ICBC Law

With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions.  With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:

Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.

In anticipation of the almost certain phone calls I will receive this week I write this post.

If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.

If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.

Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.

If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.

People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.

Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.

In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.

Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, dismissing a personal injury lawsuit following a 2006 collision.

In this week’s case (Racy v. Leask) the Plaintiff was a passenger in the Defendant’s vehicle.  They were driving in a remote part of BC in the early evening when the vehicle encountered two moose on the roadway.  The driver could not avoid collision resulting in injuries to the passenger.  The passenger sued for damages although the claim was dismissed with Madame Justice Ker finding that the driver was not negligent.  In reaching this conclusion the Court provided the following reasons:

[100] In this case, Ms. Leask acted immediately and appropriately upon first encountering the moose. Upon rounding the bend or corner in the road and seeing the moose, she gave a warning to Ms. Racy and at the same time applied the brakes to slow the vehicle as best she could without risking swerving in either direction. The two moose were not standing in the lane of travel but were moving toward it from the shoulder on the right hand side of the highway. The road conditions were dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated. Rather, they were caught in the range of the headlights. There is no evidence as to what the range of the headlights on high beam for this model of vehicle is in this case. Ms. Leask was driving at least 10 km/h below the posted speed limit and was in all likelihood travelling at a speed of between 85 and 90 km/h. Ms. Leask reduced her speed to take into account the driving conditions including the fact that it was dark and the possibility of encountering wildlife.

[101] Significantly, and as in Pitt Enterprises and Fajardo, there is no evidence of what speed Ms. Leask would have to have been travelling at to have been able to stop her truck once the two moose became visible to her. Nor is there any evidence as to how far the defendant’s lights would have illuminated the highway in this case, something available in the case of Pitt Enterprises.

[102] In addition, the collision in this case did not occur in an area that could be described as a “moose alley” where it is more probable than not that moose will be found. While an accident may have occurred a year before in the same general area where a driver struck a moose, there is no other evidence to suggest this is an area where it is more probable than not that moose will be found. Ms. Leask was aware there might be wildlife in the area and had adjusted her speed accordingly and was wary of the possibility.

[103] As soon as Ms. Leask saw the moose she applied her brakes, but not with enough force to completely avoid colliding with the moose. I accept her evidence that the moose were fairly close to the vehicle, within the beam of the vehicle headlights, when she first encountered them and that they continued to move from the shoulder area to the vehicle’s lane of travel. Despite her efforts to avoid a collision by applying the brakes and maintaining a straight path, instead of swerving in either direction, the collision with the moose calf could not be avoided.

[104] Considering all the circumstances in this case, I conclude that the collision with the moose was not occasioned by any negligence or want of care on the part of Ms. Leask. I find that Ms. Leask was not driving at an excessive speed given the conditions. I also find that she was not negligent in failing to apply the vehicle brakes more forcefully or in failing to take any other evasive action such as pulling or swerving to the right or the left of her lane of travel. To have done so no doubt would have resulted in much graver consequences: a head on collision with either the mother moose or the calf. The plaintiff has failed to establish on a balance of probabilities the defendant was negligent in her response to seeing the moose on the highway. Accordingly, the plaintiff’s case fails and the action must be dismissed.

For more on this topic you can click here to access my archived posts dealing with single vehicle collisions and the inevitable accident defence.

Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.

In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.

The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.

The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ’spoiliation’ at paragraphs 30-33 of the reasons for judgement.

Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, addressing the issue of fault for a single vehicle collision.

In today’s case (Bassi v. Bassi) the Plaintiffs were passengers in a vehicle driven by the Defendant.  The Defendant lost control resulting in a roll-over crash.   The passengers were injured and sued for compensation claiming the Defendant was careless.  The Defendant argued that he was not and that he lost control due to a deer in the roadway.  Mr. Justice Cullen found the Defendant entirely at fault for the crash and in doing so provided the following analysis:

[20]         As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part.  In my view, it does not.  Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.

[21]         In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer.  The defendant said he swerved because he “got a little nervous.”  It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances.  There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.

[22]         Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures - and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.

[23]         Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.”  It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual.  Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway.  There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”

[24]         In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.”  It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway.  Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.

[25]         The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right.  There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.

[26]         In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident.  In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.

[27]         I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left.  I, therefore, find liability in favour of the plaintiffs.

The first snow of the year is falling and with it will come the usual increase in motor vehicle accidents.  With this in mind I’m republishing a post I originally wrote in the early days of this blog:

Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.

