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No negligence defences in motor vehicle accident cases

This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.

 

It has been said that “there are situations where the facts merely whisper negligence, but there are other circumstances where they shout it aloud”[1], and certainly no type of accident shouts negligence louder than a rear end accident. However, in the recent case of Singleton v. Morris, 2010 BCCA 48 the British Columbia Court of Appeal affirmed the trial judge’s finding[2] that Ms. Morris was not negligent despite having rear ended Ms. Singleton at the bottom of a steep hill after a sudden downpour on the Sunshine Coast. Ms. Morris’s explanation was that there was oil on the road which was invisible to her as she approached it, and that but for the oil she would have been able to stop in time to avoid the accident. That explanation succeeded and the case raises again the principles to be applied when considering unusual fact patterns that allow defendants to assert the no negligence defences of “inevitable accident” and “explanation”.   
 
This article reviews and compares the defences of explanation and inevitable accident, considers the evidentiary rules to be applied in cases involving circumstantial evidence.
 
The defences of inevitable accident and explanation both involve defendants pointing to some factor apparently beyond their control as the cause of the accident, and arguing that the accident occurred without negligence on their part. Exculpatory factors range from the mundane (my brakes failed[3]) to the fantastical (a bird flew through my open window and hit me in the head[4]).
 
The defences of inevitable accident and explanation are similar, and sometimes confused[5], but can be distinguished on two grounds:
1.                  Whether the source of the excuse relied on by the defendant is internal or external to the defendant and his or her vehicle. 
2.                  The evidentiary burden to be met by the defendant.
 
Internal v. external cause
In Perry v. Banno (1993), 80 B.C.L.R. (2d) 351 (S.C.)[6] Brenner J. (as he then was) held that whether the defence of explanation or inevitable accident applies depends on whether the defendant claims that the accident was the result of a cause internal to the defendant or his vehicle (e.g. the defendant has a seizure; vehicle’s brakes fail) or a cause external to the defendant (e.g. black ice; oil on the road):
 
[I]f the accident occurs because of an external factor such as snow or ice on the road, the defense of explanation is open to the defendant. To rebut the inference of negligence with this defence, the defendant need only advance an explanation of how the collision may have occurred reasonably without negligence on his part. However, where such external factors are not present, the burden on the defendant is heavier and he must prove that the collision could not have been prevented by reasonable care on his part. 
(Perry v. Banno (1993), 80 B.C.L.R. (2d) 351 (S.C.)).
 
The approach of distinguishing the defences of inevitable accident and explanation based on whether the accident was caused by an internal or external factor has been followed in subsequent cases.[7]
 
Standard of evidentiary burden on the defendant
As indicated by the quote from Perry v. Banno above, a more stringent evidentiary burden is placed on the defendant in cases involving causes internal to the defendant (inevitable accident) than in cases involving causes external to the defendant (defence of explanation). Brenner J. explained the policy rationale for the different standards as follows:
 
The policy explanation for this distinction is clear: the courts will impose a higher burden of proof on a defendant whose defence is based on factors under the exclusive control of or wholly within the defendant himself. This was set out by the Ontario Court of Appeal in Graham v. Hodgkinson (1983), 40 O.R. (2d) 697 at 704:
 
It will be remembered that the defendant ran into the rear of the plaintiff's motor vehicle. It happened on a four-lane highway during daylight hours when traffic was heavy. There were no driving complications such as snow or rain or a dangerous road surface. As a result, in this case, there is a heavy burden on Mrs. Hodgkinson, the driver of the rear vehicle to demonstrate that there was no negligence on her part which caused or contributed to the accident.
 
(Perry v. Banno (1993), 80 B.C.L.R. (2d) 351 (S.C.)).
 
Indeed, in cases involving causes internal to the defendant or the defendant’s vehicle it has been held that the defendant must establish that the accident could not have been avoided even with the greatest of care and skill: 
 
In my opinion, a person relying on inevitable accident must shew that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care and skill.
(Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674 at 678 citing McIntosh v. Bell, [1932] O.R. 179 at 187 (Ont. C.A.)).
 
A motorist, who suffers from a disability of which he is aware, is under a very heavy duty to take the necessary precautions to avoid the possibility of his disability causing him to fall into a condition which would make it impossible for him to discharge the duty of care imposed upon him.
(Johnson v. Carter, 2007 BCSC 622 at para. 85[8] citing Boomer v. Penn (1965), 52 D.L.R. (2d) 673 at 679).
 
Even if the defendant can show that the internal factor occurred without want of care, the defence of inevitable accident will fail if it was reasonably possible to avoid the accident despite the occurrence of the inevitable contributing factor. For example, in Rintoul, supra, the defence failed because even if the service brakes in the defendant’s vehicle failed without negligence by the defendant the court found that the defendant could have avoided the accident by using the hand brake if it had been in proper working order.
 
Pleadings
It is sometimes said that the defence of explanation need not be pleaded but that the defence of inevitable accident must specifically be pleaded; Watt v. Miller (Nos. 1 & 2), [1950] 2 W.W.R. 1144 (B.C.S.C.) is sometimes cited in support of that proposition. In that case the defendant initially pleaded that the vehicle was in proper mechanical condition, but later wanted to argue that the accident was inevitable because it was caused by a mechanical defect which could not have been discovered with reasonable care. Not surprisingly given the initial pleading, the court held that the defendant could not advance the inevitable accident defence unless the statement of defence was amended. Rather than establishing a special rule of pleadings for inevitable accident that case is simply consistent with the fundamental rule of pleadings that all material facts should be pleaded. Indeed, where there is an identifiable circumstance supportive of the accident occurring without negligence by the defendant it should be described in the pleadings regardless of whether that circumstance is internal or external to the defendant.[9]
 
Prior to the decision of the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 cases involving only circumstantial evidence of negligence were deciding according to the doctrine of res ipsa loquitur. Because cases involving defences of inevitable accident and explanation often involve circumstantial evidence the expulsion of res ipsa loquitur from the law of Canada and the new approach to be followed is relevant to those defences.
 
Res ipsa loquitur, or “the thing speaks for itself”, arose from the decision in Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596 and permitted an inference of negligence to be drawn where, despite the absence of direct evidence of negligence, the circumstances of an accident were indicative of negligence. The doctrine was more recently explained as follows:
 
The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.
(Clerk & Lindsell on Torts (13th ed. 1969) at para. 967 quoted with approval in Jackson v. Millar, [1976] 1 S.C.R. 225 at 235 and Hellenius v. Lees, [1972] S.C.R. 165 at 172).
 
As explained by the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, and later the British Columbia Court of Appeal in Nason v. Nunes, 2008 BCCA 203[10], the doctrine of res ipsa loquitur was a rule primarily applied at the close of the plaintiff’ case to determine whether the defendant’s motion for non-suit should succeed where the plaintiff’s case was entirely circumstantial:
 
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. 
(Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 23 citing Sopinka, Lederman, and Bryant, The Law of Evidence in Canada (Markham: Butterworths, 1992) at 81).
 
[E]ven when res ipsa loquitur was alive and well, it applied only where the evidence was circumstantial, and in Canada, it created at most the drawing of an inference at the end of the plaintiff’s case that permitted, but did not require, the trier of fact to decide in favour of the plaintiff if no further evidence was adduced. 
(Nason v. Nunes, 2008 BCCA 203).
 
In Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 two hunters were found dead in their truck which had gone off a road and come to rest in a river bed. There was evidence that the area had experienced severe storms, but no direct evidence of negligence by the driver of the truck. The Supreme Court of Canada upheld the findings at trial that the plaintiff widow of the passenger had failed to establish negligence by the driver and that in that case the mere fact of the vehicle going off the road did not establish negligence. In the course of its reasons the Supreme Court of Canada explained that the doctrine of res ipsa loquitur was difficult to apply in practice:
 
As the application of res ipsa loquitur is highly dependent upon the circumstances proved in evidence, it is not possible to identify in advance the types of situations in which res ipsa loquitur will arise. The application of res ipsa loquitur in previous decisions may provide some guidance as to when an inference of negligence may be drawn, but it does not serve to establish definitive categories of when res ipsa loquitur will apply.
(Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 20).
 
The court explained that the doctrine was more confusing than helpful and should be discarded from the law of Canada:
 
Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.
(Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 26).
 
Given the problems with res ipsa loquitur identified by the Supreme Court of Canada in Fontaine counsel should be cautious in relying on pre-Fontaine cases, especially where those cases turned on whether the doctrine was found to apply or not. 
 
Although res ipsa loquitur no longer applies, the proper approach still involves considering whether an inference of negligence should be drawn from the evidence presented by the plaintiff such that explanatory evidence is needed from the defendant. But, more importantly, at the close of evidence the court should consider the circumstantial evidence presented by the plaintiff along with any explanatory evidence provided by the defendant and simply weigh the evidence as a whole:
 
[T]he trier of fact … should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.
(Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 27).
 
Each case turns on its own facts[11]:
 
[W]hether an inference of negligence can be drawn is highly dependent upon the circumstances of each case.
(Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 35).
 
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 … 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 ... such an inference will be “highly dependent 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.” 
(Nason v. Nunes, 2008 BCCA 203 at para. 14, emphasis in original).
 
The above stated principles were confirmed in Singleton v. Morris, 2010 BCCA 48. In that case the plaintiff relied on the rear-end nature of the accident to establish an inference of negligence, but in dismissing the plaintiff’s appeal the Court of Appeal held that the nature of the accident was merely circumstantial evidence from which the judge was entitled, but not required, to draw an inference of negligence: 
 
[I]n cases such as this, the trial judge may – but is not required to – draw an inference of negligence from the fact there was a rear-end collision. The defence, however, may attempt to rebut such inferences through the defence of explanation.  
(Singleton v. Morris, 2010 BCCA 48 at para. 38).
 
Although each case turns on its own facts, in Benoit v. Farrell Estate, 2004 BCCA 348, a case considering the contributory negligence of the driver who lost control on an icy road not properly maintained by a road maintenance contractor, the Court of Appeal cautioned against inferences of negligence in severe road and weather conditions: 
 
An inference of negligence should not usually be drawn on purely circumstantial evidence of the vehicle’s location when there is evidence of contemporaneous severe road and weather conditions.
(Benoit v. Farrell Estate, 2004 BCCA 348 at para. 75).
 
 
 
 
The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence. The legal burden of proof, of course, remains on the plaintiff throughout.
(Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318 at para. 10 (C.A.), emphasis added).
 
Wherever the court finds on all the evidence 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. 
(Nason v. Nunes, 2008 BCCA 203 at para. 14).
 
A defence of explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.) is an explanation of how an accident may have occurred without the defendant’s negligence. The defendant does not bear the onus of proving how the accident did happen. 
(Singleton v. Morris, 2010 BCCA 4 at para. 38, emphasis in original).
 
Indeed, where the probabilities are evenly balanced, the plaintiff’s claim will fail[12]:
 
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.
(Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 23 citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) at p. 81).
 
I find that the proven facts establish an explanation for the accident which is equally consistent with negligence, and with no negligence. The inference sought by the plaintiff therefore cannot be drawn. The onus of proving negligence remains with the plaintiff, and that onus has not been met. Accordingly, the plaintiff's case fails, and the action must be dismissed.
(McIntosh v. Maurer, 2005 BCCA 64 at para. 3 citing and approving of the legal test applied by the trial judge in that case; 2003 BCSC 775).
 
The table of cases included at the end of this article identifies situations in which no negligence defences based on factors internal and external to the defendant have succeeded and failed.
 
Although not restricted in application to cases involving inevitable accident or explanation, it is important to keep in mind the overarching principle that motorists are not required to anticipate all foreseeable road hazards, but only those that are reasonably foreseeable:
 
[T]he standard of care of a driver is not one of perfection, but whether the driver acted in a manner in which an ordinarily prudent person would act.
(Hadden v. Lynch, 2008 BCSC 295 at para. 69).
 
In my opinion, the defendant was exercising a degree of care that was commensurate with the risk that would have been apparent to an objectively reasonable driver.
(McIntosh v. Maurer, 2005 BCCA 64 at para. 3).
 
The test of reasonable forseeablity is an objective test that considers whether a reasonable driver should have anticipated the hazard in circumstances, not whether the defendant subjectively anticipated the hazard[13].
 
