"It was the Deer's Fault" Defence Rejected in BC Injury Claim
Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, addressing the issue of fault for a single vehicle collision.
In today’s case (Bassi v. Bassi) the Plaintiffs were passengers in a vehicle driven by the Defendant. The Defendant lost control resulting in a roll-over crash. The passengers were injured and sued for compensation claiming the Defendant was careless. The Defendant argued that he was not and that he lost control due to a deer in the roadway. Mr. Justice Cullen found the Defendant entirely at fault for the crash and in doing so provided the following analysis:
[20] As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part. In my view, it does not. Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.
[21] In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer. The defendant said he swerved because he “got a little nervous.” It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances. There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.
[22] Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures – and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.
[23] Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.” It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual. Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway. There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”
[24] In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.” It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway. Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.
[25] The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right. There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.
[26] In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident. In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.
[27] I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left. I, therefore, find liability in favour of the plaintiffs.