Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a negligence lawsuit against a bus driver who collided with a moose.
In today’s case (Tran v. Anderson) the Defendant was operating a Greyhound bus on June 22, 2011. He was travelling above the posted speed limit. A moose appeared “suddenly out of the foliage to the right of the highway, about 20 feet in front of the bus“. The Court found that the Defendant had no time to react in these circumstances and even if was travelling at the posted speed limit the result would have been the same.
In dismissing the negligence claim Madam Justice Adair provided the following reasons:
Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, addressing the duties of a motorist after colliding with an animal.
In today’s case (Ziemver v. Wheeler) a motorist struck a moose on the Alaska Highway. It was “fully dark” at the time. The moose lay dead or wounded when a subsequent motorist travelling in the same direction struck the animal, lost control and collided with an oncoming vehicle.
Multiple lawsuits were commenced. The Court found that, given visibility issues, none of the motorists were responsible for striking the moose. However, the first motorist was found liable for the subsequent collisions for failing to warn other motorists about the injured or dead moose in the roadway. In reaching this conclusion Madam Justice Watchuk provided the following reasons:  A driver who has collided with wildlife must take reasonable steps to preclude the possibility of another vehicle colliding with that wildlife. The actions which will constitute reasonable steps will vary depending on the circumstances. The time available to the driver who has collided with the wildlife is an important factor to consider in assessing reasonableness. ..  Warning other motorists of the hazard that he had good reason to believe was lying on the road was a duty. The duty arose at the time that he hit the moose. Not utilising the available 9 minutes to fulfill that duty was a breach of his duty. That breach caused the collisions between Mr. Walter and the moose and the Walter-Ziemer vehicles. ..
 Mr. Wheeler failed to take any reasonable or entirely possible steps over the period of approximately 9 minutes before the third collision. He did not return to the scene until a minimum of 21 minutes had passed. I find that in these circumstances, his failure to take any steps to warn other motorists of the hazard posed by the moose carcass fell below the standard of care.
 I further find that but for Mr. Wheeler’s failure to warn other motorists, the Walter-Ziemer collision would not have occurred or would have been likely to result in significantly decreased injury.
 This is not a case like Fajardo, in which the collision would have occurred even if the defendant driver had taken reasonable steps to warn other motorists (at para. 40). Unlike in Fajardo, the hazard in this case did not take up the entire highway lane. Further, because the weather was clear and Mr. Walter and Mr. Ziemer could see each other approaching, it is unlikely that they would have collided if they had taken evasive action to avoid the moose, which also distinguishes this collision from the accident in Fajardo.
 Most importantly, I find that both Mr. Ziemer and Mr. Walter would have been likely to avoid or lessen the impact of the collision if they had been warned that there was an approaching hazard. I accept Mr. Walter’s evidence that he would have slowed if he had seen flashing lights which he would have understood as a warning. I also find that Mr. Ziemer was an attentive driver and that he would have been likely to respond to a warning signal from Mr. Wheeler. Both of these findings are supported by the persuasive expert evidence of Dr. Droll which indicated the ways in reasonable drivers could be assisted by roadside warnings of an upcoming hazard.
 In conclusion, I find that Mr. Wheeler breached his duty to warn other motorists of the hazard posed by the moose carcass, and that this caused the Walter-Ziemer collision.
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.
If you would like further information or require assistance, please get in touch.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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