meadowlily site.

As indicated in the table above, the Meadowlily site contained a relatively shallow down slope in the first 100 metres. It then commenced a steeper grade which reached over 7% at about 200 to 225 metres before leveling off slightly to about 5 % in the last 50 metres.

In comparison, the table below indicates the down-slope measurements from the Glenorchy site where the fatal tandem bicycle collision occurred. These measurements represent a distance of only 180 metres or less than half the distance of the measurements at the Meadlowlily site. This 180 metres represents the distance of roadway that was visible to the witness, Fredrick Marshall, as he observed the tandem bicycle appearing around a curve and descending towards the bailey bridge and escarpment wall. The “zero” end of these measurements is at the south end of the small bailey bridge, or the end of the bridge closest to the bicycle riders.

The figure below shows a graphic display of the down-slope of the two sites over a distance of 200 metres. The slope shown for the Glenorchy site is for the 180 metre distance approaching northward toward the bridge near the escarpment wall. This is the same direction travelled by the Johnson tandem bicycle. The slope of the Meadowlily site shown in the figure is for the second, 200-metre segment where the down slope increased to an average of 6.24%. Even so, the down slope of 6.24 % is substantially lower that the average of 11.8 % existing at the Glenorchy site. It is a matter of common sense therefore that coasting down the much steeper slope of the Glenorchy site should result in higher speeds than what should be expected on the Meadowlily site.

The chart below shows the results of the coasting tests at the Meadowlily site. These are averages, generally of 3 to 4 tests each. The final speeds of the two cars (Lacrosse and Allure) were substantially higher than the final speeds of the Trek bicycle tests. On average the final speed of the Allure was 60.8 km/h while the final speed of the Lacrosse was 57.0 km/h. However a driver of a passenger car would not typically be descending a steep slope in neutral but rather in gear and therefore the driver could select a lower gear that would control the rate of the descent independent of any braking. It is an important difference from a bicycle which cannot be placed in any such lower gear. Active braking is the only method of controlling the speed of a bicycle on such a descent.

The chart below has separated the Trek bike coasting tests from the car tests. Several experiments during the tests caused slight changes in the speed results. For example, coasting the 400 metres in a normal, upright position resulted in a final, average speed of 41.2 km/h. When the rider’s position was changed so that he leaned his upper torso forward toward the handlebars the average, final speed was increased to 42.9 km/h. In the cycling world this is not surprising. Anyone who has ridden a bicycle for any extended time or who has watched various cycle racing competitions would recognize that the character of the frontal wall of the bike and body of the rider has an effect on the aerodynamic drag. Aerodynamic drag is the force that is applied upon on the combined mass of the cyclist and bike by wind resistance. In the recreational world of bicycling the simple leaning of the upper torso, without any further adjustments, is enough to demonstrate that principle.

Another experiment involved having the rider wear a knapsack filled with 32 pounds of ballast. Without that weight the average, final speed of the bicycle was 40.8 km/h. With the weighted knapsack the average final speed was 43.4 km/h. Again, this is also not surprising. Beyond additional factors that may be involved, and at the relatively low speeds, the aerodynamic drag is a function of the characteristics of the frontal “wall” of the bike and rider. The drag does not increase when the downward force is increased by making the bike/rider heavier. However the addition of the ballast increases the force that accelerates the rider down the slope. This is just a reflection of the observed actions of racers in a peloton who hide behind the leading rider to avoid the wind resistance which would ordinarily cause them to pedal faster or harder to maintain their speed.

Additional bicycle testing was performed when it was discovered that the rear wheel of the cycle contained a slight wobble because there was an undiscovered fracture in the axle. This wobble caused the rear tire to intermittently rub against the brake pad. The rear wheel was replaced and additional testing was conducted to determine the extent to which the cycle’s speed was affected by the defect. The graphic below shows the results while varying the rider’s position of the upper torso as per previously described testing.

With the repair of the rear wheel, and with the rider’s upper torso in an upright position, the average final speed of the cycle was 42.5 km/h or about 1.3 km/h faster than the original tests with the defective rear wheel. Similarly, when the rider’s upper torso was positioned in a forward-leaning orientation the average final speed of the cycle was 44.5 km/h or about 1.6 km/h faster than with the tests with the defective wheel. These results provide some indication of the effect that a minor defect in a wheel might have on the speed of a recreational bicycle. It is possible that many recreational bicycles might be ridden with the existence of such a defect without much concern or detection.

Summarizing the bicycle testing that has been described so far it can be seen that the speed of the bicycle was increased by either leaning forward to reduce the aerodynamic drag, or by applying a greater weight to the combined mass of the bike/rider. It can also be observed that, even though minor defects may exist that are not directly obvious, the speed of a recreational bicycle, operated at an expected speed range, is only marginally affected by that defect.

Further work was performed at the Meadowlily site. Video cameras were set up at intervals that would document the increasing speed of bicycle  riders as they rode along the down slope over the previously-mentioned 400 metres. The speed of cyclists travelling up the slope was also documented. Additional cameras were set up pointing along the length of the road so that the pedaling motions of the riders could be monitored.

The table below shows the results of observations of 20 cyclists who travelled northbound on the down slope of the Meadowlily site. The table shows the average speed of the cyclists as they passed through the 50 metre segment of the down slope between the 350 and 400 metre markers.

The average speed of these riders would have been higher except that a single, 66-year-old, male rider conducted three practice runs on the slope at rather slow speeds. During a discussion with the experimenter this rider indicated that he had fractured his arm during a cycling accident a month earlier and thus he was being very cautious on the downgrade so he would not fall. This rider’s data is in Observations 4, 6 and 7 of September 15th. It can be seen that he produced the three lowest speeds (30.66, 30.35 and 31.75 km/h). Without his data the average of the remaining 17 riders would have been 46.60 km/h.

Only one rider was observed to be conducting any active pedalling while travelling on the down-slope and that was a young male, Observation #6, of August 31st. He reached an average speed of 62 km/h between the 350 and 400 metre markers. Without his data the average speed of the remaining 19 riders would have been 43.28 km/h.

