In Chow-Hidasi v. Hidasi, the Plaintiff was a passenger in a vehicle driven by her husband, which lost control on slippery roads, and crashed into two concrete barriers. The Plaintiff sustained injuries, and consequently brought an ICBC claim for damages for pain and suffering, economic loss, and future care. The Plaintiff alleged that her husband was traveling at an excessive rate of speed, and that the tires had insufficient tread. ICBC’S lawyer argued that the Court should determine that the accident occurred due to events beyond the Defendant’s control i.e. there was a mechanical failure. The matter proceeded via a summary trial route, with the trial judge ruling that there could not be a finding of negligence against the Defendant, a ruling that was upheld by the British Columbia Court of Appeal.

 

[40] I am satisfied that the manner in which Mr. Hidasi maintained his vehicle was reasonable. I am satisfied that the brake and steering failure he experienced was unexpected and was not discoverable through the exercise of reasonable care.

 

[44] Moreover, if the defendant had simply done nothing, it is likely the vehicle would have continued to track around the gentle curve it was in and come to rest without incident. She argues that applying the emergency brake, particularly with the force that the defendant applied it, was negligent and caused the accident. Finally, she argues that Mr. Hidasi should have geared down using the automatic transmission to slow the vehicle down.

 

[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.

In Sikora v. Brown, two people were returning home in a vehicle. Although both had had some drinks, they were not seriously intoxicated. As the car passed through an intersection, the steering wheel began to shake. The driver of the vehicle asked the passenger to feel the steering wheel. Shortly after doing so, a collision ensued when the vehicle left the road, and went into a ditch. The parties made claims against each other for personal injury damages arising from the motor vehicle accident. The Court would eventually find that both the driver and passenger were equally to blame for the accident.

 

[38] I find that both parties were negligent and that they both contributed to causing the accident in equal measure. Ms. Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects. In somewhat precarious circumstances, she invited Mr. Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle. She did not slow down when he held the steering wheel for several seconds. She lost control of the vehicle after he let go of the wheel.

[39] Mr. Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms. Sikora’s comments about the problems with her vehicle’s steering, that his actions could affect Ms. Sikora’s ability to control the vehicle. I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise. I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking. He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle.

 

In McKenzie v. Mills, the Plaintiff was injured as a passenger when the vehicle she was in went off the road, however she could not remember how the accident exactly happened. The Plaintiff consequently brought an ICBC claim for damages for pain and suffering and other heads of damages, alleging negligence against the driver of the vehicle. The Defendant denied being liable in any way, arguing that there was no evidence to prove that the accident was caused by the Defendant‘s negligence. The Court, however, disagreed, stating that negligence could be inferred.

 

[30] Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability. See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:

The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident. In such cases, the plaintiff bears the burden of proof. The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized: see paras. 23-24.

[31] However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident. The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane. The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction. While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived. The only reasonable inference to draw is that the defendant was driving while drunk.

[32] I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant. The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.

In Nason v Nunes, the British Columbia Court of Appeal upheld a trial judge’s ruling that the Defendant was not negligent for a single vehicle accident when he lost control of his truck during winter driving conditions. The Court discussed the issue of what inferences can be drawn from single vehicle accidents.

 

[6]               Major J., speaking for the Court, began his analysis by explaining the meaning of res ipsa loquitur in Canada.  He quoted with apparent approval from Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), who wrote that the doctrine applied where a defendant had sole control of the thing (“res”) that inflicted the damage complained of, and the occurrence was such that it could not normally have happened without negligence on the part of the defendant.  The authors noted that there were three alternative views as to the legal effect of res ipsa loquitur, but that:

 

Res ipsa loquitur, correctly understood, means that circumstantial evidence constitutes reasonable evidence of negligence.  Accordingly, the plaintiff is able to overcome a motion for a non-suit and the trial judge is required to instruct the jury on the issue of negligence.  The jury may, but need not, find negligence: a permissible fact inference.  If, at the conclusion of the case, it would be equally reasonable to infer negligence or no negligence, the plaintiff will lose since he or she bears the legal burden on this issue.  Under this construction, the maxim is superfluous.  It can be treated simply as a case of circumstantial evidence.

 

A different construction of the doctrine is that the defendant has an evidential burden to adduce some evidence of a lack of negligence.  In the absence of evidence to the contrary, the trier of fact must find for the plaintiff on the negligence issue: a compelled fact determination.  If the defendant adduces sufficient evidence of no negligence to satisfy this evidential burden, the plaintiff bears the legal burden on the issue of negligence.  The third possible construction is that both the evidential and legal burdens rest on the defendant to disprove negligence to a balance of probabilities.

 

Since the maxim often leads to confusion, its use might be abandoned and replaced by language that accurately conveys the evidentiary effect of unexplained circumstantial evidence from which negligence may be inferred.  [At 81-2; emphasis added.]

