In Gaebel v. Lipka, the Plaintiff was a passenger in a motor vehicle where the driver lost control of the vehicle, and eventually crashed, causing injury to the Plaintiff.

 

The Plaintiff commenced formal legal proceedings. At trial, the Justice ruled that the Defendant did not drive onto the shoulder of the road, and did not breach the requisite standard of care when he lost control of the vehicle. Consequently, the Plaintiff’s claim was dismissed. The trial Justice also ruled that the Plaintiff did not prove that the accident caused any injury to him. The Plaintiff appealed.

 

Counsel for the Plaintiff argued that the trial Justice’s ruling that the Defendant did not drive onto the shoulder of the road was a palpable and overriding error. Further, it was argued that the trial Justice committed an error of law by misapprehending the principles of the law of negligence.

 

The Court of Appeal found that the ruling that the Defendant did not drive onto the shoulder of the road was clearly an error, and was contrary to the evidence presented at trial.

 

The Court of Appeal also ruled that the Defendant had not advanced any explanation as to how the accident may have occurred absent negligence on his part, and subsequently was deemed liable for the accident.

 

The Court of Appeal allowed the appeal, set aside the original dismissal of the Plaintiff’s claim, found the Defendant liable for the accident, and ordered a new trial with respect to the Plaintiff’s damages assessment.

 

[28]         The uncontradicted evidence establishes that Mr. Lipka lost control of the vehicle when he caused it to encroach onto the shoulder of the road. Mr. Lipka was fully familiar with the road. He drove it on a daily basis. He was aware of the soft shoulder. His practice was to move to the right while approaching the curve where the accident occurred. He had, however, never previously driven onto the shoulder or lost control of his vehicle

 

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

 

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

 

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.

 

In Brook v. Tod Estate, the Plaintiff was injured in a car accident, and brought ICBC claims for damages. The matters of liability and quantum were severed, with the liability trial being heard first. One of the Defendants made an unsafe lane change, forcing another Defendant to swerve to avoid a collision. In an effort to do so, this latter Defendant swerved into oncoming traffic, thereby striking the Plaintiff head on. The Plaintiff was injured, and brought ICBC claims for damages against both Defendants. The Court held that the Defendant who made the unsafe lane change was negligent, however the Defendant who swerved to avoid the collision was not negligent in any way.

 

[27]         Counsel has submitted that it was Mr. Brook who faced the agony of collision and yet his evasive efforts, although fruitless, have not been characterized as negligence. On the other hand it is argued Mr. Tod had choices available to him and his circumstances cannot be properly characterized as the agony of collision. Notwithstanding the able arguments of Ms. Goodrick’s counsel, I do not agree that Mr. Tod did not face an agonizing choice with no time to make a considered decision. I have found Ms. Goodrick’s vehicle intruded into the fast lane already occupied by Mr. Tod’s vehicle. She began her lane change and simultaneously saw Mr. Tod’s vehicle overlapping hers by several feet. It was not realistic to expect Mr. Tod to make an instantaneous decision to accept a collision, no matter how minor it might in retrospect have been, with Ms. Goodrick’s vehicle. In the negligible time available to Mr. Tod, he cannot have been expected to weigh that fine calculation. It is true he could have braked. One difficulty with that proposition is that it cannot be now known if he both braked and swerved. What we do know from the evidence of Mr. Leggett is that Mr. Tod was travelling at a safe speed. He did not create the danger that caused him to react in the agony of the moment. If there had been a collision between his car and Ms. Goodrick’s car, we cannot know if one or both of those cars would have lost control leading to this accident.

 

[28]         Mr. Garner for the plaintiff submits Mr. Tod had a higher standard of care imposed on him because Ms. Goodrick’s car had an “N” plate on the back indicating she was a novice driver. I doubt if the presence of that letter on a car changes the standard of care of other drivers, but in any event, Mr. Tod was driving with reasonable care before he was cut off by Ms. Goodrick’s failure to see his car before beginning her lane change. It is not open to this Court to criticize the agonizing choice made by Mr. Tod in the last two or three seconds of his life as he attempted to avoid an accident which I find was caused solely by the negligence of the defendant, Ms. Goodrick.

 

[29]         The action against Mr. Tod is dismissed.

