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:
 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.
 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.
Update July 20, 2016 – the below decision was overturned today by the BC Court of Appeal.
Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that it is negligent for a motorist to not drive ‘as quickly and as reasonably as possible‘ when overtaking another vehicle on a highway.
In today’s case (Borgiford v. Thue) the Plaintiff vehicle was in the left hand lane of a highway overtaking tractor-trailers who were travelling at a low rate of speed as they ascended a steep hill. The Plaintiff vehicle’s motorist was a ‘timid’ driver and was overtaking the slow moving vehicles at a speed of 85 kmph despite a speed limit of 110 kmph. At the same time a Suburban approached the vehicles at a high rate of speed, clipped one of the slow moving tractor-trailers and lost control resulting in apparent profound injuries to his passengers.
The Court found the speeding motorist clearly negligent but went on to find the slow passing plaintiff vehicle was also negligent for not passing the tractor trailers as quickly as possible. In reaching this finding Mr. Justice Rogers provided the following reasons:  In my view, the standard of care owed by a reasonable and prudent driver in Mrs. Boizard’s situation required that hypothetical driver to overtake Mr. Einarson’s unit as quickly as reasonably possible. I find that is the standard because the speed limit on the highway was 110 kph and any reasonable operator on that road would have known that motorists often go faster, sometimes much faster, than the speed limit. A reasonable driver in Mrs. Boizard’s situation would have known that for so long as he was in the left-most lane the entire width of the highway was occupied by relatively slow moving traffic. A motorist approaching from the rear and traveling at 110 kph would find his way blocked by the slower vehicle in the left-most lane.
 I must therefore ask myself: was Mrs. Boizard overtaking Mr. Einarson as quickly as reasonably possible? Here Mr. Fiorin’s opinion does not really help Mrs. Boizard. That is because the key element of Mr. Foirin’s opinion is that operators of large vehicles are entitled to take steps to keep up the momentum of their units as they ascend a hill. That may be true, but it does not apply to Mrs. Boizard. That is because on Mrs. Boizard’s own evidence the pickup truck she was driving was capable of going up Larson Hill faster than 85 kph. This was not a case of the Boizard truck struggling to keep up its speed of 80 to 85 kph. This was a case of Mrs. Boizard making a conscious and deliberate decision to not go faster than 85 kph.
 I do not doubt Mrs. Boizard’s sincerity when she testifies that she felt that it was safer to go 85 kph while passing Mr. Einarson. However, her subjective opinion cannot carry the day. The real question is whether a reasonable and prudent motorist in her situation could have and would have overtaken Mr. Einarson more quickly. The evidence does not satisfy me that a higher speed for the camper while passing would, in fact, have created an unsafe circumstance for either the Boizards or Mr. Einarson. I am thoroughly satisfied, however, that clearing the left-most lane would have created a safer circumstance for other motorists approaching from the rear. Put another way, the less time that Mrs. Boizard stayed in the left-most lane, the safer it would be for other, faster traveling, motorists who also wished to overtake Mr. Einarson’s unit.
 In short, I find that Mrs. Boizard was a timid driver – she could have driven her camper faster and could have overtaken Mr. Einarson’s tractor-trailer more quickly. Instead, Mrs. Boizard chose to drive at a relatively leisurely pace and in so doing, she blocked the left-most lane for a longer period of time than was reasonably necessary. I find that Mrs. Boizard’s decision to drive as slowly as she did and to occupy the overtaking lane for as long as she did fell below the standard of care that she owed to other users of the highway. I find that she was negligent in that regard.
 The question now arises whether either of Mrs. Boizard’s negligent acts was a cause of the accident. As we know from Athey it is not necessary that Mrs. Boizard’s negligence be the sole cause of the accident. The law is also clear that causation is not determined by which of the defendants had the last clear chance to avoid the mishap. All that is necessary is for Mrs. Boizard’s negligence to be a cause; that is to say, but for her negligence, the accident would not have happened.
 In my view, the link between Mrs. Boizard’s negligence in changing lanes as she did is too weak to support a finding that that particular act caused the accident. I have come to that conclusion because the Thue Suburban was not in sight when Mrs. Boizard changed lanes. The Suburban came around the first curve on Larson Hill after Mrs. Boizard was in the left-most lane. The lane change itself did not put Mr. Thue and his passengers in jeopardy.
 However, had Mrs. Boizard accelerated her camper to a reasonable overtaking speed, she would have blocked the overtaking lane for a shorter period of time. Given that when the accident happened the camper was at the junction between Mr. Einarson’s tractor and trailer, it would not have taken much more speed on Mrs. Boizard’s part to have gotten past Mr. Einarson ahead of Mr. Thue’s arrival. In my opinion, there is a sufficient causal link between Mrs. Boizard’s decision to overtake at a leisurely pace and the accident to support a finding that but for that decision, the accident may not have happened. Put another way, in order for the accident to have happened the way it did, it was necessary for Mrs. Boizard to have blocked the overtaking lane.
