When the driver of a vehicle strikes an animal in the roadway and injures their passengers they can only successfully sue for damages (a tort claim) if it can be demonstrated that the driver did something careless. Sometimes collisions with animals are unavoidable even with the most careful driving and in these cases injury lawsuits against drivers get dismissed. Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Freidooni v. Freidooni) the Plaintiff was injured when the vehicle she was occupying struck a deer. The Plaintiff was sitting in the passenger seat. Her husband was driving. They were travelling in the left of two westbound lanes on a highway. The speed limit was 110 kmph but the defendant was driving, in cruise control, at 130 kmph. To the right of the highway was an ‘open field with no trees or shrubs that would preclude an individual from seeing animals next to the travelled protiomn of (the) Highway“, There was vegetation to the left of the highway that “could have impeded the defendant’s view of deer in that areal“.
There were no vehicles which limited the driver’s view. A deer entered the Defendant’s lane of travel and the collision occurred. Neither he nor the Plaintiff saw the deer before impact. The Defendant said he was not at fault in these circumstances arguing that “it cannot be determined with any certainty as to whether the deer entered the westbound lanes of Highway No. 16 from the open area to the north, that being the open field to the defendant’s right, or whether it emerged from the vegetation to the defendant’s left“.
Mr. Justice Shabbits disagreed with the Defendant and found him entirely at fault. In coming to this conclusion he noted as follows:
 The defendant submits that it has not been shown that the deer did not emerge from cover in the median of the roadway, and that since neither the plaintiff nor the defendant saw the deer before the collision, it cannot be inferred that the defendant could have seen the deer in sufficient time to avoid the impact.
 The evidence, however, is unequivocal in that the deer approached the defendant’s vehicle from its right. Even if it had initially emerged from the median of the roadway, it must have crossed entirely over the lane in which the defendant was driving before turning and re-entering the defendant’s lane of travel. Alternatively, the deer emerged from the open field to the right of the highway. I am of the opinion that in either case, the defendant’s failure to see the deer was negligent. The only explanation as to why he did not see the deer is that he was not paying attention to the roadway. The defendant was on cruise control on a wide roadway in perfect conditions with no other traffic about. By his own account, he was drinking coffee and listening to music. In my opinion, the reason why he did not see the deer on the roadway was that he was not paying attention. He was not paying attention because he did not expect anything to be there.
 The accident occurred in an area where there is wildlife. The defendant knew that.
 In White v. Webster, Esson J.A. says that the question comes down to this. He says it was a virtually unavoidable inference that there was some absence of look out on the part of the driver. I am of the same opinion in this case. The defendant was not paying attention. He did not see the deer when he should have seen it. He took no evasive action to avoid the impact when he should have been able to do that.
 I find that the defendant was negligent. He is liable for the accident.
When the driver of a vehicle injures passengers by colliding with an animal in British Columbia the passengers should be cautious before giving a statement to the driver’s insurance company addressing the issue of fault. As I’ve previously written, if any issues of carelessness are glossed over in the statement it will certainly be used against you if you later seek to advance a tort claim for compensation for your injuries.