In contrast the average speed of cyclists travelling up the slope was, not surprisingly, much slower. In the August 31st testing the average speed of five cyclists travelling the full 400 metres was 8.6 km/h. Two of the five riders actually dismounted partway up the slope and walked with their bicycle beside them. Similarly, in the September 15th testing the average speed of eight cyclists riding the up-slope was 13.09 km/h. Again the single, 66-year-old male skewed the September 15th results because the average speed of his three travels on the up-slope was 15.52,16.09 and 14.26 km/h which is higher than the average. Without this person’s data the average speed of the five remaining was 11.31 km/h. It was obvious that, although this elderly rider was injured he was likely in better physical condition that the others. Although he was cautious in descending the downgrade his higher speed travelling up the grade revealed that he was likely an experienced rider  with a high level of ability considering his age and injury.

To support my comments made earlier about the difference between bicycle and motor vehicle motions on a down-slope, data is also available for motor vehicle speeds obtained from the videotaping  sessions of August 31 and September 15, 2018. The table below shows the observed average speed of motor vehicles travelling northbound (down the slope) and southbound (up the slope) at the Meadowlily site.

Clearly, the data shows that there is a large and expected difference in the speed of motor vehicles versus bicycles on a sloped roadway. Bicyclist speeds were increased while travelling on the down-slope because these riders allowed their bikes to coast down the slope. This is not an empty comment. This was verified by examining the videotape of the actions of the bicyclists as they travelled down the slope. And bicyclist speeds were greatly reduced while travelling up the slope.

In contrast, the speed of motor vehicles was only slightly increased while travelling down the slope. The data also show that the average speed of motor vehicles travelling up the slope was slightly higher than travelling down the slope and that the speed appeared to increase toward the top of the slope. While such comments are made we need to recognize that these results are based on a small number of observations and it would be prudent not to make such fine distinctions without further testing.

If this testing is not enough to prove the point, the data from cycling tests from two additional sites is also available. Both of these sites are located along a City of London Multi-Use path which is designated exclusively for pedestrians and cyclists. A site located south of Trafalgar Road in London, Ontario (the “Trafalgar Bike Path”) was recently constructed in the spring of 2018. It contains  a shorter downgrade than the Meadowlily site. The second site (the “Richmond Bike Path”), also in London, Ontario, is older and contains an even shorter downgrade than either the Meadowlily or the Trafalgar sites. On each of the two sites a set of tests was completed similar to what was done on the Meadowlily site. Thus coasting tests were performed with the Trek bicycle to establish the speed that would be attained from simply allowing the bike to coast down the slope. Following this video cameras were set up and independent cyclists were videotaped travelling down the slopes. The speed of these cyclists was documented in the same manner as the Meadowlily site. The following discussion will provide descriptions of each site along with the results of the testing.

The Trafalgar Bike Path Site

The photo below shows a  view looking south toward the top of the slope of the Trafalgar site. The tripods and cameras shown in the view illustrate how the speed of cyclists was captured while travelling up and down the slope.

The photo below shows a typical scenario of pedestrian interference that was more prevalent at the Trafalgar site than at the Meadowlily and Richmond sites. This is the reason why the average speed of independent cyclists at the Trafalgar site was slightly lower than the coasting tests.

The table below shows the measured slope of the Trafalgar Bike Path site.

Coasting speeds were documented on August 24 and 25, 2018. Results of these tests are shown in the next two tables.

The table below provides the results from observations of independent cyclists who were videotaped travelling along the Trafalgar site. The noted speeds are in km/h.

The Richmond Bike Path Site

The photo below shows a view looking west along the down slope of the Richmond site. Markers can be seen painted on the path and these were used during analysis of the videotape to determine the average speed of independent cyclists.

The photo below shows a view looking in the opposite direction (eastward) along the Richmond site. It can be seen that the down slope at this site is substantially shorter than at the other two sites.

The photo below shows an example of a westbound cyclist approaching the “110 metre” marker of the Richmond site. These markers were used in the video analysis to determine the average speed of the cyclists.

The table below shows the slope measurements taken at the Richmond site.

The table below shows the results of the coasting tests performed at the Richmond site. The noted speeds are in km/h.

The table below shows the results of the speed of independent cyclists travelling along the down slope of the Richmond site.

Clearly, there has been enough testing reported in this article to demonstrate to an unbiased reader that recreational cyclists will allow their cycles to coast along downgrades to a speed primarily dictated by the steepness or length of the slope and the law of gravity.

Returning to the issue of Justice Moldaver’s decision, the Glenorchy site was examined for its down-slope in the distance before the Johnson tandem bicycle could have been observed by the witness Marshall.  While at the site I had estimated that Marshall could have been seen as far as 180 metres up the slope from the south end of the bridge. I requested that the professional surveyor also determine that distance and he indicated on the survey that the bridge became visible from a distance of about 141 metres south of the bridge. Because the survey was completed in September, 1997 the growth of the foliage at the sides of the road would have an effect in reducing the line of sight that existed at the time of the collision which was 5 five years earlier. I may have made compensations for that vegetation growth in my estimate conducted at the site. So due to foliage differences and other imprecision in the definition of this distance the difference in these values should be understandable.

The total distance that was surveyed southward from the bridge was about 514 metres. Assuming that the surveyor’s data was accurate, and we subtract the 141 metres from this total, there was a remaining distance of about 373 metres over which there is precise information about the slope of the road leading up to the point where the witness Marshall was capable of observing the tandem bike. Analysis of the data contained in the survey showed that the road dropped in elevation by about 17.44 metres in that distance of 373 metres and this leads to an average down-slope of 4.67%. Comparing this data to the Meadowlily site, where the average down-slope over a distance of 400 metres was 4.99 %, the two sites are similar. However it needs to be emphasized that we are not discussing the much steeper down-slope of the Glenorchy site closer to the bridge. We are discussing the distance before Marshall was able to detect the tandem bicycle which is between 514 and 141 metres south of the bridge.

The testing at the Meadowlily site  now becomes relevant because it demonstrates how the Johnson tandem bicycle would likely accelerate before it reached the location where it could be detected by the witness Marshall.

So if the Johnson’s bicycle was stopped at a distance of 514 metres south of the Glenorchy bridge and if they simply allowed the cycle to coast forward, the speed of the tandem bicycle should have been comparable to the speed of the Trek bicycle on the Meadowlily site. It should also have been comparable to the speed of the other cyclists who were observed travelling down the Meadowlily slope. Furthermore we would expect the tandem bicycle to attain a speed that was higher than the Trek hybrid bicycle or any of the other observed bicycles at the Meadowlily site because the additional weight of the tandem bike and second rider would (much like the knapsack tests) cause it to be protected from the aerodynamic drag (much like the riders in the peloton of a cycling race). So it would be logical that a tandem bicycle would be travelling quicker than 45 km/h on the Glenorchy site, without any active pedalling, even before the cycle was capable of being detected by the witness Marshall.

