Court of Appeal Discusses Standard of Care In Road Construction Liability Cases
Reasons for judgement were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80% responsible for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle through a construction zone when he drifted over the fogline to his right. There was a two inch drop off in the pavement level due to on-going construction. The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial judge found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care. The Defendants “failed to adhere to several of those standards“. In finding that this was an appropriate standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
[11] Sections 138 and 139 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138 On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139 On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
[12] The Ministry of Transportation’s Traffic Control Manual for Work on Roadways [the “Manual”] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways. Section 1.1 states that the examples provided within the Manual are “generally the minimum required”…
[45] As already noted, the trial judge held at para. 93 of her reasons that s. 138 of the Motor Vehicle Act and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances. (Although not specifically mentioned, s. 139 is of relevance as well.) She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para. 71:
[71] In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual. By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained. The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
[72] In my view, the defendants failed to adhere to several of those minimal standards. With respect to many of them, Mr. Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
[46] The errors identified by the appellants are findings of fact made by the trial judge. The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court. Those findings of fact are amply supported by the evidence. I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.