In Lee v. Phan, the Plaintiff was injured as a pedestrian when struck by another vehicle on wintery roads. The Plaintiff had exited the vehicle on the driver’s side in an attempt to retrieve groceries from the car. The Defendant, believing that the Plaintiff may be about to jaywalk, hit the brakes and attempted to swerve and avoid the Plaintiff and her car, but, in so doing, struck the Plaintiff after sliding on wintery roads. The Court did not believe there should be any contributory negligence on the part of the Plaintiff, and found the Defendant fully liable for the accident.

 

[56] Both parties cited a number of cases involving collisions with pedestrians at crosswalks or collisions where wintery conditions were a significant factor. In view of my finding that Ms. Lee made no attempt to cross Renfrew Street I do not find the crosswalk or jaywalking cases to be particularly helpful. The winter driving cases establish little more than the general proposition that drivers should adjust their driving and use caution appropriate to the conditions.

 

[64] Mr. Phan testified that he turned his vehicle into the snowbank because he felt this was his only option given his conclusion that Ms. Lee was about to jaywalk in front of him. This, I have found, was an erroneous conclusion. Had he continued straight ahead there would have been no collision. Mr. Phan also seems to have been under the impression that one should never apply the brakes of a vehicle in icy conditions. This is obviously wrong, as the appropriate response is to apply cyclical braking, as confirmed by the plaintiff’s engineer, Mr. Rempel. For all of these reasons I conclude that Mr. Phan was negligent.

[65] As for Ms. Lee, I am unable to accept the defendant’s suggestion that she ought to be found to be contributorily negligent. She was not in a place that posed a hazard or obstruction to traffic, she was wearing a white coat and she was facing in the correct direction towards oncoming traffic. The defendant has not established that Ms. Lee had any realistic opportunity to get out of the way. I see no negligence on her part.

In Johns v Friesen, the Plaintiff was a passenger in a car driven by the Defendant, who lost control of the vehicle on black ice. The Plaintiff was injured, and brought an ICBC claim for damages for pain and suffering. The parties agreed on ICBC settlement amount prior to trial, leaving the Court to only adjudicate on the issue of liability. The Court dismissed the Plaintiff’s claim, holding that the Defendant was not negligent in any way.

 

[4]               The defendants plead that the defendant Friesen was not negligent, or alternatively, that the accident was inevitable.

 

[5]               The plaintiff, defendant Friesen, and Constable Rioux (who attended the accident site) all testified and appeared credible. They did not exhibit much disagreement as to what they had observed.

 

[6]               This is not a case of res ipsa loquitor. The Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, instructs us that the applicability of the doctrine of res ipsa loquitor should be treated as having expired. In any event, the use of this doctrine was always restricted to cases where the reason for the accident was unknown, and the circumstantial evidence provided no other reasonable explanation.

 

[7]               In the case at bar, there is both direct and circumstantial evidence establishing the cause of the accident. Both occupants of the Truck survived the accident and were able to testify about the exact moment that the Truck skidded out of control. Constable Rioux was able to corroborate the cause of the skid as being due to black ice.

 

[8]               The plaintiff bears the burden of showing on a balance of probabilities that the defendant Friesen breached the standard of care of a prudent driver in the circumstances and that this breach caused the plaintiff’s injuries.

 

[35]           In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

 

[36]           The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch,2008 BCSC 295 (CanLII), 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

 

[37]           In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

In Geiger v Schmidt, the Plaintiff was a passenger in a motor vehicle. She asked the driver to slow down due to icy conditions, which he did. She asked him to slow down some more, but before he was able to, the car spun out of control and struck the same median twice. The Court held that the Defendant was not negligent.

 

[43]      The plaintiff acknowledges the defendant responded to the conditions with his speed decrease. But in effect, she says that when she cautioned him to lessen his speed further because she felt he was driving too fast for the conditions, his duty to take all reasonable precautions obliged him to lower his speed further. The plaintiff points to her considerable experience driving in snow and suggests she was a good judge of a safe speed in those conditions. However, I note the defendant also had considerable experience driving in the snow.

 

[44]       In my view, given the fact the defendant was attuned to the conditions he was facing and had responded to them by lowering his speed by almost one-third, the negligence question in this case comes down to deciding whether he failed to exercise all reasonable care because he failed to comply with the plaintiff’s suggestion by lowering his speed and transferring the driveline to four wheel drive before he lost control. In other words, did exercising all reasonable precautions encompass disregarding his own assessment and complying with the plaintiff’s suggestion?

