Category: Road Contractor Liability

Road Maintenance Company 80% Liable For Uneven Pavement In Construction Zone

Quite often in ICBC claims or other claims involving icy conditions, not only will the owner and driver of the other car be named as Defendants, but so will road maintenance companies.

 

In Van Tent v. Abbotsford (City), the Plaintiff was a motorcyclist who was injured when riding through a construction zone. The accident occurred when he rode his motorcycle over the fog line before riding over a two inch drop off in the pavement, wherein he lost control and was injured. The Plaintiff was held to be 20% liable, however the Defendant was mostly liable for failing to adequately mark the uneven pavement. In upholding the trial judge’s interpretation of the proper standard of care to be applied, the British Columbia Court of Appeal commented that:

 

[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.

 

Expert Evidence Addressing Standard Of Care Required In Road Maintenance Cases

In Collins v. Rees, the Plaintiff was injured when she lost control of her vehicle in icy conditions, slammed into the side of the Massey tunnel, and then was struck by another vehicle.  She brought a claim for damages against the road maintenance company, alleging that they did not take proper steps to prevent the build up of ice. The Court dismissed the claim, holding that there was no evidence to prove that icy conditions caused the loss of control, and further commented that cases like the one at bar must adduce expert evidence addressing the standard of care in order to be successful.

 

[36]         With respect to the issue of standard of care, I can find nothing in the record which could be said to constitute evidence going to prove the applicable standard of care of the defendants. To find that on the evidence before this court would require guesswork and speculation. I am unable to infer that standard from the evidentiary record.

 

[37]         Inference is the exercise of reaching a logical conclusion by reasoning from proven facts. Here, the proven facts from which the inference could be drawn are not present.

 

[38]         Insofar as applying my own knowledge of every day matters, that would not be an appropriate way to deal with this issue. Decisions as to the proper steps, measures and procedures to sign and maintain a highway system in a large metropolitan community are undoubtedly complex things. I am sure that engineers have spent their entire lives working on those very issues. The same applies with respect to issues such as drainage and vapour barriers. It is not reasonable to expect that a trial judge, as a layperson, will draw the inferences to establish this element. It is clearly a matter that requires expert evidence.

 

[39]         Accordingly, I find the plaintiff has adduced no evidence with respect to the element of the applicable standard of care and, as well, the issue of the defendants’ failure to meet that standard of care and that, therefore, the defendants’ applications must succeed.