Plaintiff’S Claim Fails Against Maintenance Company For Accident On Black Ice

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

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