Negligence Claim Dismissed Following Vehicle / Sled Collision

Reasons for judgement were released today (Scott v. Brown) by the BC Court of Appeal addressing motorist liability following a vehicle collision with a two children who were “riding their sled westbound on 4th Street (in Nakusp, BC) down a gentle slope.“.   The Defendant motorist was driving eastbound.  It was “snowing heavily and visibility was poor“.     The trial judge found that while the vehicle, travelling with its lights on, should have been visible to the Plaintiffs they may not have been visible to the Defendant with sufficient time to react.  The claim was dismissed.  In upholding this result the BC Court of Appeal provided the following reasons:
30]         Visibility was the most contentious issue. The trial judge found that the truck’s headlights would have been visible to the girls when they were on the dark hill and that there was no explanation for why they did not see the truck approaching. Mr. Brown testified that visibility was limited to 100-200 feet. He also testified that the light from his headlights projected 100-200 feet. He kept them on dim, as high beams reflected brightly off the snow. He could see streetlights several blocks ahead, but he could not see anything in between them. Critically, as he passed under a streetlight, the downward light reflected off the snow and made it difficult to see. He described his vision was blanketed, a whiteout, some of the worst conditions he had ever seen. Mr. Brown testified that he did not see the sled until he was halfway through the streetlight just west of the intersection. The trial judge found that if Mr. Brown was travelling 47 kph and visibility was 100 feet, he would not have been able to stop when an object came into view. However, he would have been able to stop in time if visibility was 200 feet. The trial judge found that it was not possible to determine which estimate of visibility was more accurate. The trial judge weighed the evidence and found she was unable to establish Mr. Brown was driving too fast for the road conditions. The plaintiffs had not met their burden. ..
32]         The evidence was unsatisfactory. The trial judge was alive to the “paucity of the evidence and its obvious frailties” (para. 95) and the difficulty faced by Ms. Armstrong and Ms. Scott in the circumstances as they bore the burden of proof. 
[33]         At the end of the day, the trial judge could not decide the very issues that had bearing on negligence. She could not say Mr. Brown was driving too fast for the road conditions having regard to all the circumstances. There was insufficient evidence to make key findings. She decided the case on the basis of who bore the burden of proof. The appellants failed to prove their case.
[34]         I find the trial judge made no palpable and overriding errors, and did not misapprehend evidence regarding visibility and speed. I would dismiss the appeals.