Negligence Claims Against Road Maintenance Companies
If a private contractor fails to clear ice, snow or other hazards on a roadway in British Columbia and this leads to a collision they can, depending on the circumstnaces, be sued for damages in negligence. This topic was discussed in reasons for judgement released yesterday by the BC Supreme Court, Smithers Registry.
In yesterday’s case (Billabong Road & Bridge Maintenance Inc. v. Brook) the Plaintiff was involved in a single vehicle collision on Highway 16E near Smithers, BC. She lost control of her vehicle on black-ice and left the roadway. At the time the Defendant had the contract with the Provincial Government to maintain that stretch of highway. They did not sand the road and the Plaintiff sued claiming they were at fault for the crash. The Defendant argued that the Plaintiff drove carelessly and was solely to blame for the crash.
At trial the presiding Judge found both the Plaintiff and Defendant were at fault. The road maintenance company appealed arguing that the Judge imposed an unfair standard on them. The appeal was dismissed with the BC Supreme Court finding that the contractor did not respond appropriately to the known slippery conditions. While the outcome of these cases are highly fact driven Madam Justice Bruce provided the following useful reasons discussing the law of road contractor liability in British Columbia:
[25] Where the Province delegates responsibility for road maintenance to a private contractor, the contractor inherits the same Crown immunity for policy decisions, but continues to be liable under private law for negligence arising out of operational decisions. For example, where the contract with the Provincial Government specifies that particular road work must be completed within two hours of certain events, compliance with this standard is sufficient to clothe the contractor with immunity for any claim in negligence by a pedestrian or motorist. This is because the time frame for the completion of the work is a matter of policy set by the Provincial Government after balancing the costs associated with the work with the need to ensure the safety of the travelling public. As Meiklem J. says in Holbrook v. Argo Road Maintenance Inc., [1996] B.C.J. No. 1855 (S.C.) at paras. 27-28:
[27] On the analysis prescribed by the majority of the Supreme Court of Canada in the Just and Brown cases, policy decisions of the Crown are not reviewable and in Brown it was expressly held that decisions as to the level of road maintenance are decisions of policy and cannot be reviewed on a private law standard of reasonableness. They are only reviewable if so irrational as not to be a proper exercise of discretion.
[28] The application of these principles of course allows the government ministry to indirectly establish the upper limits of the standard of care that they are then held to in their operational functions. Thus the courts defer in a substantial way to the government ministry and the operational standard of care slides up and down the scale according to the level of road maintenance that is set as a matter of policy. Thus if a private law standard of reasonableness in a certain storm condition might suggest hourly patrols but policy has set the frequency of patrols at daily, the latter would prevail as the applicable standard in a negligence action against the Ministry.
[26] On the other hand, where the negligence arises out of an operational decision, and is not based on a standard of care established as a matter of policy by the terms of the contract with the Provincial Government, a contractor must meet the private law standard. The Court of Appeal described this operational standard of care in Benoit v. Farrell Estate, 2004 BCCA 348 at para. 39:
[39] The parties agree that Mainroad’s duty is coterminous with the Crown’s duty of care to users of public highways in respect of operational matters. They agree that the decision whether to apply salt to Highway #4 was an operational decision and that the duty of Mainroad was to take reasonable care to prevent injury to users of the highway by icy conditions: Brown v. British Columbia, [1994] 1 S.C.R. 420 at 439. The standard of care in respect of highway maintenance was more recently described in Housen v. Nikolaisen at para. 38, quoting from Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):
…the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety. What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances….