This pedestrian suffered serious injuries when he was struck by a runaway snowmobile. The snowmobile operator had been thrown off the machine and the snowmobile sped one kilometre across open terrain before striking the claimant (Passerin v. Webb,2018 BCSC 289).
The snowmobiler was not using the the tether cord which would have automatically shut off the engine. The tether cord was to be attached to the operator’s clothing so that if the rider fell off the machine, the cap would pull off the post and the snowmobile would stop. This safety function was not used by the operator.
When addressing legal causation the snowmobile operator argued that this was a freak accident and that the damage is too remote to be reasonably foreseeable. The question of remoteness was addressed by the judge in this way,

[13]   Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t] … and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) [page121] Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643).

The proper use of the tether cord would have likely prevented damage to the claimant. The judge found that it would not be far-fetched for a reasonable person to foresee that an unmanned and moving snowmobile was a real risk in an area frequented by other snowmobilers.

The judge also adopted the words of the Court in  Assiniboine School Division No. 3 v. Hoffer, [1971] M.J. No. 39 (C.A.)at para. 13:

…The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable. In the case at bar I would hold that the damage was of the type or kind which any reasonable person might foresee. …

The judge therefore concluded that the claimant’s damage was caused by the breach of the standard of care of the snowmobiler as the damage was foreseeable and not too remote.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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