Update December 16, 2015 – the 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:
 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.
 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.”
 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.
 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.
 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.
 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.
 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.
Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.
In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle. The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles. At the same time the Defendant commenced a left hand turn into her driveway. Both motorists were found at fault with the Plaintiff shouldering 75% of the blame. In reaching this decision Mr. Justice Weatherill provided the following reasons:  Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted. She ought reasonably to have been alive to the possibility of a passing vehicle. She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn. If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have.  Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely. I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident. Each is partly liable for the accident.  I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision. It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left. The Truck/Trailer’s left turn signal should have been evident to him. It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass. The plaintiff did not do so.  In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook. The defendant William Joseph Cook is vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of theMotor Vehicle Act.
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing fault for a collision involving a vehicle overtaking another.
In last week’s case (Shallow v. Dyksterhuis) the Defendant was driving behind the Plaintiff when the Plaintiff vehicle slowed near an intersection. The Defendant attempted to pass the vehicle by overtaking it on the oncoming lanes. At the same the time the Plaintiff attempted a left hand turn and a collision occurred. In finding the Defendant fully liable for the collision Mr. Justice Kelleher provided the following reasons:  The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C. Ms. Orcutt was driving south on the Alaska Highway, Highway 97. She intended to turn left onto an access road, two kilometers south of the junction with Highway 29.  Highway 97 has one southbound lane in this area. However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection. The intersection is not controlled by a traffic light. The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane.  The accident occurred at 8:30 a.m. There was daylight. The roads were covered with snow and it was continuing to snow. Visibility was satisfactory. Ms. Orcutt testified that she had her left turn signal on. As she commenced her turn, the defendant’s vehicle struck her vehicle as he was attempting to overtake her by passing her on the left.  The defendant testified that he was driving south in a loaded logging truck. He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John. This was his second load of the day.  Mr. Dyksterhuis testified that he was travelling in the one southbound lane. He noticed the plaintiff’s car driving south in front of him. He saw the vehicle slow down and saw that the brake lights were coming on and off. Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there. He presumed, then, that the plaintiff was either turning right or stopping on the highway.  The defendant decided it was safe to pull out and pass her on the left. As he came up on her left, she began her left turn. His front bumper struck her vehicle. .. 25] There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone. There was a solid double yellow line on the highway, but it was covered with snow.  Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt. First, he was in a no passing zone. Second, he wrongly assumed that she was not able to turn left at that place. Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her.  The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)). The defendant did not dispute the ticket. Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).  The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame. This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn.  I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care. She was making a lawful left turn. She was in an area where passing was not permitted. She was in the left turn lane. The defendant did not sound his horn to warn her.  Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault following a two vehicle collision.
In last week’s case (Rackstraw v. Robertson) the Plaintiff was involved in a collision with a tractor trailer. The tractor trailer was travelling Northbound on Mount Lehman Road. The Plaintiff was travelling eastbound on Sunset Crescent which forms a T-intersection with Mount Lehman Road.
The Defendant “decided to pass a northbound vehicle ahead of him”. To do so he accelerated above the speed limit and had to travel in the southbound lane. As he did so he saw the Plaintiff approach the intersection and run the stop sign which was facing him on Sunset Crescent. The vehicles collided and the Plaintiff died shortly after.
Ultimately the Plaintiff was found fully at fault for the collision. In reaching this conclusion Madam Justice Fisher provided the following reasons: Mr. Rackstraw owed a duty of care to other drivers travelling on Mount Lehman Road, in particular Mr. Robertson. He breached that duty by failing to stop at the stop sign, failing to keep a proper lookout and failing to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road. Mr. Rackstraw was the servient driver at all times…  …. the fact that Robertson was travelling over the speed limit will only constitute negligence if his speed is what prevented him from taking reasonable evasive action: see Cooper v. Garrett, 2009 BCSC 35 at para. 42. In my view, there is no evidence which establishes that Robertson’s speed prevented him from doing so. His truck was just about at the intersection when he first saw Rackstraw’s vehicle, and only his trailer, or part of it, was still in the southbound lane when the impact occurred…  …it is my opinion that the accident in the case at bar was caused solely by the failure of Mr. Rackstraw to stop at the stop sign, to keep a proper lookout and to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road. When Robertson started his pass, there was no reason for him to believe that he could not do so safely or that he would interfere with the travel of another vehicle. As in Ferguson, he was engaged in a lawful manoeuvre. He did not see, and could not reasonably have seen, the Rackstraw vehicle until he was just about at the intersection and he had no reasonable opportunity to avoid the collision.
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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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