Returning to the comments made in Justice Moldaver’s decision, he noted that the witness Marshall heard someone yell then:

“Moments later, he saw a couple coming down the hill on a tandem bicycle. When he first observed them, they were approximately 150 feet (45 metres) south of the bridge.

Mr. Marshall’s first thought when he saw the couple was that they were “going way too fast”. When asked what the lead rider was doing when he first observed him, Mr. Marshall stated that “his head was down … he was looking more ahead of the bicycle than in the distance” and he was “alternately pedaling and coasting.

Similarly, the trial judge failed to consider much of Mr. Marshall’s evidence on the subject. Mr. Marshall, it will be recalled, testified that when he first saw the Johnsons coming down the hill, he thought they were “going way too fast”. He also testified that the lead rider had his head down and he was “alternately pedaling and coasting”. That hardly fits the description of someone in trouble, experiencing a loss of control. Rather, it suggests someone attempting to maintain or increase speed – a speed that in this case was already excessive in the circumstances.“

These comments by Justice Moldaver were based on what Marshall testified at trial 16 years after the collision. If Justice Moldaver was capable of reviewing the police statement provided by Marshall on November 22, 1992 rather than just relying on his testimony at trial he would have found differences in the evidence. In that original statement taken by investigating police  Marshall’s description was as follows:

“I was about to light a cigarette when I heard someone yell. It sounded like someone yelled yahoo. I looked up the hill south of me and saw a tandem bicycle coming down the hill. It was a blue bike with a baby carrier on the back. There was a man in the front and a woman in the back. They were both wearing cycling helmets. The bike was going very fast, approximately 45 km/h. They were both pedaling until about halfway down the hill. They started to coast until they got onto the bridge. I heard the man yell “Oh Shit” and applied the brakes very hard. The rear wheel locked and skidded on the wooden bridge. There was a squealing or skidding noise. The rear tire was fish-tailing out to the left. The bike hit a bump as it left the bridge and went airborne. It impacted the cliff sideways. The wheels hit about 3 feet up the clilff and slid back down after impact.”

One of the critical differences is that, in the original police statement, Marshall indicated that the pedaling took place only up to halfway down the hill. If the visible portion of “the hill” was 180 metres from the bridge then that meant that the Johnson’s stopped pedaling at about 90 metres from the bridge. If the visible distance was 141 metres as suggested by the professional survey the Johnson’s would have stopped pedalling at about 70 metres from the bridge. In either case, the pedalling would have stopped well before they reached the point where the loss of control would have commenced. When Justice Moldaver states that this pedaling “hardly fits the description of someone in trouble experiencing a loss of control” he has clearly misrepresented the timing of when the pedaling occurred and when the loss-of-control would have commenced. It should not have taken much thought by Justice Moldaver to recognize that his wording was inappropriate. So why did he insert this comment?

Justice Moldaver further indicated that this pedaling was indicative of “someone attempting to maintain or increase speed – a speed that in this case was already excessive in the circumstances”. However at higher speeds a typical recreational bike needs to be pedaled quite quickly in order to apply any additional force to the bike’s drive wheel. A person who is familiar with bicycling at higher speeds would understand this concept.

As an example further testing was performed at the Meadowlily site. After coasting for the first 300 metres the hybrid bike reached a speed close to 40 km/h. At this point the rider began to pedal quickly for the remaining 100 metre distance. This simulated the observation made by the witness Marshall who indicated alternating pedaling and coasting was occurring when he first observed the tandem bike travelling about 45 km/h. Three tests were performed with fast and steady pedaling. Between each of these three tests an additional three tests were performed without any pedaling but simply coasting down the full 400 metres. The results are shown in the graphic below.

The rate of pedaling per minute, called cadence, was 93, 86 and 108 for each of the three tests. The literature indicates that typical rates of cadence for recreational riders would be in the range of 60 to 80 revolutions per minute. The final average speed for the three tests with pedaling was 47.4 km/h whereas without pedaling the final average speed was 45.2 km/h. This difference in speed was achieved after pedaling for about 7.5 seconds between the 300 and 400 metre markers. It is noteworthy that, for the two tests at a cadence of 93 and 86, the increase in speed was only 1.2 and 1.5 km/h. It was only the final test, at a cadence of 108 revolutions per minute, where there was a meaningful increase in speed to 49.2 km/h and therefore this brought the average increase in final speed to 2.2 km/h for the three tests.

Examination of the actual tandem cycle ridden by the Johnsons would have helped to clarify if there was anything significantly different in its gearing that could suggest an increased ability to gain speed versus the hybrid bicycle used at the Meadowlily site testing.

The photo below shows the Burley Samba tandem bike taken from a Burley promotional brochure printed in 1998.

The promotional brochure indicated that the Burley Samba tandem cycle weighed 39.8 pounds. It had a 3-ring chainset with 52-42-28 teeth. The captain’s (front rider’s) chainring of the Samba contained 42 teeth. That chainring is connected to the main, combined-3-chainrings (located beneath the rear rider’s seat) by a timing chain which physically connects the pedaling motions of the two riders.  The Samba’s highest gear would occur when the chain was on the large, 52-tooth chainring while also attached over the smallest rear sprocket which has 11 teeth. With the lead rider completing one full pedaling revolution it creates an identical, one full revolution of the large 52-tooth chainring.

In comparison the Trek bike had a 48-tooth chainring with a minimum of 14-tooth ring at the rear sprocket. Thus a maximum gear ratio of the Trek would be substantially less than the Samba tandem. So it is possible that the Johnson’s tandem bicycle’s speed could have been increased from 45 km/h if there was sufficient pedalling applied by the rider. But was there sufficient pedalling applied as assumed by Justice Moldaver?

A standard 700 mm (“700C”) wheel includes the unloaded height of the combined rim and tire. It’s circumference (pi x d) would be 2.20 metres. Thus, theoretically, on level ground and without slippage, one would expect that one rotation of such a rear wheel would result in a travel distance of 2.2 metres. The highest gear of the tandem bike has a ratio of 4.73 obtained from the combination of using the largest front chainring (52 teeth) and the smallest sprocket at the rear (11 teeth). Thus, for every full revolution of the pedals the rear wheel rotates 4.73 times. When we multiply this 4.73 by the circumference of the wheel we determine how many metres the bike will travel in a single revolution of the pedals which is 10.4 metres. If the rider of the tandem bike has a cadence of 60 revolutions per minute it means the pedals are rotated once every second and therefore, without other forces, the bike will move forward at the rate of 10.4 metres per second. Multiplying this by 3.6 gives you the speed in kilometres per hour which is 37.4 km/h.