 

[45]      In some circumstances, reasonable drivers assessing driving conditions would consider the suggestions of passengers, especially when the driver is inexperienced or less familiar with the road then the passenger. In many cases, the passenger’s recommendation will correspond with the most objectively reasonable precaution.

 

[46]         However, the driver is ultimately responsible for assessing the objective conditions and responding in a reasonable way. In the circumstances of this case, I find the defendant’s failure to follow the plaintiff’s suggestion to slow down and transfer to four-wheel drive is not sufficient to satisfy the plaintiff’s burden of establishing the defendant was negligent.

 

[47]         Further, I heard no evidence of what speed would be low enough in the conditions the defendant was facing to prevent a loss of control and the spin outs that followed. There was no evidence to show that, had the defendant switched into four-wheel drive or reduced his speed, he could have avoided the accident. A judge can take judicial notice of the natural correlation between higher speed and decreased traction; but such common knowledge does not licence a leap from that to a conclusion the defendant likely would have avoided the accident if the plaintiff had agreed with the plaintiff and lowered his speed.

 

[48]         This is not a case of a driver ignoring passenger pleas to slow down while driving at a speed all reasonably cautious drivers would consider unsafe in the circumstances.

 

[49]         The standard of care is not perfection. There is no evidence the defendant was inattentive or indifferent to road conditions. His decision to delay transferring to four wheel drive until he felt ready doing so was not unreasonable. The vehicle was equipped with snow tires. The temperature was around 4 degrees centigrade. The defendant was exercising reasonable caution by driving a full 30 kph below the posted speed limit.

 

In Bhangal v Sloan, the Plaintiff was injured when the Defendant’s vehicle slid through a stop sign on icy road. The lawyer for ICBC argued that the Defendant was not negligent, as he could not stop because of the icy conditions on the road. The Court dismissed the Plaintiff’s claim, and this was upheld by the Court of Appeal.

 

[10]           In Nason v. Nunes, 2008 BCCA 203 (CanLII), 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, 1996 CanLII 3367 (BC CA), [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

 

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”

 

[11]           Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.  

 

[12]          I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

 

[13]          Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

In McPhee v HMTQ et al., the Plaintiff was the lone occupant of a single vehicle accident, with the Plaintiff claiming that he had lost of control of his vehicle after skidding on black ice. The Plaintiff’s claim was dismissed, with the trial judge’s ruling being upheld by the Court of Appeal. The Supreme Court had commented that:

 

[83]           The issues which arise in this action are:

 

1. Was there black ice present at the site and time of the accident?

2. Was Mainland in breach of a standard of care in not detecting the ice and in failing to apply winter abrasives or de-icing chemicals?

3. If Mainland was in breach of a standard of care, was that breach the cause of the accident?

4. If Mainland was negligent, was Mr. McPhee contributorily negligent?

5. If so, what is the measure of damages suffered by Mr. McPhee?

 

[84]           In advancing this issue the plaintiff has the onus to prove that it is more probable than not that black ice formed on this area of Highway 17 ……  It is more than choosing between two reasonable possibilities.  In assessing this question I have considered a number of matters.

 

[85]           Unlike the evidence in a number of the reported cases, in the present case there is little contemporaneous observation of the accident site at the time the accident occurred.

 

[93]           There is further circumstantial evidence that, other than for the salting of the Albion Ferry docks, Mainroad received no calls advising it of the presence of ice.  As well, the Deas Highway RCMP detachment received no reports of icy or slippery conditions or related accidents.

 

[94]           Of some further but modest evidential value is evidence that there was traffic proceeding over Highway 17 to and from the ferries, but no reports of black ice or other incidents were made to the police or to Mainroad.

 

[95]           Although some witnesses gave evidence relating to the presence of animals on the road in the past, there is no evidence to take that possibility beyond the realm of speculation in this case.

 

[96]           Having regard to these matters and the whole of the evidence that I have referred to above, I conclude that the plaintiff has not proven that the presence of black ice on Highway 17 on the morning of January 31, 1998 is more probable than not.  Absent that proof, the other issues set out above cannot succeed in this action.

 

[97]           There can be no doubt that the accident has had a devastating impact upon Mr. McPhee.  I must conclude, however, that Mr. McPhee cannot succeed in this action against the defendants.  The evidence does not support a conclusion that it is more probable than not that black ice was present on the road at the time of the January 31, 1998, accident.  Absent that proof, the other issues cannot succeed.  In the result the action is dismissed.  If the parties cannot agree on the issue of costs they may make written submissions through the registry