Collisions in the Cone Zone: Liability issues for Motor Vehicle Accidents in Construction Zones Under a Traffic Management Plan

When collisions between vehicles, pedestrians, or workers take place in construction zones where a traffic management plan calls for flaggers to safely direct traffic, the question of who should bear liability for the collision, and to what extent, can be complex and difficult to reconcile.

In work zones involving roadway construction, traffic management plans are generally required to be prepared in advance to adhere with regulatory requirements and often include stamped engineering plans that are used to obtain required permits from local authorities.

An effective traffic management plan should be implemented to protect workers and accommodate road users while work is underway on roadways. Industry experts agree that the traffic industry is getting more complex as our roads get busier and construction projects expand. A professional traffic management plan is imperative for any company doing work that impacts traffic configurations. The objective of a well-designed traffic management plan is to ensure a safe, efficient, and detailed setup for a work zone that complies with all traffic control industry standards and government and safety regulations. 

The other key aspect to consider is the role of traffic control service personnel and their responsibilities with respect to implementing traffic management plans. Traffic control services generally include flagging teams consisting of Traffic Control Persons and Lane Control Technicians, both of which are often referred to as flaggers. These personnel are equipped with temporary signage, safety gear and other traffic management equipment as required by the traffic management plan. This ensures workers are well-protected and traffic can safely approach, move through, and exit the work zone, especially where lane closures and turning restrictions can complicate the flow of traffic.

Typically, the traffic management personnel who are on site are responsible for implementing the traffic management plan including set up, installation, and auditing of traffic control and signage in a work zone. 

Depending on the circumstances, it may be that one contractor is retained to prepare traffic management plans and have them approved by an engineer to obtain permits for the work zone, and a different contractor is retained to provide traffic management personnel on site to implement the traffic management plan. 

Where traffic management plans call for certain restrictions with respect to traffic flow (such as no left turns, lane closures, merging lanes, etc.), the placement of flaggers and work zone signage can play a pivotal role in determining liability when collisions occur. 

In circumstances where the traffic management personnel fail to adhere to the standard of care with respect to the set up and placement of signage in a work zone in compliance with the traffic management plan, where the absence of proper signage causes or contributes to a collision, the traffic management personnel contractor may face risk of liability.

In British Columbia, the Motor Vehicle Act, RSBC 1996, Chapter 318 (the “MVA”) provides the following specific provision with respect to traffic-controlled roadways:

• Obeying flagger 141 If a flagger is controlling the movements of traffic around the section of highway being worked on, a person must not drive or operate a vehicle other than as directed by the flagger.
• Obeying traffic control person 141.1 (2) If a traffic control person is controlling the movements of traffic on a highway, a person must obey the directions of the traffic control person.

In Kelly v Lowe, 2007 BCSC 596, the court considered liability for a motor vehicle accident which took place in a construction zone controlled by flaggers. The court stated that the fact of a line of traffic being controlled by a flagger does not relieve a driver from exercising due care:

• [50] While a driver is obliged by s. 141 of the Motor Vehicle Act to obey the directions of flag persons, even if directed by a flag person, a driver is not relieved of the obligation to exercise reasonable care (see McKay (Guardian ad litem) v Jager, [1979] B.C.J. No. 1291 (S.C.)).

The court further elaborated that flaggers controlling traffic must exercise reasonable care in so doing:

• [55] If a motorist indicates that they plan to execute a manoeuvre and seek the advice or permission of the flag person before doing so, the duty to exercise reasonable care requires the flag person to indicate clearly whether the manoeuvre can or cannot be made safely or at all.

In McKay (Guardian ad litem) v Jager, [1979] B.C.J. No. 1291 (S.C.), the defendant motorist alleged that  proceeded as directed by the flagger on scene when he changed his sign from “Stop” to “Slow”. The court considered the application of (then section 135) of the MVA and declined to interpret this section as going so far as to amount to controlling the actions of motorists when being directed by flaggers:

• [5] In my view, the Section does not operate such as to relieve a driver waved on by the flagman from that driver’s normal responsibility to other persons on the highway. All the Section says is that a motorist shall obey the directions of the flagman which in fact are limited to telling the motorist either to stop or to go, but not how to drive once the motorist has proceeded in obedience to the sign.

In Schatroph v Abou-Khazaal, 2022 BCPC 324, the claimant alleged that a flagger was also at fault because they directed the claimant to turn left when it was not safe to do so thereby contributing to the circumstances giving rise to the collision with the defendant. The Provincial Court relied on section 141 of the MVA while also confirming that the common law duty for drivers to exercise due care exists in addition to these statutory provisions as the MVA does not constitute a complete code (Cook v Teh, (1990), B.C.L.R. (2d) 194). 

The court relied on Kelly v Lowe in stating:

• [13] Flaggers must exercise reasonable care in the manner in which they control traffic. While a driver is obliged by s. 141 of the MVA to obey the directions of flaggers, even when they are being so directed they must still exercise reasonable care.  

When discussing findings of fact on liability, the court held that the evidence of the claimant with respect to where flaggers were positioned and what directions he thought they were giving him was not capable of establishing on a balance of probability that either the flaggers or the defendant driver were negligent in the circumstances.

In summary, while flaggers and other traffic control personnel do their best to control and direct traffic in work zones, they do not control the actions of individual motorists and thus are not liable for those actions where a motorist may cause or contribute to a collision taking place in the work zone.

Even when flaggers and other traffic control personnel use signage and direct traffic to control an intersection or part of a roadway, the duties placed on motorists under the law to exercise reasonable care are not displaced. 

1. The onus remains on drivers in a work zone to operate their vehicle with reasonable care including observing traffic directions by traffic control personnel;
   
   
2. Traffic control personnel may be exposed to liability in certain circumstances where they fail to follow a traffic management plan and their actions fall below the standard of care expected of them under the law of negligence;
   
   
3. Investigating the scene of the accident on the date of loss is key to preserving evidence, especially with respect to the operations of traffic management personnel including the placement of signage at the scene and positioning of equipment or other obstructions; and
   
   
4. Assessing liability should include consideration of the traffic management plan with respect to the ability of drivers to safely navigate the work zone and the ability of traffic control personnel to properly implement the traffic management plan.