Thus, during downhill coasting, if the tandem bike is travelling at 37.4 km/h or higher, a pedaling rate (cadence) of 60 per minute in the highest gear will not do anything to increase the cycle’s speed. Now, how does this information match with evidence of the witness Marshall and the conclusions of Justice Moldaver?

Marshall reported that the Johnson tandem cycle was travelling at 45 km/h. What pedaling speed would be required so that the pedaling would have some effect on increasing or maintaining the speed of the cycle above 45 km/h? If we increased the pedaling speed from 60 to 90 we would be adding an additional 5.2 metres to the above-noted 10.4 meters of travel distance and we would say that the pedaling could have an effect on the cycle for any speeds of 15.6 metres per second or lower. Translated to km/h the increased rate of pedaling would have an effect if the cycle was travelling at 56.16 km/h or slower. So, yes, in the case of the riders maintaining a constant cadence of 90 this would contribute to the cycle’s speed of 45 km/h. But that is not what Mr. Marshall observed.

Mr. Marshall indicated that, when he first observed the Johnsons they were pedaling and then they stopped pedalling. How can that be interpreted to mean that they were constantly pedaling at the rate of 90 rotations per minute? As average riders are typically observed pedaling at a rate of 60 to 80, the best characterization of the pedaling observed by Marshall would be to conclude that this was the rate observed by Marshall. But clearly there is no certainty or science to this. No one can know what their rate of pedalling was when they were first seen. But if they were attempting to gain speed would it not be logical that they would have been doing so long before they were observed by Marshall? They had several hundred metres of down hill travel where they could have increased their speed to an incredible level before they were seen. Yet they were only travelling 45 km/h, and that was the only evidence available to Justice Moldaver.

By performing some calculations it becomes known that the average slope between 180 metres and 60 metres south of the bridge was 12.5%. Similar calculations show that the average slope in the last 60 metres before reaching the bridge was 12.8%. These averages are used to develop rates of acceleration when calculating how much speed would be gained in travelling those distances. Complications occur in the standard formula used by accident reconstructionists when evaluating slopes that are greater than 10 percent. Therefore, for simplification, we can assume that the slope was only 10% for the two distances. Obviously this would produce a conservative speed estimate. For the moment these calculations can be performed in a vacuum such that the aerodynamic drag and rolling resistance of the tires that would slow the bike is not included. So there would be a decrease in speed if those factors were taken into account.

When employing the above-noted simplifications we can evaluate the information of the the witness Marshall and the conclusions of Justice Moldaver. From the initial speed of 45 km/h, which was observed by Marshall at 180 metres south  of the bridge, without pedalling and simply considering the effect of gravity, the 10% downgrade would result in a final speed of about 71.2 km/h by the time the tandem bicycle reached the 60 metres location. Next, from this initial speed of 71.2 km/h, the speed of the tandem bicycle would be increased to about 81.2 km/h by the time it reached the south end of the bridge. I emphasize, this speed is attained from the earth’s gravitational pull. It would be expected to occur from simple coasting along the down grade without any pedalling. Even without further analysis these results on their own should have drawn Justice Moldaver’s attention if indeed he was capable of conducting this analysis before he reported his conclusions in his decision.

Aerodynamic drag and rolling resistance of a bicycle have been calculated to a great precision by various professionals involved in professional cycling however these values are far distant from the large inefficiencies that exist in the clothing, equipment, positioning, etc. that occur with cycling in a recreational environment. However professional calculations are unnecessary because we can calculate those recreational deceleration  values from the testing we have described at the three sites (Meadowlily, Trafalgar and Richmond) where our testing was conducted.

At the Meadowlily site the average slope over the 400 meters of coasting was shown to be 4.99 %. Using that average acceleration factor in the standard speed calculation formula would yield an expected final speed of about 71.2km/h whereas the actual speed attained during coasting was only about 45 km/h. Thus the actual speed is only about 63.2 % of what would be expected in a vacuum. Similar calculations for the two other sites indicated efficiencies of 80.3% (Trafalgar) and 79.5% (Richmond).

Thus correcting our calculations for aerodynamic drag and rolling resistance would reduce the expected calculated speeds at the Glenorchy site by something in the order of 63 to 80% of the expected speed in a vacuum. This would reduce the calculated speed at the distance of 180 to 60 metres from 71.2 to approximately 45 to 57 km/h, or averaged to about 51 km/h. And from 60 metres to the bridge the speed would be reduced from 81.2 km.h to 51.2 to 65.0 km/h, or averaged to about 58.1 km/h.

Thus, to summarize, even when using a reduced average slope of only 10%, and including the effects of aerodynamic drag and rolling resistance, the final speed of a bicycle which is allowed to coast from an initial speed of 45 km/h at 180 metres would be about 58 km/h by the time that bicycle reached the south edge of the Glenorchy bridge. But the actual speed of the bicycle would have to be faster than 58 km/h because the slope was not 10% but was an average of over 12%. And these results are based on testing with a hybrid bicycle whereas the speed of a tandem bike would be higher. Yet the only evidence available to Justice Moldaver is from the witness Marshall who claimed that the speed of the tandem bicycle was only about 40 km/h as it reached the bridge.

How can Justice Moldaver be correct in this conclusion that this pedaling followed by coasting was indicative that the Johnson’s were attempting to maintain or increase their speed? This conclusion is illogical. It is illogical because the observed 45 km/h speed is what would have been expected if the cyclists had been coasting up to the location where they were first observed by Marshall. And coasting alone, from the 180 metre location, over a shallower slope, using a slower bicycle, would achieve a final speed of over 58 km/h. At a minimum an unbiased observer would conclude that there was insufficient evidence to support the conclusion that the speed of the Johnsons’ tandem bicycle was faster than what should be expected or that it represented an unreasonable lack of judgment on their part. Yet the choice of words used by Justice Moldaver in providing his conclusion on this point was not one indicating that he was unsure of what he stated, rather it was authoritative and unquestionable. He rejected the thoughtful analysis of the trial judge. He rejected the evidence of the only expert witness who testified at trial and there was no other expert available. Thus he had the obligation to research the subject matter before he made his judgment. Yet it is clear from his comments that he did not. Maintaining these views Justice Moldaver has re-written the law of gravity which cannot be re-written.

