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.

 

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.

In Billabong Road and Maintenance Inc. v Brook, the Plaintiff was involved in a single vehicle accident, when his car left the highway after hitting black ice. The Plaintiff claimed that the road maintenance company had failed to apply sand to the road. The Court found both the Plaintiff and the road maintenance company to be at fault. In discussing the law of road contractor liability in British Columbia, the Court commented that :

 

[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.

 

[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….

 

[27]    On the facts of this case, the appellant’s course of action on the morning of February 17, 2007 was based on a combination of policy and operational decisions. It was a policy set by the Provincial Government that slippery road conditions must be remedied with the application of abrasives such as sand within the time frames described in s. 3.1.1 (b) of the contract. While s. 3.1.1(a) requires the contractor to deploy trucks at least 60 minutes in advance of the Weather Event as forecasted, it is not required to restore traction to all the affected roads immediately. Instead, s. 3.1.1(b) provides that as soon as the deficiency or problem is detected by the contractor or is brought to the contractor’s attention, restoration of traction in that area must be completed within the specified time limits. Those time limits are a matter of policy and are not reviewable by the court. However, the manner in which the appellant went about completing the restoration of traction on the roadways is an operational decision that is subject to the private law standard of care.

 

[28]      The appellant argues that it met the contractual requirements because it restored traction over the black ice on Highway 16E within three hours of the deficiency coming to its attention. Further, the appellant argues that it cannot be faulted for prioritizing hills and corners because that is a policy set by the Provincial Government in the contract.

 

[29]      On my reading of the contract, s. 3.1.1(b) requires the contractor to prioritize the hills and corners during a snowfall event and after a snowfall event. However, there is no similar requirement to give priority to hills and curves when addressing freezing rain and black ice. In these situations, all locations are given equal priority and must be completed within a certain time depending on the classification of the roadway.