Tag: Link v. ICBC

BC Court of Appeal Confirms Negligence for Passing Vehicle Blanketing Others in Snow

Reasons for judgement were released today by the BC Court of Appeal confirming that a motorist can be negligent by passing others in poor conditions therby blanketing the other vehicles in snow.
In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.
At trial the Defendant vehicle was found at fault for the collision.  ICBC’s appeal was dismissed with the BC Court of Appeal finding negligence can exist in these circumstances.  The Court provided the following reasons:

[12]        It appears to me it was clearly open to the judge to find that the speed of the SUV was excessive for the conditions. The plaintiff was travelling 40 to 60 kilometers per hour and, on his examination for discovery (the whole transcript of which ICBC put in evidence), he said the SUV “roared right by” and suggested it was twice as fast as he was “putting along”. He agreed that could have been 100 kilometers an hour, although he said he could not speculate because it all happened so fast. There was, of course, no evidence to the contrary and common sense dictates that, as any driver would know, the greater the speed of a vehicle the greater the amount of snow it may throw up when changing lanes on a snow-covered highway. It simply could not be said that if the SUV had passed more slowly and had not cut in front of the Jaguar as quickly as it did, the windshield of the Jaguar would have been completely obscured as it was. The speed of the SUV was excessive for the conditions because of the effect its speed had.

[13]        In my view, no error has been shown in the judge’s concluding that, in what he described as the “treacherous” conditions prevailing, the driver of the SUV had not met the standard of care required of him in the circumstances. That vehicle was required to be operated with due care and attention and with reasonable consideration for the plaintiff who was driving the Jaguar at a slow speed in the right-hand land. If undertaken, the passing and change of lanes was required to be done safely without adversely affecting the travel of that vehicle. It was open to the judge to conclude as he did the driver of the SUV knew or ought to have known the risk that was inherent in his operating that vehicle as he did. Clearly the standard of care was breached.

[14]        It follows that I would dismiss the appeal.

Motorist Liable for Collision After Blanketing Other Vehicle in Snow

Update December 16, 2015the reasoning in the below decison was upheld by the BC Court of Appeal today.
Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for a single vehicle collision.
In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.
In finding the passing vehicle was fully at fault for passing when it was unsafe to do so Mr. Justice Ball provided the following reasons:

[17]         To determine whether the driver of the SUV was negligent, the Court must follow the analysis outlined in Crocker and Rowe. The driver of the SUV, as the driver of a vehicle overtaking another vehicle on the highway, owed a duty of care to the plaintiff. That duty is statutorily mandated in ss. 157-159 of the MVA.

[18]         Those sections also outline the required standard of care. Section 157 requires that the driver of an overtaking vehicle may only pass another vehicle on the left side “at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle”. Section 159 states that “a driver of a vehicle must not drive to the left side of roadway when overtaking and passing another vehicle unless the driver can do so safely.”

[19]         In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have – or should have – appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.

[20]         There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.

[21]         Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.

[22]         No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.

[23]         In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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