Referring back to Justice Moldaver’s written decision there is another problem with the following conclusion:

“Taken as a whole, the evidence clearly establishes that Mr. Johnson knew or should have known of the embankment and the sharp right hand turn long before he arrived at the bridge. Alternatively, if he did not, it was because he was not keeping a proper lookout.”

Constable Michalski was deemed to be an expert cyclist and he was instructed to conduct testing at the site, as described in the police Technical Collision report:

“This investigator attended the scene on the 15 September, 1992 for the purposes of conducting speed tests with a bicycle. The road and weather conditions were the same as at the time of the collision. P.C. Michalski, Community Officer, Bronte attended with his department bicycle. He was requested to operate the single person bicycle on the same rout as the deceased at a high rate of speed as the deceased was observed operating his bike. P.C. Michalski was clocked on radar going down the grade at 51 km/hr. Much of the control over the bike was lost. It developed a front wheel wobble and was impossible  to turn. It took all of P.C. Michalski’s efforts to safely stop the bike.”

Why did an expert cyclist such as Constable Michalski travel down the slope at 51 km/h and subsequently almost lose control of his bicycle? If he actually crashed would Justice Moldaver claim that this was because he was not keeping a proper lookout for the escarpment wall? But surely Constable Michalski knew that there had been a fatal collision of a cycle at this site before he commenced his test. Why would he proceed to perform a test at 51 km/h which almost resulted in the loss-of-control of his bike and the likely significant injury to himself, or worse? Was it that he was not keeping a proper lookout for the escarpment wall or was it because he was surprised to find that the bumps on the road surface placed his bike into a speed wobble? Common sense would lead one to understand that Constable Michalski’s expectations were violated and he was placed in considerable danger, even though he was forewarned that a fatal collision with a cycle had just occurred. It was not the escarpment wall that was placing Constable Michalski in danger, it was the bumps in the road surface that he misjudged. It was a misjudgment made by an experienced cyclist who was aware that his misjudgment could lead to dire consequences.

After knowing what Constable Michalski experienced how could Justice Moldaver claim that Mr. Johnson was not keeping a proper lookout for the escarpment wall and this is why he crashed? The reference by Justice Moldaver to the escarpment wall is commonly known as a “red herring”. Something that is flashed before an observer’s eyes to divert attention from the actual facts that needed to be known. It was the bumps in the road that were the danger that Mr. Johnson had to be aware of not the escarpment wall. It was the bumps of the road surface and their effect on a cycle that could not be appreciated until it was too late and that was the crucial  issue.

Constable Michalski failed to mention that during testing on an uneven surface of a steep down-slope the speed wobble is not the only safety concern. At lower speeds, before a speed wobble is developed, the rider will experience profound vibrations at the handle bars and this makes it difficult to control steering and braking.

This is not an empty comment made without experience. Such vibrations have been experienced on a number of occasions before and after my testimony at the Johnson trial. For example such a fact was observed during previous testing with the Trek hybrid cycle on the Meadowlily site on July 25, 2014. At that time the road surface was old and bumpy and was subsequently re-surfaced in the summer of 2017. The photo below shows a frame taken from the videotaped test showing the Meadowlily site at the top of the slope on the date of the test.

The photo below is another frame from the video showing the Trek computer indicating a distance of 8.1 km at the beginning of the test.

The frame below shows the portion of the video where the Trek cycle has reached a speed of 20 km/h. The cracks in the aged road surface can be seen in the background.

The frame shown below also shows the cycle at 42.2 km/h and the background shows the poor condition of the road surface.

Finally the frame below shows that the maximum speed of the Trek cycle was 47.0 km/h during the test.

It is not possible to demonstrate the extent of vibration via these still frames.  One needs to review the videotape to appreciate this finding. However I confirm that these vibrations were substantial. The bumps in the surface of the Fourth Line Glenorchy site were visible in the police photographs that I reviewed prior to writing my report and prior to my testimony at the Johnson trial. I knew from my prior cycling experience that the bumps I saw would have had a major effect on Mr. Johnson’s ability to brake and to maintain control of the tandem bicycle. This knowledge has been subsequently confirmed in my further bicycling experience since the Johnson trial. This is not an individual, idiosyncratic observation. I have spoken to a number of cyclists on this issue who have supported this observation. Clearly, anyone who has ridden a bicycle over any such conditions would report the same finding.

Justice Moldaver made the following observation of the argument presented by the defendant Municipality with respect to my testimony:

“Oakville’s chief complaint about Mr. Gorski is that he offered opinion evidence on two critical matters that were beyond the realm of his expertise but which the trial judge accepted in finding Oakville liable. The two opinions are identified by Oakville as follows: (1) The accident was caused not by excessive speed on the part of the Johnson bicycle but rather by lack of an ability to stop due to the difficulty of applying heavy braking in the bumps on the roadway. (2) That Mr. Johnson, upon encountering bumps in the roadway, would have been looking down at the bumps with his attention drawn away from the other problems – the narrow bridge and beyond that the escarpment.”

Justice Moldaver accepted the Municipality’s view.

The comments I made in my testimony were not beyond the realm of my expertise. While I confirmed I was not a bicycling expert, I was qualified to make those comments because of the experience I gained from bicycling under similar conditions. I was also qualified to make those comments from the substantial years of my work in accident reconstruction and the previous bicycle collision assignments that I evaluated. While the previous collision assignments involved collisions of bicycles with motor vehicles, a bicycle’s performance or the rider’s performance does not change simply because it was struck by a certain object, or that it struck a certain object.

