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For any victim of a personal injury sustained in a motor vehicle collision, it is crucial to establish the 'cause' of the collision in order to establish liability against a driver. In all cases, the personal injury lawyer will seek to establish liability by proving that the defendant driver was inattentive or distracted while driving and was therefore negligent. Unless negligence is established, there will be no liability found by a Court.

One of the most common causes of motor vehicle collisions is driver inattention and driver distraction. In many cases, when a collision occurs, the responsible driver was momentarily distracted by a wide variety of causes ' ranging from talking to passengers, adjusting a radio or air conditioning/heating, sipping their coffee, eating, lighting a cigarette, etc.

With the advent of new technology, the use of cell phones and other electronic devices like blackberries while driving have become a serious traffic safety issue. The danger with using such devices is that the distraction causes a delay in the response time of drivers to critical events on the road, and individuals talking on cell phones have been found to be 18% slower in applying their brakes to avoid collisions.

While there are very few reported decisions in our Courts commenting on or finding negligence as a result of cell phone use by drivers involved in motor vehicle collisions, the dangers created by cell phone use while driving are aptly demonstrated in the decision in Weston v. Regan [2006] A.J. No. 1049 (Alberta Court of Queen's Bench). In that case, the Plaintiff driver was travelling at 130 kilometres per hour on cruise control and was attempting to locate his cell phone that he had dropped when he failed to observe a vehicle ahead and collided with it. The Plaintiff was found 50% at fault, despite the other driver having the duty to yield the right of way. Proof of cell phone use contributing to a collision is difficult, but evidence (or an admission) that a driver was engaged in a conversation at the time of a collision can assist in establishing liability against such a driver.

A recent report on Driver Distraction (by Douglas J. Beirness, Herb M. Simpson, Anita Pak, entitled 'The Road Safety Monitor, Driver Distraction' - The Traffic Injury Research Foundation: Ottawa, March 2002) revealed the following:

1 in 5 drivers regularly use a cell phone while operating a motor vehicle;

The risk of a collision is between 3 - 6.5 times higher when a cell phone is being used and there is a 38 percent higher risk if a cell phone is used while driving (compared to those not using cell phones while driving);

the risk of a collision increases the more often you use a cell phone;

Men are considerably more likely than women to use cell phones while driving, and tend to use it for longer periods of time;

Drivers aged 25 to 29 are most likely to use cell phones while driving, and one third of drivers in this age range report doing so;

Drivers who use cell phones tend to be male, younger, live in urban areas, work in jobs that require driving, have higher educational status, drive more, drink more, and are more likely to drive after drinking and to have received a traffic ticket. These are all considered characteristic of high-risk drivers.

The problem of cell phone use and its contribution to motor vehicle collision causation has become widely recognized in the past few years. A number of countries, including the United Kingdom, Australia and much of Europe have also banned using cell phones while driving. Newfoundland and Labrador passed legislation in 2003 banning the use of cell phones, and under Section 176.1 of the Highway Traffic Act, R.S.N.L. 1990, H-3, it is an offence for drivers to use hand-held cell phones. The use of hands-free cell phones is still permitted in that Province.

Doctors Nova Scotia have stated that they are in favour of lobbying the Nova Scotia Government to introduce legislation to ban all cell phone use while driving. The requested ban would apply to both hand-held and headset types of cell phones. The President of Doctors Nova Scotia, Dr. Don Pugsley, has pointed out that the issue is one of distraction and losing focus whilst driving as a result of cell phone use, and not just having one hand occupied by a phone.

Calls to ban cell phone use while driving has generated controversy, with opponents arguing that such proposed laws interfere with individual rights and the Government or groups like Doctors Nova Scotia have no right to prohibit cell phone use. The arguments are similar to those that arose when mandatory seat belt or helmet use was first considered and introduced. It can be suggested that requiring individuals who wish to place or receive a call on a cell phone, to simply pull over to the side of the road for the duration of the call is not an unreasonable infringement on human liberty, if it avoids a preventable injury or death.

Let's all follow the prescription put forward by our doctors and not mix driving with cell phone calls.

By John McKim

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