 

[14]            More importantly for the plaintiffs’ submission, the Court in Fontaine clearly rejected the argument that an inference of negligence arises (as a matter of law) whenever a vehicle goes off the road in a single-car accident.  Major J. stated:

 

The appellant submitted that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single-vehicle accident.  This bald proposition ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case: see Gauthier & Co., supra, at p. 150.  The position advanced by the appellant would virtually subject the defendant to strict liability in cases such as the present one. [At para. 35; emphasis added.]

 

(Arguably, strict liability is also the logical extension of the “foot pace” reasoning in Laurie v. Raglan Bldg., quoted above.)  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 Fontaineat 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.”

 

[15]            I read Savinkoff, then, simply as an instance of an appellate court’s finding that the findings of fact made below were clearly wrong.  (See para. 20.)  Such is not the case here, where no basis has been shown for us to interfere with Russell J.’s findings that the defendant was driving at a reasonable speed and in an otherwise reasonable manner.  As Gibbs J. A. said for this court in Phillips v. Lyle [1990] B.C.J. No. 212:

 

Here, where there was evidence to support the findings of fact made in the trial judgment, the appellant could only succeed on the basis of inferences which ought to have been, but were not, drawn by the trial judge. For my part, I have not found any instance in the evidence where, on liability, the trial judgment can be found to be in error by reason of improperly drawn inferences. To infer is not synonymous with to speculate. An inference is defined as a fact or proposition deduced as a logical consequence from other facts already proven or admitted.

In McPhee v. HMTQ et al, the Plaintiff was seriously injured in a single vehicle accident in which he was the driver and lone occupant when his car left the highway. The Plaintiff could not recall how the accident specifically happened, however alleged that it must have been the case that there had been black ice on the highway, which had caused him to lose control of his vehicle. He alleged that one of the Defendants, Mainroad Contracting Ltd. was negligent in failing to have carried out an obligation to the traveling public to salt and sand the highway and maintain it in a safe condition for users of the road. There were no witnesses to the accident, however there was competing expert evidence adduced at trial from accident reconstructionists. Meteorological evidence was also adduced as to the nature of the weather around the time of the accident. Issues for the Court to consider were whether or not black ice was present at the time of the accident; whether or not the Defendant Mainland breached its’ standard of care and, if so, whether this caused the accident, and whether or not, if the Defendant Mainland was negligent, the Plaintiff was contributorily negligent.

 

[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 Caldwell v. Ignas, the Plaintiff was a passenger in a vehicle that allegedly slipped on black ice, causing injuries to the Plaintiff. The Plaintiff consequently brought an ICBC claim, seeking damages for pain and suffering, as well as various other types of damages. ICBC’S lawyer brought a summary trial application to have the matter dismissed, claiming that the Defendant was not negligent in any way. In the alternative, ICBC’S lawyer sought an order from the Court that the Plaintiff‘s claim be dismissed because the Plaintiff could not show that the Defendant‘s actions in fact caused the Plaintiff‘s injuries. After reviewing the law applicable to claims of such a nature, and applying the facts from the present case to such law, the Court dismissed ICBC’S lawyer application.

 

[24]           In order to prove negligence, the plaintiff must establish that the defendant owed the plaintiff a duty of care, that the defendant failed to meet the applicable standard of care, and the defendants’ failure to do so caused the plaintiff damage.  There is no shift in the onus of proving negligence on the defendants simply because they bring this application under Rule 18A.  In addition, the mere fact that the defendant driver’s vehicle left the roadway is not prima facie evidence of negligence and not all accidents will necessary arise because of negligence, and in determining whether or not negligence has occurred, the trier of fact must weigh the circumstantial evidence with the direct evidence to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence.

 

[37]           I have concluded that the plaintiff has indeed met this test based on the following:

1.         A reasonably prudent driver ought to have been aware of winter driving conditions and of possible icy conditions on the road and adjusted his driving accordingly;

2.         The defendant in fact was aware, from his own driving experience and as shown by his statements before the accident to the plaintiff, of winter driving conditions and of possible icy conditions on the road;

3.         The evidence shows that the accident was probably caused by the defendant’s excessive speed, not because of ice;

4.         The defendant has admitted to speeding at all material times leading up to the accident;

5.         The defendant has admitted to further exceeding the speed limit by accelerating his vehicle in the corner, at which point he lost control of his vehicle;

6.         The defendant has admitted to the plaintiff on numerous occasions after this accident that, in his opinion, the major reason why he lost control of his vehicle was because of speeding; and

7.         The ambulance Unit Chief, Richard Mackenzie, does not recall being called to any other accidents at this location on the date in question.

[38]           Having admitted to speeding being the major reason for why he lost control, the defendant has not provided a reasonable explanation for the accident that is consistent with no negligence as with negligence and, therefore, cannot fit himself within the reasoning of Madam Justice Russell when she concluded that the plaintiff in her decision had failed to establish negligence on the part of the defendant.  Simply put, the defendant driver was negligent when he exceeded the posted speed limit and it was the excessive speed that caused the accident in question.  He failed to take the reasonable stop of slowing down while navigating a curve in the winter time in northern British Columbia.