The ability of a cyclist to apply substantial braking at higher speed over an uneven surface is complicated and far more precarious than what would be required of the driver of a motor vehicle. For example, a cyclist does not just have one braking system, but two independent systems, one for each wheel. Heavy braking cannot be done blindly without regard for how much braking force is applied to each wheel. All modern motor vehicles have been equipped with proportioning valves that automatically prevent an inappropriate level of braking force to different wheels. In more recent times this proportioning is achieved electronically via computerized modules. A typical bicycle is not equipped with anything to control that braking force and it requires the rider’s attention to modulate the braking force at the braking lever at each hand grip. When a bicycle is travelling at higher speed the uneven road surface causes forces that want to push the bicycle upward as well as sideways. The effects of these forces have to be countered by the rider’s focus on what is happening to the bicycle and to counter those forces with steering adjustments while also attempting to modulate the braking force to reduce speed. The absolutely essential point that Justice Moldaver failed to understand is that the rider must also anticipate what forces are likely to occur in the near future by also focusing on the road just ahead of the bicycle so that a path can be taken in between the worst portions of the road surface. When recognizing that a larger bump or depression will be struck the rider would be foolhardy to maintain the same level of braking force without letting off of the braking because this would most likely lead to a spilling of the rider onto the road. At this same time the rider must grasp the handlebar more firmly in preparation for the harder impact. The rider must also adjust his body with respect to the bicycle and make certain that the impacts do not put him out of position or that the rider’s foot does not slip off of a pedal. Sometimes it is necessary for the rider to lift himself out of the saddle and rely solely on the grip at the handebars and foot pedals in order to reduce the shock onto the body that is transmitted from a rigid bicycle’s impact of a roadway irregularity. The Samba tandem bicycle was a rigid body that was not equipped with any shock absorbers that might shield  riders from the force of the road’s bumps. These are continual adjustments of braking, steering and body position that need to be made in rapid succession. They cannot be done while staring 200 metres up the road to something that is of less immediate concern. This procedure cannot be done with a motor vehicle because of its width, and other differences. There is a vast difference between the small contact patch of a bicycle tire and that of a motor vehicle. There is also a vast difference because motor vehicles attain more stability because they are equipped with at least four tires. All these differences and unique characteristics of a bicycle matter.

Justice Moldaver’s conclusion that “the evidence establishes that Mr. Johnson was traveling too fast for the road conditions” is one that is often used in expert’s reports when the expert fails to acknowledge that it is the undetectable road conditions that cause the speed to be too fast. Anyone who has ridden a bicycle at higher speed on a downgrade that contains an uneven road surface would know precisely why a rider would be looking down toward the road surface just ahead of the bicycle. The rider is focused on maintaining directional control and speed of the bicycle. Because Justice Moldaver fails to recognize this basic fact illustrates his understanding is not consistent with anyone who has familiarity with riding a bicycle at higher speeds.

The Incredible Eyewitness

History has demonstrated the need to be cautious about interpretation of human behavior.  The incredible execution of the Witches of Salem in Massachusetts in 1692 is an example of how a court with unquestionable authority developed illogical, unsupportable conclusions that led to the execution of almost two dozen innocent individuals.

Through the diagnosis of a “doctor” the strange behaviour of young children in Salem was attributed to bewitchment. A trial was held of a certain number of accused “witches”. Not much scientific evidence was deemed to be important as it was obvious that the children were bewitched just by observing their strange behavior. “Spectral Evidence” was judged by the court of the day to be proof of a witch’s guilt. Spectral evidence occurred when the afflicted person was able to see the apparition or the shape of the person who bewitched them. The court of the day determined that this “spectral” image of the accused could not be displayed to the afflicted person unless the accused gave the Devil permission to display that image to the afflicted person. This point needs to be repeated and amplified. The judges of the court determined the Devil was involved in a contract with the accused. The court found that the accused gave permission to the Devil to allow the accused’s image to be displayed to the victim. If the victim could see the image of the accused then it was clear that the accused had formed a contract with the Devil.

This reasoning was not developed by beings who were a sub-species of the human race. These conclusions were made  by well-respected judges in the communities surrounding Salem. These judges likely possessed no less intellect than persons of the present day. What they also possessed was the ultimate and unchallenged authority to put persons to death. Fearing a death penalty some of the accused confessed to being witches and then implicated others. Eventually 19 innocent persons were found guilty of witchcraft and were executed. These executions occurred because the judges of the court failed to acknowledge that they did not have a firm grasp of the issue before them. Yet the authority given to them was unchallenged.

In these modern days of enlightenment  it is hoped that the vast majority of the current judicial system would admit that the Devil does not make the image of guilty persons become displayed to the view of the victim. Yet similar supernatural abilities of eye witnesses continue to be accepted in the modern courtroom without verification and without accountability.

Proceeding further in time, early observers of human behavior such as the psychiatrist Sigmund Freud provided many examples of the complexity of human hysteria and neurosis. I read many of Freud’s works before entering into formal studies of Psychology. Freud developed a complex theory of the unconscious and detailed the mental warfare between the id, superego and ego. Whatever criticisms may exist of his methods at least Freud was a deep observer of his patients’ behaviors. Freud’s Psychoanalysis helped to bring forth the understanding that we needed to follow a “scientific method” in this new science that eventually became Psychology. Other branches of psychological study were also developing along side of Psychoanalysis. Pavlov’s conditioning experiments and the eventual Behaviorism movement were also attempts at such scientific methods.

Shortly after commencing my formal studies in Psychology in 1975 I was introduced to the research of Elizabeth Loftus and her discussions of “The Incredible Eyewitness”. She demonstrated how witness memory of events could be altered by factors such as the leading questions posed to them. Many psychological experiments by numerous researchers at universities and private institutions have expanded on these concepts. I read about many of those studies and was involved in conducting my own experiments as part of my psychological training. I was trained to recognize that the scientific study of behavior was, and is, structured and precise so as not to allow the creation of confounds, bias or extraneous factors that may be  inadvertently introduced. This is no different than the scientific method surrounding experiments designed to test the effects of a drug where it is absolutely essential that any possible confounds be accounted for in the planning of a study. Cautions about the reliability of eyewitness information have been in existence throughout my studies and became obvious during my evaluations of individual reconstructions of motor vehicle crashes.

Indirectly, a collision reconstruction must also contain aspects of the scientific study of behavior. And the process of conducting a judicial trial must also adopt elements of procedure conducted in psychological experimentation and scientific experiments in general. When the “experimenter”, whether it be the expert witness, judge or jury is incapable of detecting a situation that might involve the existence/operation of a confounding factor in the data, results or conclusions it becomes a problem. It is a red flag when someone declares that something is obvious without providing scientific proof. Most likely that which is obvious is only in the eyes of the beholder who does not know when there is something they do not know. For this reason an opinion or conclusion should not be offered without sufficient basis, not only by expert witnesses, but also by judges. Reliance on the belief that eyewitness information should be accepted as fact because the witness appears to be credible is a dangerous belief when that appearance is the only scale with which the evidence is weighed. Clearly the executions of the Salem witches should explain why that is so.