In Vo and Ta v. Michl, the Plaintiff was injured when in a rear end collision when struck from behind by the Defendant, and consequently brought an ICBC claim for damages. The only issue before the Court in this particular instance was liability. The Plaintiff turned onto a street, and traversed the street to the left hand turn lane. Icy road conditions existed at the time. The Defendant, traveling along the road in the same direction as the Plaintiff had turned, and attempted to brake for several seconds before colliding with the rear of the Plaintiff’s vehicle. The Plaintiff was injured, and brought an ICBC claim for damages. The Defendant attempted to invoke the doctrine of agony of collision as a defence, citing icy road conditions, however the Court rejected this line of argument, holding the Defendant 100% responsible for the accident. The Court stated that the Defendant was well aware of the icy road conditions, and had not adjusted his driving accordingly.

 

[16]         I accept that Mr. Vo had his left turn signal on at that point which was his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes but because of the road conditions did not slow appreciably before impact. The road conditions were apparent to him as he had been driving in those conditions. He knew it was icy. This is not a case, for example, of their being a patch of “black ice” in otherwise deceptively benign conditions, as was the case in Borthwick v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.).

 

[17]         Mr. Michl was negligent in driving too quickly for the road conditions in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in turning onto Kingsway were sudden and precipitous, as in some of the other cases referenced by the defence.

 

[18]         The defendant raises s. 151(a), and 170 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations, B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the position of the westbound traffic before he made this turn from the parked position onto Kingsway, and the westbound vehicles were well back at that point. The defence has said all that could be said to support their position, however, in my opinion Mr. Michl is 100% to blame for the accident.

In Robbins v Webb, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages. The Plaintiff began to “fishtail” on slippery roads. The Defendant responded by hitting his brakes, which caused the Defendant’s vehicle to veer into the Plaintiff’s path, causing a collision. The Court dealt with a liability trial only. The Plaintiff’s claim was dismissed, with the Court finding that the Defendant’s reaction was not inappropriate under the circumstances.

 

[12]           I find that the most reliable evidence is that of Mr. Cameron. He was first on the scene and has no relationship to either party. He observed the tire tracks leading from the Silverado before anyone else was on the scene (and before anyone could have observed Mr. Webb kicking snow, if he did kick snow). His statement to ICBC was misleading as to the location of the tracks, but he clarified that in evidence at trial. I have no doubt that what he meant to convey to the ICBC adjuster is what he said in evidence at trial: skid marks from the Silverado pickup originated in the centre of the southbound lane. I accept this evidence over that of Mr. Hudson as Mr. Cameron would have been in a better position to observe the truck’s tire tracks prior to their being affected by other vehicles arriving on the scene or any other change from the passage of time.

 

[13]           Thus, I accept that Mr. Webb was fully in his own southbound lane when he first commenced braking. I also find that the reason Mr. Webb applied his brakes hard, locking them and causing his vehicle to slide into the northbound lane, was because Mr. Robbins had temporarily lost control of his vehicle due to the poor tread on the Cobalt’s tires coupled with his driving too fast for the icy road conditions, which caused the left rear of the Cobalt to skid sideways in a clockwise direction, crossing partially into the southbound lane. Mr. Webb reacted to a situation precipitated by Mr. Robbins, not the other way around.

 

[14]           It may well be that if Mr. Webb had not braked, his vehicle would not have skidded into the oncoming lane. Mr. Robbins was probably in the process of regaining control of the Cobalt when he was struck. But, in the heat of the moment, one cannot say that Mr. Webb’s reaction was inappropriate. To his right was a steep uphill bank, so his options were very limited. He reacted to the position he found himself in as a result of the negligence of Mr. Robbins.

“Agony of collision”, or “agony of the moment”, is a defence that can sometimes be successfully plead in ICBC claims. The doctrine provides that a person, who through no fault of his or her own, is placed in a sudden emergency, is not negligent if that person exhibits a degree of care which a reasonably prudent person would have exhibited under the same or similar circumstances. The defence will allow a person who is faced with a sudden emergency to make a choice which would not have been acceptable in a non-emergency situation, and even in retrospect, if it was not the best choice of those available. The defence is commonly plead in ICBC claims involving motor vehicle accidents on icy roads.

 

In Chow-Hidasi v Hidasi, the Plaintiff was injured in a car accident, and brought an ICBC claim for damages. The Plaintiff was a passenger who sued the Defendant for “overdriving the road conditions” in a single vehicle accident, after the vehicle struck two concrete posts. The Defendant blamed the accident on a sudden mechanical failure. The Court dealt with a liability only trial brought by way of a summary trial application. The Plaintiff’s claim was dismissed. The Court commented on the doctrine of “agony” of collision.

