Driver Liable for Collision After He “Dozed Off” at the Wheel
Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, assessing fault for a collision where a motorist lost consciousness while behind the wheel.
In this week’s case (Holt v. Rother) the Defendant motorist lost consciousness while driving his vehicle. ¬†His vehicle veered across the oncoming lane and onto the southwest shoulder where he struck and seriously injured the Plaintiff pedestrian.
The Defendant argued he was not at fault suggesting that an “unexpected and unforeseeable medical condition” caused him to lose consciousness. ¬†Mr. Justice Barrow rejected this explanation finding it was more likely than not that the Defendant simply ‘dozed off’. ¬†In finding the Defendant fully at fault Mr. Justice Barrow provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The issue that remains is whether the defendant has rebutted the inference of negligence that arises from the proven manner of driving. He points out that it is impossible to prove what may have caused him to lose consciousness, if that is what happened, and he is not required to do that. It seems to me that it is at least as likely that Mr.¬†Rother dozed off just before he struck the plaintiff as it is that he lost consciousness for some other reason. In fact, I think this is the more likely explanation. He was 76¬†years old. He had been out in the hot sun all afternoon. He had been intermittently swimming. He had driven 20 or 30 minutes on the highway in the late afternoon. I agree with Dr.¬†Cameron that a syncopal episode, while possible, is not a likely explanation for what happened. Further, I agree that vasovagal fainting, while more likely than a syncopal episode, is less likely than simply dozing off.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In reaching this conclusion, I have considered the actual driving evidence. It is not necessary to conclude that Mr.¬†Rother was attempting to flee the scene after he struck the plaintiff. I have no doubt that had he been aware he hit the plaintiff, he would have stopped immediately. I think it likely that he was not aware he struck the plaintiff and was not attempting to drive away when he hit the lamp standard. I think it likely that he was aroused from his momentary lapse of consciousness, and before he regained his wits, he struck the lamp standard and his vehicle rolled over.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As noted by Evans J. in¬†Boomer v. Penn, ‚Äú[t]he evidence must disclose the probability that the driver’s acts and omissions were not conscious acts of his volition‚ÄĚ. Further, he must establish that if he suffered a lapse in consciousness, that it was not reasonably foreseeable. Dr.¬†Francis said, and common experience supports, that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. While Mr.¬†Rother did not say that he experienced such symptoms he is, as noted, an unreliable historian, and his memory of events shortly before the accident is not complete.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am not satisfied that Mr.¬†Rother has discharged the onus he bears to establish that his driving, on the day in question, was not volitional or, if it was not volitional, that it was the result of something that was not reasonably foreseeable.