There are several examples in the statement and testimony of Mr. Marshall that required caution yet Justice Moldaver accepted his information as accurate.

As an example, Justice Moldaver referred to Mr. Marshall’s testimony at trial to support his belief that the Johnson’s speed was too fast: “Mr. Marshall’s first thought when he saw the couple was that they were going way too fast” and “given the speed that the bicycle was travelling, Mr. Marshall thought “how are they going to stop?”

However was the speed of 45 km/h indeed too fast to stop, as stated by this witness? Justice Moldaver was aware of the testing by Constable Michalski that, even though he almost lost control of his bicycle at the speed of 51 km/h he was able to stop at the south end of the bridge which was 30 metres south of the embankment where the impact occurred. So even from Constable Michalski’s testing Justice Moldaver should have known that Mr. Marshall’s conclusion was wrong. The speed of 45 km/h should not have been too fast to bring the tandem cycle to a stop before striking the embankment if the road surface was in reasonable condition at the crucial time that braking was required.

Furthermore Justice Moldaver reported Marshall’s testimony that, as the trandem cycle was at the south end of the bridge it was travelling at 40 km/h. If the cycle had not been knocked over by the large change in vertical angle of the road and bridge the Johnsons should have had about 30 metres of travelling up an upslope before striking the embankment. If such data was provided for an expert’s comment it would have been demonstrated that 30 metres of travel on an upgrade should have been more than enough distance to brake to a halt before reaching the escarpment wall, if the cyclist was given an opportunity to do so.

If this speed of 40 km/h was accurate then it would also establish that the Johnsons must have been applying substantial braking while riding down the slope since, from the initially-observed speed of 45 km/h, their  speed should have been increased travelling down the steep downgrade. How could Justice Moldaver conclude that the Johnsons were not attentive to their speed when the evidence of Mr. Marshall, which he relied upon, indicated that the Johnsons had to be applying substantial braking up to the point where the bicycle and rider fell on the north side of the bridge?

Furthermore, Justice Moldaver quoted Marshall’s testimony that Marshall first saw the tandem bicycle when it was “approximately 150 feet (45 metres) south of the bridge”. But it has already been revealed Marshall could have seen a distance of 180 metres (Gorski) or 141 metres (survey). A distance of just 45 metres is only about a quarter of the way up the hill if the visibility distance was 180 metres and it would be about  a third of the way up the hill if the visibility distance was 141 metres. Yet it did not appear to register in Justice Moldaver’s judgment that in Marshall’s November, 1992 statement he said “They were both pedaling until about halfway down the hill. They started to coast until they got onto the bridge”. How can it be true that Marshall first saw the Johnson bicycle when it was already two-thirds or three-quarters of the way down the hill when he states that he observed the Johnsons’ actions through the first half of the hill? Is this not a relevant discrepancy in Mr. Marshall’s testimony? Why did Justice Moldaver not discuss this obvious discrepancy in his decision?

Mr. Marshall also erred in his testimony when he claimed that the Johnson cycle was elevated into the air after striking the bridge and that it struck the escarpment wall approximately 3 feet above its base. The reason why this evidence was challenged was because Justice Taylor could see that there were fresh scrapes on the pavement leading from the bridge  to the escarpment wall and this showed that the cycle was not flying through the air but was sliding on the pavement. Thus Mr. Marshall’s testimony was refuted by the objective evidence that was capable of being seen. However, what does that say about the rest of Mr. Marshall’s evidence that cannot be compared to any objective evidence because there is no objective evidence? If the other evidence of Mr. Marshall was also flawed how would Justice Taylor or Justice Moldaver know?

Thus the erred and inflammatory evidence provided by Marshall was not questioned by Justice Moldaver but it would have been questioned by an expert who could conduct the proper calculations that Justice Moldaver did not perform. The disturbing reality is that throughout Justice Moldaver’s judgment there are indications of his rush to assumptions that cannot be made because they are not supported by the facts. For example he noted:

“I note that irrespective of the signage, the accident occurred in broad daylight and the embankment was not hidden from view.” 

The photograph of the collision site below was taken in 1994 on a similar sunny day as the time of the accident. The “broad daylight” that was obvious to Justice Moldaver has created deep shadows at the escarpment wall. If the bright arrow signs were removed, as they were on the collision date, it would make it difficult to detect the presence of the escarpment wall, as can be clearly noted in the photograph.

I accept that this may be a moot point as the Johnson’s would have known of the wall’s presence from their earlier visit to the site. However this is not the reason why this demonstration is necessary. It is necessary because Justice Moldaver has made this unacceptable assumption that just because something is viewed in “broad daylight” it must be visible. He fails to understand this basic fact that bright sun can produce deep shadows and the observer in bright sun will have difficulty seeing something dangerous that exists in the deep shade. This is the type of logic that should be disturbing to anyone looking at the above photo. A judge who has been elevated to the position of the Ontario Court of Appeal, and beyond, cannot be allowed to make such fundamental errors in reasoning. This is the crux of the problem.

The Aftermath

Throughout the trial representatives of the defendant Municipality claimed that the reason why a larger bridge was not installed after 1965 was because the road would be closed due to the building of the Hwy 407 expressway. The reasonableness of that argument was questioned by Justice Taylor. My visit to the site in 2000 showed that Highway 407 was still being constructed in that vicinity. Thus a time of 35 years passed since the collapse of the original bridge before the Glenorchy site was closed.

I re-examined the site again on October 18, 2018. Looking along the northward travel direction (i.e. the travel direction of the Johnsons’ tandem bicycle) the photo below shows that, indeed, the road has been closed to motorized traffic about 200 metres south of the Glenorchy bridge. But it has not been totally closed. It is now a trail for pedestrians and cyclists.

Among several signs posted at the barricade is a warning sign indicating that cyclists should dismount. However the sign in not large or distinctive and it is positioned at the far right of the passage gate, as shown in the photo below.

The only information about the character of the road is that there is a “Steep Slope Ahead” but it does not provide an indication of the actual steepness. For example, a slope of 7 percent might be viewed by some cyclists as steep if they have lived predominantly in a flat area of southern Ontario.