In Singleton v. Morris, 2010 BCCA 48 there was no direct evidence of the speed the defendant and the plaintiff’s claim ultimately failed because the explanation of oil on the road was sufficient to rebut the inference of negligence arising from the rear-end nature of the accident. However, the British Columbia Court of Appeal confirmed that a plaintiff may succeed in proving negligence on entirely circumstantial evidence:
 
In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case. Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.
(Singleton v. Morris, 2010 BCCA 48 at para. 33).
 
The general nature of an accident (whether it be a rear-end accident, a vehicle going off the road, a vehicle crossing the centerline into oncoming traffic, or otherwise) is only circumstantial evidence that may support an inference of negligence being drawn against the defendant. Whether or not an inference of negligence should be drawn from the evidence led by the plaintiff will depend on the particular facts of the case. The strength of the inference, if any, and therefore the merit of the explanation required from the defendant to rebut the inference, will depend on significance of the circumstantial evidence presented by the plaintiff.
 
Although the defences of inevitable accident and explanation are considered distinct, the processes of determining whether an inference should be drawn and then weighing the evidence as a whole is the same in each case. However, where the excuse for the accident provided by the defendant relates to factors internal to the defendant or the defendant’s vehicle, and therefore in the control of the defendant, the evidence required to rebut an inference of negligence needs to be especially compelling.
 
In all cases the burden of proving negligence remains on the plaintiff, and in the final analysis the court must simply consider all of the evidence (circumstantial and direct) and determine whether the plaintiff has proved negligence by the defendant.
 
 

