Why a Driver Isn't Always at Fault For Losing Control
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:
 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?
 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.
 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.
 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.
 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.
 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.
 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.