Furthermore, as one looks northward, past the barricade, the roadway has no warning signs, as shown in the photograph below. The yellow centre-line still exists on the roadway which would suggest to users that traffic other than pedestrians are likely to use the road. Otherwise why would a centre-line be needed if the road is to be used exclusively by pedestrians or cyclists who are walking their bicycles?

One of the key criticisms by Justice Taylor was that the signage on the date of the tandem bike collision was inadequate. This opinion could be expressed because I provided him with a copy of the Ontario Manual of Uniform Traffic Control Devices (MUTCD). Justice Taylor quoted from this manual on several occasions thus establishing that the signage requirements were not met. If Justice Taylor’s criticisms were supported in Justice Moldaver’s subsequent judgment the Municipality’s attention would have been drawn to the necessity of providing advance warnings of the road character and conditions. Looking at the above photo it is clear that the Municipality has not focused on the issue of installing warning signs leading up to the bridge and steep down slope which are not visible from this location. Even if motorized traffic was banned from the current site, the Municipality could have been warned of their need to provide sufficient guidance to cyclists that might decide to ride down the steep downgrade. Common sense and previous experience would dictate that cyclists will not dismount without seeing a reason to do so. The view from the barricade shown in the above photograph provides no reason why a cyclist would need to dismount and walk to the bridge.

Looking further northward, as shown below, one can see a two-stemmed tree which seems to be located in the middle of the road and this could suggest to bicyclists that the road may curve to the left in the distance where it is not visible. However there is no warning about the characteristics of the road or that a narrow bridge might become revealed just beyond.

As we move further northward a new bridge finally comes into view, as shown in the photo below. However this bridge comes into view at less than 100 metres. This is far less than the original bailey bridge that began to be visible between 141 and 180 metres. Measurements of the slope of the road leading to the bridge indicate that it has not changed, it is still at a maximum of 18%.

There are several problems with the design of this new bridge and its location. Firstly, it is very narrow, even narrower than the bailey bridge. The original bailey bridge was 4 metres wide whereas the new bridge is only 3 metres wide. Secondly, it is located further to the east with respect to the approaching road so that its presence is masked from northbound bicyclists, even more than the bailey bridge. Finally the bridge is much narrower than the width of the road that approaches it. The road is about 6 metres wide just in front of the 3-metre-wide bridge.

The designers of the bridge failed to consider the problems that were identified at the Johnson trial and, in certain ways, made the site even worse for cyclists than it was before. Although a “Cyclists Dismount” sign was placed at the top of the slope this only provides the means by which the Municipality can defend itself in a possible future claim. Anyone familiar with cyclists would know that very few cyclists would actually dismount without being given a specific reason to do so. This does not improve the safety of the site, it only makes it easier for the defendant Municipality to avoid its obligations while making it more likely that another cyclist could be killed.

If the Municipality had been concerned about bicyclist safety it would have lined up the bridge with the middle of the road or, even better, the right portion of the road where it would be seen earlier and cyclists would not have to adjust their direction of travel as much as they do now. While the road surface conditions were reasonable at the time of our inspection in October, 2018, it does not take much imagination to recognize that it could easily fall into disrepair like it did in 1992.

Yet, it needs to be acknowledged that some improvements were made. The bailey bridge was 12 metres long and the current bridge is 26 metres long. Also the new bridge has been elevated slightly, as shown in the photo below.

Furthermore, the fact that a barricade now exists about 200 metres south of the bridge means that cyclists would have to stop at the barricade and then regain speed from that location toward the bridge. The required stop is an important safety improvement because the speed gained from coasting down the slope would originate from a stop. In the 1992 scenario the long distance of approach along the down grade approaching the 200 metre location meant that a cyclist might already be travelling at a substantial speed at the 200 metre location, even before reaching the most severe slope.

During the time of my examination I only observed two pedestrians walking together through the site and not a single cyclist came through. However October would not be expected to generate much bicycle traffic. Whether recent cyclist collisions have occurred here is unknown as such information is difficult to obtain. But even if a bicycle collision occurred it is not likely that it would be officially reported. Past research has noted that, worldwide, only about 10 percent of bicycle collisions are ever reported.

So, in the aftermath of Justice Moldaver’s decision some improvements have been made but not to the degree that should be required. By failing to provide a sufficient penalty to the Municipality for the conditions of the site in the Johnson collision, the Municipality has not recognized the need, and has not recognized its duty, to ensure the safety of the users of the site. While protecting itself from further civil claims with the erection of the “Cyclists Dismount” sign it has not done enough to improve the public’s safety as cyclists will continue to ride along the site.

The damage done by Justice Moldaver’s decision is not only with respect to this site. The precedent that Justice Moldaver has set will result in future developments of sites that do not take cyclist’s safety into consideration.

It also creates a precedent in the courts of Ontario that accident reconstruction does not involve the assessment of a roadway’s safety. This is perhaps the most damaging result of all. It sends the message to the lower courts that experts who have conducted analyses of collisions for over 21 years and can demonstrate an active study of roadway safety issues, cannot testify as to the safe conditions of a roadway. This is a clear bias benefiting defendants who can feel confident  that, regardless of the road conditions, there will be no independent expert who will be able to present evidence of roadway deficiencies in the courts of the Province of Ontario.

Several years prior to the writing of this article, the Prime Minister of Canada, Stephen Harper, appointed Justice Moldaver to the Supreme Court of Canada. He became one of 12 twelve individuals who have a life-time position of deciding the most important matters of Canada’s governance. It is hoped that the other 11 members of this highest court have the exceptional reasoning and lack of bias that is essential to their positions. However appointments such as Justice Moldaver’s must be questioned when he has demonstrated deficiencies in his reasoning and has demonstrated his willingness to draw conclusions regardless of whether he has conducted sufficient research to support those conclusions. While the executions of the Witches of Salem seem far away and irrelevant they are not. Some judges like Moldaver behave now like they did back then, drawing unsupportable conclusions that cannot be corrected because they hold the supreme power of their office that cannot be challenged. The fact that a judgement has been made without the recognition that  it is based on complete fiction should be obvious to any reasonable person, except someone who exhibits no censure of his own inappropriate actions.

I am informed that Justice Moldaver has since retired. What guarantees does our society put in place that those holding such powerful positions can be relied upon to act appropriately? The difference between an autocratic regime and one upholding law and order, supported by objective fact, is whether we are vigilant to the extreme importance of making sure that the individuals appointed to our highest courts are of the highest calibre.  What checks and balances have been put in place to make sure that is happens and continues? I leave that thought to the reader.