 

[23]           There remain two issues. They engage what are sometimes referred to as the notions of “inevitable accident” and the “agony of the moment”. Although these concepts often arise together, they are distinct. The former posits a non-tortious explanation for an accident. In the matter at hand that explanation is, according to the defendant, the sudden loss of steering and braking ability. Such a mechanical failure is only non-tortious if it could not have been prevented by the exercise of reasonable care. If the exercise of reasonable care could or would have revealed the mechanical problem, then a driver is not absolved of responsibility when the problem becomes manifest. His or her negligence remains a cause of the accident, albeit the negligence rests, at least in part, on a different footing, namely a failure to exercise reasonable care in inspecting and maintaining the vehicle as opposed to negligence in the manner of driving.

 

[24]           Even if a defendant experiences a sudden mechanical failure which occurred in spite of the exercise of reasonable care in maintaining and servicing a vehicle, that is not necessarily an end of the matter. The issue that remains is whether the defendant exercised reasonable care in responding to the emergency. It is in this way that the concepts of inevitable accident and the agony of collision often arise in the same circumstances. The doctrine of agony of collision does not deal with the cause of or explanation for an accident; rather, it is a summary way of expressing the standard of reasonable care required of a driver faced with an emergency. In Lloyd v. Fox 1991 CanLII 1007 (BC CA), (1991), 57 B.C.L.R. (2d) 332 (C.A.), the essence of the doctrine was succinctly captured by Hinds J.A. who wrote that:

 

…when considering circumstances which could give rise to the application of the doctrine of agony of the collision, attention should be focused on whether the actions taken by the driver who seeks to raise the doctrine were the actions of a reasonably competent driver. If so, he or she may be absolved of fault; if not, the driver’s fault…(at p. 336).

 

Relief from legal responsibility may result because as Paperny J. explained In Moseley v. Spray Lakes Sawmills (1980) Ltd. 1997 CanLII 14730 (AB QB), (1997), 47 Alta. L.R. (3d) 217 at para. 53:

 

…The doctrine relieves a driver from having to exercise extraordinary skill, presence of mind, poise or self control when an emergency situation is created by another driver and that means errors of judgment on the part of the plaintiff driver may be excused…

 

There are limitations on availability of the doctrine. It is unlikely to prevail if the person seeking to invoke it caused or contributed to the emergency situation. In the context of this case, that may arise if the manner in which Mr. Hidasi maintained or serviced his vehicle was itself negligent or if his speed or the condition of his tires were contributory causes of the accident. I have concluded that neither speed nor the condition of his tires were contributory causes of the accident, but there remains the issue of the manner in which he maintained his vehicle, and his driving subsequent to the failure of his breaks and steering.

 

[45]           I am not satisfied the defendant’s reaction to the circumstances he unexpectedly faced was unreasonable. First, there is no suggestion that Mr. Hidasi was in some fashion shocked into inaction and delayed responding to what he reasonably perceived as an emergency. To the contrary, all of the evidence suggests that he responded immediately. Second, it may well have been that if Mr. Hidasi was a stronger individual or simply redoubled his efforts at attempting to manually steer and manually brake the vehicle he would have been successful. I do not accept that he knew that, or should have known that. Rather, I find that he tried his level best to steer and brake. He perceived that both of these options were ineffective and he needed to adopt an alternative course and do that quickly. From his perspective he had two options: either do nothing or engage the emergency brake. Choosing the latter was not an unreasonable course of action. When it gave rise to unexpected consequences and in effect created a further danger, Mr. Hidasi responded to that. He immediately disengaged the emergency brake. By that point, however, he was unable to alter the path of travel of the vehicle and the collision occurred. It may be that the vehicle would have tracked around the curve it was on without difficulty if Mr. Hidasi had done nothing. It may also be that had he geared down using the automatic transmission he would have been able to stop the vehicle without incident. It may be that adopting either or both of those courses of action would have been better than adopting the course that Mr. Hidasi did. This issue is not whether he took the best course of action, but whether he responded reasonably, bearing in mind the tolerance the law affords to what might be described as errors in judgment committed by a driver faced with an emergency situation.

 

[46]           In conclusion, I am not satisfied the plaintiff has proven the defendant was negligent and the action is accordingly dismissed.