The following cases, listed in date order starting with the most recent, identify situations in which no negligence defences based on factors internal and external to the defendant have succeeded and failed.
Case
Successful party
Factor
Case summary
Singleton v. Morris, 2010 BCCA 48
Defendant
Oil on the road
The plaintiff’s vehicle was rear ended by the defendant who failed to stop in time on a steep downhill when there was an unexpected oily substance on the road. The plaintiff relied on the rear-end nature of the accident to establish an inference of negligence, but the defendant’s explanation that she was unable to stop due to the presence of an oily substance on the road (of which there was clear evidence) was accepted.
Michel v. Doe, 2009 BCCA 225
Defendant
Rock in cargo
A pedestrian was struck by a baseball sized rock that flew off a logging truck as it travelled down the highway. In dismissing the plaintiff’s appeal the Court of Appeal affirmed the finding of the trial judge that the evidence was equally consistent with the possibility that the rock could have been missed without negligence during the driver’s pre-trip inspection, as with the possibility that it was somewhere it ought to have been discovered during the inspection. 
Mclaren v. Rice, 2009 BCSC 1457
Plaintiff
Vehicle defect
The plaintiff was seriously injured when the truck he was a passenger in went off the highway. Although there were mechanical problems with the vehicle, the court found that the vehicle went off the road because the defendant momentarily fell asleep. The court rejected the defendant’s explanation that the accident resulted from a not reasonably discoverable latent defect in the steering mechanism because the evidence led by the defendant did not meet the high burden required when the alleged cause of the accident is within the control of the defendant.
Clements (Litigation Guardian of) v. Clements, 2009 BCSC 112
Plaintiff
Medical condition
The plaintiff was severely injured when the motorcycle she was a passenger on crashed after the rear tire burst. The defendant argued that the loss of control was caused by a rapid deflation of the tire resulting from the sudden expulsion of a nail that had punctured the tire and that he was not negligent. Although the defendant was speeding, he argued that the rapid deflation would have resulted in a crash even at a lower speed and that the plaintiff had failed to prove causation. In finding the defendant liable the court held that although the rear tire deflated through no one’s fault, the defendant was driving too fast and with too heavy a load, and that those factors materially contributed to the inability of the defendant to maintain control after the tire deflated.
Nason v. Nunes, 2008 BCCA 203
Defendant
Bump on the road
The plaintiff was injured when the vehicle she was a passenger in went off the road in winter driving conditions. The vehicle fishtailed after hitting a “bump” between the road surface and a bridge. The Court of Appeal upheld the finding of the trial judge that the defendant drove with reasonable care and that any presumption of negligence was rebutted by the fact that the loss of control was initiated by bump in the road. The claim against the road maintenance contractor was dismissed on the basis that it had met the required standard of care and could not have reasonably foreseen that black ice would form on the road at the time of the accident.
Caldwell v. Ignas, 2007 BCSC 1228
Plaintiff
Ice
The plaintiff was injured when the vehicle he was a passenger in went off the road in winter conditions. The court found that the defendant, who was travelling 20 km/h over the speed limit, was driving too fast for the conditions. In finding the defendant liable the courted noted that there was no evidence of black ice actually being observed at the scene of the accident.
Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993
Plaintiff
Oncoming vehicle in wrong lane
The plaintiff cyclist went off the road after swerving to avoid an oncoming vehicle. The defendant argued that the plaintiff should be found contributorily negligent and that the court should draw an inference of negligence from plaintiff going off the road. The court held that any inference of negligence that might arise was clearly rebutted by the explanation that the plaintiff had to swerve to avoid the oncoming vehicle, and that the plaintiff was not contributorily negligent.
Clark v. Hebb, 2007 BCSC 883
Plaintiff
Object on the road
The plaintiff was injured when the vehicle he was a passenger in collided with a concrete barrier after swerving for an object, possibly a box, in the road. The defendant argued that she was not liable because the object was blocked from view by the truck she was travelling behind and that she only saw it after the truck swerved to avoid it. The court rejected that explanation and held that the driver was following too closely behind the truck and driving at a speed which made it difficult for her to react in sufficient time.
Johnson v. Carter, 2007 BCSC 622
Plaintiff
Medical condition
The defendant driver veered into the oncoming lane and collided with an oncoming vehicle, killing a passenger in that vehicle. The defendant was a diabetic and said that at the time of the accident he was not consciously in control of his vehicle due to hypoglycemia (low blood sugar). The court held that the defendant driver had the means to monitor his blood sugar and that he failed to take the necessary precautions to avoid the possibility of falling into a condition of hypoglycemia unawareness, and ultimately a hypoglycemic reaction resulting in unconsciousness.
Goodwin v. Goodwin et al., 2006 BCSC 218
Defendant
Ice
The plaintiff was a passenger in a vehicle that went off the road after sliding on black ice. A vehicle had earlier gone off the road in the same location and the court found that there was nothing to suggest to drivers that there would be black ice in that location and at that time. The plaintiff’s claim was dismissed.
McIntosh v. Maurer, 2005 BCCA 64
Defendant
Ice / animal
The plaintiff was injured when the vehicle she was a passenger in encountered a patch of black ice at about the same time the driver saw a wolf on the road ahead of her. In braking, or in attempting to avoid the wolf, the vehicle went off the road and the plaintiff was injured. The court found that the defendant had acted reasonably in the circumstances and was not liable.
Pitt Enterprises Ltd. v. Farkes, 2005 BCCA 511
Defendant
Animal
The defendant collided with a moose standing in his lane and that caused his vehicle to move into the oncoming lane and strike the plaintiff’s vehicle. The trial judge found that the defendant was not travelling too fast in the circumstances and that the accident would not necessarily have been avoided even if the defendant had been travelling at the speed suggested by the plaintiff. The trial judge found that the defendant had provided an explanation for his vehicle being in the wrong lane which was equally consistent with negligence and no negligence, thus rebutting the presumption of negligence arising from his presence in the wrong lane.
Suzuki v. Bain, 2005 BCSC 1276
Plaintiff
Oil on the road
The defendant lost control on a corner and struck the oncoming vehicle in which the plaintiff was traveling. Although there was a substance, likely diesel fuel, present on the roadway in the area of the curve, the court found that the defendant should nevertheless have been able to negotiate the curve if traveling at an appropriate speed.  
Benoit v. Farrell Estate, 2004 BCCA 348
Defendant
Ice
The defendant driver lost control of his vehicle on an icy road, crossed the centre-line, and collided head on with the plaintiff’s vehicle. Black ice had been observed by witnesses at the site of the accident and the British Columbia Court of Appeal upheld the trial judges findings that the accident was caused by black ice which remained on the road due to the negligence of a road maintenance contractor and that the defendant driver was not negligent.
Cranfield v. McKay, 2004 BCSC 291
Plaintiff
Ice