In anticipation of the almost certain phone calls I will receive this week I write this post.

If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.

If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.

Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.

If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.

People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.

Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

(UPDATE: May 9, 2012 … The Trial Judge’s findings regarding liability were appealed.  The Appeal was dismissed today.)

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding just over $450,000 in damages for injuries and losses arising out of a 2006 BC Motor Vehicle Collision.

In today’s case (Power v. White) the Plaintiff was involved in a 2 vehicle collision.  As the Plaintiff was driving down the Island Highway a deer ran into his lane of travel threatening collision.  The Plaintiff reacted suddenly by changing into the right lane and braking as hard as he could.  Unfortunately this was not sufficient and the Plaintiff’s vehicle struck the deer.  Shortly afterwards the Defendant, who was travelling in the right lane, collided with the rear of the Plaintiff’s vehicle.  Fault was at issue however the Mr. Justice Verhoeven found that the Plaintiff reacted reasonably to the threatened collision and that the Defendant was 100% at fault for failing to drive with all due care and attention.

The Plaintiff suffered various injuries the most serious of which was a tear to his pectoralis major muscle.  This injury did not fully heal and was expected to effect the Plaintiff well into the future.  The Plaintiff’s family doctor provided the following evidence with respect to the severity of this injury:

In review, Mr. Power sustained injuries to his right pectoralis major (partial tear) to the right T-6 area as well as some transient injuries to the soft tissues in his right shoulder and base of neck and right buttock area. These complaints started after his accident and have been persistent and continuous since that time. Institution of physiotherapy, chiropractic and exercised based therapy have been useful in increasing some of his functional capacity since the accident, but have plateaued in that the pain from either his right pectoralis area or the T-6 area have limited any further advancement of intensity or duration of his exercise. These injuries have significantly limited his recreational activities, particularly swimming, biking and running as well as his ability to care for his house and yard, particularly the use of his power saw, shovels and mowing his lawn. At work he generally does not have a lot of limitation as he is able to get up from his seat when he needs to but does have limited sitting capacity as has previously been outlined. He does and would have some problems turning some of the heavy valves and climbing the ladders if there is a breakdown at the mill, however he does have a partner and this has generally worked out that the partner has done this.

Mr. Power has sustained significant injuries from the accident. His functional limitations have been outlined in detail. They are significant for his recreational and household and yard activities. At this time I do not see a significant future recovery for these and at the moment I am unable to find a surgeon who would consider repairing this injury, although I will persist in searching the literature for a possible solution for this problem. Mr. Power has shown he is determined to remain active, having returned to work promptly after his accident, followed all of my instructions as well as his therapist’s instructions to the letter and done a persistent and significant job in increasing his activities to what is now his limit due to pain in the aforementioned areas and I do not see his disabilities resolving in the near future.

Mr. Justice Verhoeven awarded the Plaintiff $135,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court provided the following reasons:

[82]         In this case, Mr. Power has suffered a very significant and permanent loss to the lifestyle he previously enjoyed. Virtually all of his previous physical activities have been severely curtailed. Prior to the accident Mr. Powers physical vigour was central to his life and lifestyle. His mood and emotional well being have been negatively affected. His relationship with his wife has been harmed. His ability to improve and maintain his property, quite obviously a source of great pleasure and pride to him formerly, is all but completely gone. He has not and will not in future be as physically fit as he previously was. It is reasonable to infer that this may affect his health long term. I think it likely that Mr. and Mrs. Power will sell their five acre property and move into a residence that does not require so much effort to maintain…

[84]         In all these circumstances, I assess the plaintiff’s non-pecuniary loss at $135,000.

If a driver loses control of their vehicle resulting in a collision causing you injury they will always be found negligent in a personal injury lawsuit, right?  Not necessarily.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.

In today’s case (Geiger v. Schmidt) the Plaintiff sued for compensation as a result of injuries she sustained in two BC motor vehicle collisions.  In the first crash the Plaintiff was a passenger in her own vehicle.    The vehicle was travelling on Highway 99 just South of Vancouver.  The posted speed limit was 100 kmph.  The road conditions were poor due to winter weather.  The driver slowed to 70 kmph to take this into account.  The Plaintiff asked the driver to slow further and put the vehicle into four-wheel drive.  Before the driver did so the “back end of the vehicle slid.  It spun 360 degrees, collided with the median, bounced off it, went into another spin and then struck it a second time“.

