In Knight v. Knight, a man and his wife were traveling on a highway when they collided with a moose. The Plaintiff passenger, the wife, was seriously injured in the accident, and brought an ICBC action against her husband. The Defendant denied any negligence, pleading the defence of inevitable accident, however the Court found the Defendant wholly liable for the accident, finding that he failed to meet the required standard of care under the circumstances. The Plaintiff would eventually be awarded non-pecuniary damages, as well as damages for diminished earning capacity, future care, past care, and loss of housekeeping capacity, in a total award of more than $3,000,000.00.

 

[48] I conclude that Mr. Knight was operating his vehicle in a negligent manner on the night of October 22, 2008. I find that given the time of the year and the time of day and the presence of moose warnings signs on Highway 37, Mr. Knight was negligent in failing to slow his vehicle and in failing to take any extra precautions to keep a look out for the presence of moose on or near the highway.

 

[49] I also find that he was negligent when he failed to immediately slow his vehicle when he observed something crossing in front of the headlights of Mr. Thomas’s oncoming truck.

 

[50] In my view a reasonable person in Mr. Knight’s position would have immediately taken steps to slow his vehicle when he saw the headlights of the oncoming vehicle black out. I find that Mr. Knight was aware that something was obstructing the lights of the oncoming vehicle. Given the other factors I have already outlined – the warning that moose might be present on the highway, the time of day, and the fact that October is in the rutting season when moose are more likely to be present – I conclude that a reasonable driver would have realized that there was a material risk that it was an animal that was obstructing the lights and would immediately have applied his brakes and slowed his vehicle until he had ascertained what was causing the obstruction. I find that it was negligent of Mr. Knight not do so.

In Racy v Leask, the passenger of a vehicle sued the driver after sustaining injuries in a collision with a moose. The Court held that the driver was not negligent.

 

[82]           In this case, Ms. Leask was travelling in her own lane of travel when she encountered the two moose at the side of the road after rounding a corner or bend in the road. She did not end up in the oncoming traffic lane. She had little time to react. The two moose continued to move towards the travelled portion of the highway from the shoulder area. Ms. Leask adopted a course of action she felt presented the least amount of risk in the circumstances, by applying her brakes but not slamming them on and by not swerving in either direction and thereby hitting one or other of the moose head on. Ms. Leask’s explanation offered in this case, if an explanation is necessary, argues her counsel, is that the moose were moving onto the highway as she rounded the bend in the highway and there was not enough time to do anything other than what Ms. Leask did, especially considering that she was already travelling at a rate of speed below the posted speed limit.

 

[83]           In this case, the presumption of negligence does not arise and the onus remains on the plaintiff to establish negligence on the part of the defendant. The issue then is whether the plaintiff has proven on a balance of probabilities the defendant was negligent in operating her vehicle when it struck the two moose.

 

[100]      In this case, Ms. Leask acted immediately and appropriately upon first encountering the moose. Upon rounding the bend or corner in the road and seeing the moose, she gave a warning to Ms. Racy and at the same time applied the brakes to slow the vehicle as best she could without risking swerving in either direction. The two moose were not standing in the lane of travel but were moving toward it from the shoulder on the right hand side of the highway. The road conditions were dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated. Rather, they were caught in the range of the headlights. There is no evidence as to what the range of the headlights on high beam for this model of vehicle is in this case. Ms. Leask was driving at least 10 km/h below the posted speed limit and was in all likelihood travelling at a speed of between 85 and 90 km/h. Ms. Leask reduced her speed to take into account the driving conditions including the fact that it was dark and the possibility of encountering wildlife.

 

[101]      Significantly, and as in Pitt Enterprises and Fajardo, there is no evidence of what speed Ms. Leask would have to have been travelling at to have been able to stop her truck once the two moose became visible to her. Nor is there any evidence as to how far the defendant’s lights would have illuminated the highway in this case, something available in the case of Pitt Enterprises.

 

[102]      In addition, the collision in this case did not occur in an area that could be described as a “moose alley” where it is more probable than not that moose will be found. While an accident may have occurred a year before in the same general area where a driver struck a moose, there is no other evidence to suggest this is an area where it is more probable than not that moose will be found. Ms. Leask was aware there might be wildlife in the area and had adjusted her speed accordingly and was wary of the possibility.

