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ICBC Ordered to Cover Damages for Corvette Crash at Western Speedway

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, discussing the limits of the ICBC coverage exclusion for crashes which occur during “performance driver training”
In today’s case (Nye v. ICBC) the Plaintiff was the owner of a Corvette.  He joined the Victoria Corvette Club which arranged for a private autocross event at the Western Speedway.  While participating in this event the Plaintiff crashed his vehicle with the Court summarizing the collision as follows:
[13] The plaintiff experienced no problems with the course until he came to a series of turns around some pylons placed several metres apart.  He entered that part of the course without difficulty and he safely manoeuvred around all of the pylons except for the last one.  As he attempted to complete his turn around the last pylon he felt he was too close to it and he said that when he attempted to put his foot on the brake pedal to slow down his foot slipped off the brake pedal and onto the accelerator causing his vehicle to lurch forward.  As a result he momentarily lost control and the vehicle collided with a concrete retaining wall.  The plaintiff was shaken up, but not injured; however, his car was severely damaged.
The Plaintiff had collision coverage with ICBC but they refused to cover the loss arguing the crash occurred during a ‘speed test‘ during ‘performance driver training‘.  Mr. Justice Bracken rejected ICBC’s arguments and ordered the damages to be covered finding that while the collision did occur during ‘advanced driving training‘ there was no element of a speed test at the time.  The Court provided the following reasons:

[19] Section 2(1) of the Regulation states:

Unless otherwise provided in a special coverage certificate, the Act and this regulation do not apply in respect of

…

(f)         a vehicle being used in a contest, show or race, or in advanced or performance driver training, if

(i)         the activity is held or conducted on a track or other location temporarily or permanently closed to all other vehicle traffic, and

(ii)        there exists an element of race or speed test.

…

(2)        In subsection (1)(f), “element of race or speed test” means driving at high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[37] On the evidence, I am satisfied that the activity in which the vehicle was used was an event that can fairly be described as advanced driver training.  An instructor was available and did introduce the plaintiff to the course in his first slow drive around the course.  A club session was held in advance to provide guidance to participants on how to drive the course.  The plaintiff did not actually receive any direct instruction on how to handle his vehicle on the course; however, there was some general guidance on what he should expect…

[39] I am also satisfied on the evidence that the event was held on a closed track.  While there was evidence of one non-participating vehicle intruding onto the track during the plaintiff’s first run, it was clear that the vehicle should not have been there and that the driver had proceeded past a flag person or club member stationed at the entry point for the purpose of keeping non-participants off the course…

[41] The remaining issue is whether the defendant has proven that there was an element of race or speed test in the event.  To repeat, the defendant must establish that

… there exists an element of race or speed test, which means driving at a high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[49] Here, the evidence does not support the conclusion that the plaintiff was assessing his vehicle’s limitations in speed, acceleration, turning or braking.  I find he was driving his vehicle well within its limitations of speed and turning, and I accept his evidence that the accident resulted when his foot slipped from the brake to the accelerator, causing the vehicle to accelerate directly into the retaining wall.

[50] In the result, I find the defendant has failed to establish that the plaintiff was operating his vehicle in breach of the Regulation or his insurance policy.  I find that he is entitled to coverage under his own damage provisions of the policy of insurance issued by the defendant.

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