The plaintiff was injured when the vehicle she was a passenger in slid on ice and then collided with a utility pole. The court found that given the cold weather, a reasonably prudent driver ought to have been aware that there was a possibility of icy conditions. The defendant testified that she applied her brakes soon after seeing other vehicles that had gone off the road, but there was no evidence about the nature and extent of the ice on the road. In finding the defendant liable the court held that the accident was caused by the excessive speed and then abrupt braking of the defendant.
Barron v. Barron, 2003 NSSC 90
Plaintiff
Medical condition
The plaintiff was injured when the vehicle she was a passenger in went off the road and into a ditch. The defendant driver argued that he was not negligent but that he had choked on coffee he was drinking and that he had blacked out. The defendant had a history of choking and suffering lightheadedness from coughing while drinking coffee and although he had never passed out on previous occasions the court held that blacking out was foreseeable as a natural progression from the previous incidents of lightheadedness from coughing. 
Codner v. Gosse, 2003 NLSCTD 74
Plaintiff
Medical condition
The defendant rear ended the plaintiff, but claimed he had a blackout and was not responsible for the collision. The defendant had suffered several medical complications arising from diabetes but had never experienced blackouts before the collision. Shortly before the accident he had been visiting his terminally ill brother and remembered his eyes filling with tears and experiencing shortness of breath shortly before the collision. He was taken to the hospital immediately following the collision but his blood-sugar was normal and there was no evidence of a stroke or seizure. The court found the defendant liable on the grounds that he was distracted by his problems, was not paying proper attention to driving his vehicle, and should not have been driving his vehicle in the circumstances.
Lemaire v. Ashabi, 2003 BCCA 527
Plaintiff
Vehicle defect
Two plaintiff’s were injured when a wheel flew off the defendant’s truck and struck the vehicle in which they were travelling. The defendant had personally installed the wheels on the truck a week before the accident, and had re-checked the nuts a few days after installing the wheels. However, the defendant used a cross-wrench which did not indicate whether the nuts were torqued to manufacturers specifications. Hours before the accident the defendant’s girlfriend had heard some rustling in the trees near the driveway where the truck was parked and the defendant argued that thieves trying to steal the wheels had loosened the bolts before being scared off. The Court of Appeal upheld the trial judge’s inference of negligence from the circumstantial evidence presented by the plaintiff and the conclusion that the explanations offered by the defendant were too speculative to rebut the inference of negligence.
Olsen v. Barrett, 2002 BCSC 877
Defendant
Animal
The plaintiff was injured when the motor cycle she was a passenger on collided with a deer that ran onto the road. Although the plaintiff and her husband who was driving the motorcycle inclined their evidence in favour of a finding of liability, the court held that there was insufficient evidence to warrant an inference of negligence and concluded that the accident occurred because the deer ran into the road at high speed and that the defendant had insufficient time to avoid the accident.
Durant v. Lennard, 2001 BCCA 449
New trial ordered
Ice
The plaintiff was a passenger in a car that lost control on black ice and went off the road. The trial judge ruled in favour of the defendant but the British Columbia Court of Appeal remitted the matter back to trial because the trial judge failed to apply an objective test when considering whether the presence of ice was foreseeable and erroneously focused on the subjective state of mind of the plaintiff.
Wong v. Gonzalez, 2000 BCPC 205
Plaintiff
Animal
The plaintiff’s vehicle was rear ended when the defendant driver was distracted after being stung by a bee. The two vehicles were initially stopped but the defendant took her foot off the brake after being stung by the bee, allowing her vehicle to move forward and strike the plaintiff’s vehicle. The court found the defendant liable because she had an opportunity to deal with the bee in her car before it stung her i.e. she was stopped and could simply have put the vehicle in park the moment the bee entered the vehicle.
Whitmore v. Arens, 1999 CanLII 7028 (B.C.S.C.)
Plaintiff
Medical condition
The plaintiff was stopped in a left turn lane when his vehicle was struck head on by an oncoming vehicle. The defendant argued that the accident was inevitable because he suffered a seizure of which he had no prior notice and which rendered him incapable of proper control of the vehicle. The court rejected that argument for a variety of reasons, including credibility issues surrounding the testimony of the defendant and his wife, and that the expert evidence did not show that the defendant was, at the material time, overcome by a physical condition which rendered him incapable of proper control of the vehicle. (In light of some of the wording in paragraphs 38 and 39 which seem to place the burden of proof on the defendant, this case should be read with some care).
Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424
Defendant
Weather
Two hunters were found dead in their truck which had gone off a road and come to rest in a river bed. There was evidence that the area had experienced severe storms, but no direct evidence of negligence by the driver of the truck. The Supreme Court of Canada upheld the findings at trial that the plaintiff widow of the passenger had failed to establish negligence by the driver and that in that case the mere fact of the vehicle going off the road did not establish negligence.
ICBC v. City of Vancouver; Labossiere v. Cassel, 1997 CanLII 2436 (B.C.S.C.)
Defendant
Object on road
The defendant driver swerved because of a falling tree and then collided with an oncoming vehicle. The court held that the defence of explanation applied and that the defendant did not fall below the standard of care expected of the reasonable driver in the circumstances. 
Perry v. Banno (1993), 80 B.C.L.R. (2d) 351
Plaintiff
Medical condition
The plaintiff was injured when the defendant reportedly lost consciousness and his vehicle crossed the centerline and collided with an oncoming vehicle. There was no evidence that the defendant's head slumped or that he exhibited any outward signs of loss of consciousness, but his wife who was a passenger at the time said that he was unresponsive to her warnings and failed to brake or other attempt to steer away from the imminent collision. No medical cause for the loss of consciousness was identified and there was medical evidence that people do not suddenly lose consciousness without warning and without explanation. The court considered that the accident may have happened due to simple driver inattention and found that the defendant had not provided sufficient evidence to establish that he lost consciousness or that the accident occurred without negligence on his part.
Boutcher v. Stewart (1989), 50 C.C.L.T. 77 (N.B.C.A.)
Defendant
Animal
A partridge flew through the driver’s open window and collided with his head. The dazed driver swerved into the oncoming lane and collided with a motorcyclist, but the defendant was found not liable.
Hearn v. Rowland (1988), 33 B.C.L.R. (2d) 67 (C.A.)
Defendant
Ice
There was nothing in the observable weather conditions in Victoria to put a reasonable driver on notice that he might encounter black ice where the accident occurred. 
Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674
Plaintiff
Vehicle defect
The defendant argued that the accident was inevitable because his brakes unexpectedly failed, but the Supreme Court of Canada rejected that argument and further held that even after the brakes failed the defendant driver could have avoided the accident by using the hand brake if it had been in proper working order.
 