 

[103]      As soon as Ms. Leask saw the moose she applied her brakes, but not with enough force to completely avoid colliding with the moose. I accept her evidence that the moose were fairly close to the vehicle, within the beam of the vehicle headlights, when she first encountered them and that they continued to move from the shoulder area to the vehicle’s lane of travel. Despite her efforts to avoid a collision by applying the brakes and maintaining a straight path, instead of swerving in either direction, the collision with the moose calf could not be avoided.

 

[104]      Considering all the circumstances in this case, I conclude that the collision with the moose was not occasioned by any negligence or want of care on the part of Ms. Leask. I find that Ms. Leask was not driving at an excessive speed given the conditions. I also find that she was not negligent in failing to apply the vehicle brakes more forcefully or in failing to take any other evasive action such as pulling or swerving to the right or the left of her lane of travel. To have done so no doubt would have resulted in much graver consequences: a head on collision with either the mother moose or the calf. The plaintiff has failed to establish on a balance of probabilities the defendant was negligent in her response to seeing the moose on the highway. Accordingly, the plaintiff’s case fails and the action must be dismissed.

In Bassi v Bassi, the passengers again sued the driver for injuries, this time for a collision with a deer. The driver said that the presence of a deer on the highway caused him to lose control of the vehicle, however the Court found him negligent for the accident.

 

[20]           As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part.  In my view, it does not.  Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.

 

[21]           In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer.  The defendant said he swerved because he “got a little nervous.”  It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances.  There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.

 

[22]           Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures – and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.

 

[23]           Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.”  It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual.  Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway.  There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”

 

[24]           In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.”  It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway.  Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.

 

[25]           The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right.  There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.

 

[26]           In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident.  In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.

 

[27]           I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left.  I, therefore, find liability in favour of the plaintiffs.

In Freidooni v Freidooni, the passenger, the wife of the driver, sued the driver for injuries sustained in a collision with a deer. The Court found the husband at fault.

 

[19]           The plaintiff submits that the defendant’s negligence lies in failing to see what was there to be seen.  In White v. Webster 2003 BCCA 118 (CanLII), 2003 BCCA 118, Esson, J.A. delivers oral reasons for the Court of Appeal.  He finds that there was serious fault on the part of the part of the owners of a cow that had escaped onto a highway.  He says the operator of a truck that took evasive action to avoid the cow “had little reason to anticipate that a cow, or anything else, would show up in front of his truck.”  Esson, J.A. said this: 

 

However, the question whether Mr. White’s lack of care for his own safety comes down this.  By his own evidence, he did not see the cow until he was so close to it that he decided that he had to take the violent avoiding action which he took, which led to the truck leaving the road.  Having regard to those facts, it was, in my view, a virtually unavoidable inference that there was some absence of look out on the part of Mr. White.

 

[24] The evidence, however, is unequivocal in that the deer approached the defendant’s vehicle from its right.  Even if it had initially emerged from the median of the roadway, it must have crossed entirely over the lane in which the defendant was driving before turning and re-entering the defendant’s lane of travel.  Alternatively, the deer emerged from the open field to the right of the highway.  I am of the opinion that in either case, the defendant’s failure to see the deer was negligent.  The only explanation as to why he did not see the deer is that he was not paying attention to the roadway.  The defendant was on cruise control on a wide roadway in perfect conditions with no other traffic about.  By his own account, he was drinking coffee and listening to music.  In my opinion, the reason why he did not see the deer on the roadway was that he was not paying attention.  He was not paying attention because he did not expect anything to be there.

 

[25] The accident occurred in an area where there is wildlife.  The defendant knew that.

 

[26] In White v. Webster, Esson J.A. says that the question comes down to this.  He says it was a virtually unavoidable inference that there was some absence of look out on the part of the driver.  I am of the same opinion in this case.  The defendant was not paying attention.  He did not see the deer when he should have seen it.  He took no evasive action to avoid the impact when he should have been able to do that.