The Plaintiff was injured in this crash and sued for damages.  The driver argued that he was not at fault and did nothing careless.  Mr. Justice Brown agreed and dismissed the lawsuit.  In doing so he provided the following analysis:

[44]         In my view, given the fact the defendant was attuned to the conditions he was facing and had responded to them by lowering his speed by almost one-third, the negligence question in this case comes down to deciding whether he failed to exercise all reasonable care because he failed to comply with the plaintiff’s suggestion by lowering his speed and transferring the driveline to four wheel drive before he lost control. In other words, did exercising all reasonable precautions encompass disregarding his own assessment and complying with the plaintiff’s suggestion?

[45]         In some circumstances, reasonable drivers assessing driving conditions would consider the suggestions of passengers, especially when the driver is inexperienced or less familiar with the road then the passenger. In many cases, the passenger’s recommendation will correspond with the most objectively reasonable precaution.

[46]         However, the driver is ultimately responsible for assessing the objective conditions and responding in a reasonable way. In the circumstances of this case, I find the defendant’s failure to follow the plaintiff’s suggestion to slow down and transfer to four-wheel drive is not sufficient to satisfy the plaintiff’s burden of establishing the defendant was negligent.

[47]         Further, I heard no evidence of what speed would be low enough in the conditions the defendant was facing to prevent a loss of control and the spin outs that followed. There was no evidence to show that, had the defendant switched into four-wheel drive or reduced his speed, he could have avoided the accident. A judge can take judicial notice of the natural correlation between higher speed and decreased traction; but such common knowledge does not licence a leap from that to a conclusion the defendant likely would have avoided the accident if the plaintiff had agreed with the plaintiff and lowered his speed.

[48]         This is not a case of a driver ignoring passenger pleas to slow down while driving at a speed all reasonably cautious drivers would consider unsafe in the circumstances.

[49]         The standard of care is not perfection. There is no evidence the defendant was inattentive or indifferent to road conditions. His decision to delay transferring to four wheel drive until he felt ready doing so was not unreasonable. The vehicle was equipped with snow tires. The temperature was around 4 degrees centigrade. The defendant was exercising reasonable caution by driving a full 30 kph below the posted speed limit.

[50]         As in Nason, I find insufficient evidence to show the defendant in these circumstances was negligent: at best, the weight of the evidence hangs evenly in the balance. I find the plaintiff has failed to satisfy the burden of proof and so I must dismiss the plaintiff’s claim against the defendant.

Prior to dismissing the lawsuit Mr. Justice Brown canvassed several recent authorities which address fault in collisions where a driver loses control and the case is worth reviewing in full for anyone interested in this area of law.  You can also click here to read my archived posts addressing fault for BC crashes where a driver loses control due to road conditions or other hazards.

I have written previously about the ‘invevitable accident‘ defence more accurately referred to as a ‘no-negligence‘ defence.  Today the BC Court of Appeal released reasons for judgement considering this area of the law in the context of a personal injury lawsuit that was dismissed by a BC Jury.

In today’s case (Bhangal v. Sloan) the Plaintiff was injured when his vehicle was struck by a pick-up truck driven by the Defendant.  The Defendant went through a stop sign without stopping.    His explanation was that he was not careless but rather could not stop due to the slope of the hill he was travelling down and ice on the roadway.  The Jury accepted this evidence and dismissed the Plaintiff’s claim finding that the Defendant was not careless in operating his truck.

The Plaintiff appealed arguing that the Jury was wrong and that their finding was one “no properly instructed jury could reach“.  The BC Court of Appeal disagreed and upheld the Jury dismissal of the personal injury lawsuit.  In reaching this conclusion the BC High Court reasoned as follows:

In Fontaine, the principle of res ipsa loquitur was put to one side as being no longer applicable in Canadian negligence law. It is no longer to be presumed that a car running off the road (or its loss of control) is attributable to the negligence of its driver. Rather, a case in negligence must be proven on both the direct and circumstantial evidence adduced, with effect being given to such inferences as the evidence properly supports.

[10] In Nason v. Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”

[11] Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.

[12] I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

[13] Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

[14] I would accordingly dismiss the appeal.

Here is video I recently uploaded to YouTube discussing injury claims (tort claims) brought by passengers when the driver of their vehicle is at fault for a single vehicle collision in British Columbia.

I have previously written about this topic and you can click here to read my archived posts discussing single vehicle collisions and the inevitable accident defence.

I hope this information is of assistance.