If you are injured in an accident, you must prove that the accident was caused by the negligence of another person in order to be entitled to compensation for your injuries. If liability (fault) is not proven, then the claim will be dismissed and no compensation will be awarded.
Delfs v. Stricker 2022 BCSC 373 is a very unfortunate and sad example of what happens when liability is not proven on the evidence.
In that case, the 9 year-old injured claimant suffered a serious injury while riding as a passenger in a side-by-side all-terrain vehicle (ATV) driven by his 15 year-old cousin. At the time, they were riding in a group on a back-country trail near Fairmont Hot Springs, BC. In front of the ATV the injured claimant was riding in was his uncle who was leading the way on a motor bike and a friend who was also riding an ATV.
At some point well into the outing, an accident occurred that resulted in the injured claimant becoming impaled by a substantial tree branch that entered his body on his right side just below his rib cage and exited on his left side just below his armpit. He was rushed to Invermere Hospital and then flown to Calgary Children’s Hospital where he underwent major surgery to remove the branch and repair the extensive internal injuries. The event was horrifying and obviously traumatizing for the young injured claimant, both physically and mentally. At the time of trial, which was more than 12 years after the accident, he continued to suffer the effects of the accident. Most notably, he suffers from chronic pain in his abdomen and at the entry wound where the branch impaled him. He also continues to experience psychological trauma from the event.
In the legal action, the injured claimant claimed his cousin, who was driving the ATV he was riding in, was negligent in his operation of the ATV. He also alleged that his uncle and aunt were negligent in their supervision of the off-road adventure, in permitting his cousin to operate the ATV, in permitting the injured claimant to be a passenger in the ATV, and for failing to properly instruct and supervise his cousin in the use and operation of the ATV.
The insurance company defending the action argued on behalf of all of the defendants that this was a “freak accident” that was not caused by any negligence.
Prior to the accident, the cousin had years of experience driving ATVs despite his young age. In fact, he started driving ATVs when he was 6 years-old and he had regularly operated them in the years leading up to the accident. The specific ATV that he was driving at the time of the accident, however, was a new purchase by his parents and he only had a few hours of experience driving it.
About an hour and halfway through their trip, the ATV became stuck on a tree or a branch when they were accelerating up a hill. After becoming stuck, the injured claimant testified that his cousin “gunned it” in an effort to free the ATV. At that point, he felt a very sharp pain in his stomach. He looked down to see a lot of blood and a “good sized branch” that had impaled him just below the ribs on the right side of his body. The branch passed through his body with a sharp end exiting and sticking out of him just below his left armpit. The thick end of the stick was still protruding from the entry wound.
The cousin testified that he did not try to gun the accelerator to free the ATV from whatever it was stuck on. His evidence was that the injured claimant became impaled in the same motion that caused the ATV to come to an abrupt stop. He said he took his foot off the accelerator after he felt an impact or jostle of whatever it was that stopped them and put his foot on the brake. He then looked over at the injured claimant and saw the branch had impaled him.
When discussing liability, the trial judge noted that the limitations of the evidence on how exactly the injured claimant came to be impaled by the branch makes findings on liability challenging. The evidence made clear that the ATV hit something that impeded its forward progress and caused it to stop. What was not clear to the trial judge was whether the injured claimant became impaled by the branch in the same action that caused the ATV to stop (as the cousin suggested) or whether the ATV was stopped and then the injured claimant became impaled when his cousin “gunned” the accelerator to dislodge the ATV from whatever it was stuck on (as the injured claimant suggested).
When considering whether the cousin was negligent and liable, the trial judge noted that the question of whether he failed to meet the standard of care depended on 2 potential acts or omissions. One is whether the cousin kept a proper lookout for hazards, namely trees and branches that might enter the ATV and cause injury. The other is whether using the accelerator in an effort to free the stuck vehicle was reasonable in the circumstances or whether it was foreseeable that doing so would injure the injured claimant.
After considering all of the evidence, the trial judge dismissed the claim finding that this was a tragic accident that was not caused by negligent driving of the ATV. In particular, the cousin was not found to be negligent for the following reasons:
- Although the cousin was below the minimum age to drive ATV as set out in the owner’s manual, the trial judge considered this irrelevant because the injured claimant had many years of experience operating ATVs since he was 6 years-old
- The cousin was reasonably trained by his father on how to operate an ATV and he was comfortable doing so
- He was not found to have been driving at an excessive speed
- Whatever caused the ATV to become stuck was not a “large obstacle”
- Whatever the branch was attached to was not plainly visible as a hazard which could have been seen by keeping a proper lookout
- There are inherent dangers in operating an ATV in an off-road area where obstacles and hazards are inevitable
This is a very unfortunate outcome to this claim that undoubtedly was a life changing event for the injured claimant and everyone else involved. It outlines how essential it is to prove liability in order to recover compensation no matter how serious the injuries are that result from the accident. There is simply no compensation if there is no negligence with no exceptions. The following passage by the trial judge is informative:
“The mere fact that the accident happened does not mean it happened negligently, and the mere fact that [the cousin] hit a hazard deep in the bush does not, on its own, prove he was negligent in doing so. I find the evidence does not establish that the accident was caused by the cousin failing to keep a proper lookout.”