 
 
 
 
 
 
 


[1] Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 at para. 19 (citing Allen M. Linden, Canadian Tort Law, 5th ed. 1993 at p. 233.
[2] Singleton v. Morris (13 March 2009), Vancouver M060288 (B.C.S.C.), Martinson J. 
[3] Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674.
[4] Boutcher v. Stewart (1989), 50 C.C.L.T. 77 (N.B.C.A.).
[5] Fuhr v. Cochrane, 1990 CanLII 975 (B.C.S.C.).
[6] The plaintiff was injured when the defendant reportedly lost consciousness and his vehicle crossed the centerline and collided with an oncoming vehicle. The defendant was found liable.
[7] Insurance Corp. of British Columbia v. City of Vancouver, 1997 CanLII 2436 (B.C.S.C.); Whitmore v. Arens, 1999 CanLII 7028 at para. 21 (B.C.S.C.); Barron v. Barron, 2003 NSSC 90 at para. 36.
[8] The defendant was a diabetic who claimed to have lost control of his vehicle due to an unexpected loss of consciousness related to his diabetic condition. The defendant was found liable.
[10] The plaintiff was injured when the vehicle she was a passenger in went off the road in winter driving conditions. The vehicle had fishtailed after hitting a “bump” between the road surface and a bridge and the defendant was found not liable.
[11] In the context of wildlife cases, in Pitt Enterprises Ltd. v. Farkes, 2005 BCCA 511 at para. 12 the British Columbia Court of Appeal said: “We were referred to other wildlife collision cases but, with respect, no general propositions of law can be extracted from them except perhaps to say that these cases all depend on the facts”.
 
[12] See also Michel v. Doe, 2009 BCCA 225 at paras. 26 – 27 regarding equivocal evidence and McPhee v. British Columbia (Ministry of Transportation and Highways), 2005 BCCA 139 at paras. 18 – 20 regarding insufficient evidence.
[13] Durant v. Lennard, 2001 BCCA 449 at para. 10
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