As discussed in prior blog posts, the issue of liability is central to all personal injury claims. An injured claimant who wants to pursue compensation for injuries must prove that another driver was negligent and that this negligence caused the motor vehicle accident and the injuries. An injured claimant cannot be found entirely at fault for a motor vehicle accident and still pursue compensation. This is because the claim must be made against the negligent driver. If the injured claimant is the negligent driver, then the law does not allow for a claim to be made against yourself.
As also discussed in prior blog posts, if the negligent driver fled the scene of the accident and is, therefore, unidentified then it is considered an ICBC hit and run claim. A hit and run motor vehicle accident claim is then made against ICBC pursuant to section 24(1) f the Insurance Vehicle Act which provides in part that:
24(1) Subject to subsection (1.1), if damage to non-vehicle property arises out of the use or operation of a vehicle on a highway in British Columbia and
(a) the names of both the owner and the driver of the vehicle are not ascertainable, or
(b) the name of the driver is not ascertainable, and the owner is not liable to an action for damages for the non-vehicle property damage,
any person who has a cause of action
(c) against the owner or the driver, as referred to in paragraph (a), or
(d) against the driver, as referred to in paragraph (b),
in respect of the non-vehicle property damage may bring an action against the corporation as nominal defendant, either alone or as a defendant with others alleged to be responsible for the non-vehicle property damage.
It is a breach of section 204(1) of the Motor Vehicle Act to drop or leave certain matters and objects on a highway:
204(1) A person must not throw, deposit, drop or leave on a highway a glass bottle, glass, nail, tack, wire, can or other thing or substance likely to injure a person, animal or vehicle on the highway.
In Leach v. Insurance Corporation of British Columbia 2022 BCSC 557, the injured claimant was injured in a motor vehicle accident when she lost control of her vehicle and she collided head-on with an oncoming vehicle causing her to suffer from significant injuries. It was raining and the roads were wet. The accident occurred in a sharp right-hand curve on Highway 101. Highway 101 is the only highway between the Langdale ferry terminal and Earl’s Cove. As such, it is a heavily used truck route. The speed limit on the highway prior to the curve is 60km/hr. Before entering the curve, yellow advisory signs indicate a curve and recommend 30 km/h speed. She testified that she had been driving at less than 50km/hr as she came up the hill leading to the curve. In the course of negotiating the curve, her vehicle crossed the double solid painted lane divider into the oncoming northbound lane and was struck by a pickup truck.
The RCMP attended the scene of the motor vehicle accident. The attending officer observed what he assumed to be a fuel spill in the southbound lane that covered an area of some 50 metres from the point where the collision occurred to back towards the curve in the road. He then contacted the highway maintenance company regarding the spill on the roadway, as he thought they needed to clean it up. He said he was concerned that it was hazardous and that another collision could occur. Absorbent was applied by the fire department to the spill. The absorbent shown in the photos in evidence is concentrated on the left-hand side of the southbound lane.
ICBC denied liability for the motor vehicle accident. ICBC argued at trial that the injured claimant’s liability allegation against an unidentified driver is based upon a theory that is not grounded in proven facts. ICBC argued that only the plaintiff lost control of her vehicle on the sharp corner, in wet conditions following a long dry spell, while exceeding the recommended speed. ICBC argued that the injured claimant was prima facie negligent for entering the opposing lane and causing a head-on collision with an oncoming vehicle.
The injured claimant argued that the direct and circumstantial evidence in her case is sufficient to establish, on a balance of probabilities, that due to the negligence of the driver or owner of a motor vehicle, a large amount of diesel was spilled from a fuel tank onto the highway. She contended that it is likely that the diesel spilled from of an overfilled and improperly sealed fuel tank on a large truck. She also argued that but for the diesel on the highway, the injured claimant’s vehicle likely would not have slid across the highway and the collision would not have occurred. Therefore, she contended that she had established a prima facie case of negligence, which can only be displaced by evidence to the contrary of which she says there is none.
ICBC relied on Fedosenko v. Insurance Corp. of British Columbia (1983), Victoria Registry Number 82/1090 in support of their argument that the injured claimant was negligent herself and that the presence of oil on a highway is not indicative of negligence on behalf of another driver. In that case, the trial judge found that it was pure speculation to infer that oil on the roadway was caused by the negligent use or operation of a motor vehicle, as one could readily envisage any number of ways oil might drip onto a roadway without negligence. The trial judge concluded that oil on the roadway was “a ‘neutral fact’ equally consistent with negligence or no negligence”.
The injured claimant relied on Ahluwalia v. Casselman, [1988] B.C.J. No. 841 (S.C.) in support of her argument against ICBC. In that case, a driver hit a large patch of diesel fuel on the roadway, lost control, crossed into the oncoming traffic, and collided with a truck proceeding in the opposite direction. The injured claimant brought an action against ICBC for the negligence of the unidentified driver or owner of the vehicle that was alleged to be the source of the diesel fuel spill. The trial judge distinguished Fedosenko finding instead that the presence of diesel fuel on the roadway is not quite as neutral as the presence of oil because diesel fuel spill is more likely caused by the driver’s negligence than an oil spill. The trial judge then found in favour of the injured claimant that negligence against an unknown driver was proven. Thus, the injured claimant contended that Ahluwalia is comparable to her case. She contended that the fueling of a motor vehicle is under the control of the driver of the vehicle and a large spill from the fuel tank would not ordinarily happen if proper care is exercised. She asserted there was ample evidence to establish that diesel spilled from a full fuel tank of a large truck where the accident occurred. The plaintiff asserts that this conclusion is also supported by the evidence of an engineer.
The trial judge accepted that that there was a substance on the road where the accident occurred that reduced the traction for southbound vehicles. He was not prepared, however, to find that it can be taken to be diesel oil, or that it found its way onto the highway as a result of the negligence of the driver of another vehicle. There was simply no reliable evidence confirming it was diesel oil.
The focus of the trial judge was then on the injured claimant’s speed when she entered the curve before losing control. The only evidence of the injured claimant’s speed was from her and her sister. Their estimates of speed suffered from the usual frailties involved in making precise estimates. The injured claimant contended that she was driving cautiously for the road and weather conditions, travelling under 50 km/h coming up the hill because she knew she was approaching the corner. She knew it was sharp and wanted to slow down, as she was familiar with the road. She said that she applied her brakes as she descended the hill, then applied them again prior to entering the corner.
The trial judge noted a big problem with this because this was not what she told the attending RCMP officer. The statement taken by the attending RCMP officer shortly following the collision confirmed that neither the injured claimant nor her sister knew the speed at which they were travelling. While both asserted that the speed was slow, their estimates of speed quickly reduced during the course of the interview.
Based on this, the trial judge did not believe that the injured claimant had a reliable recollection of the speed she was traveling.
The trial judge dismissed the claim. In doing so, he stated:
[114] On the balance of probabilities, I find that the plaintiff was likely travelling at the posted speed limit of 60 km/h as she travelled up the hill toward the crest that led to the curve where the accident occurred. I find that she may have slowed travelling downhill to the accident scene, but to no less than 50 km/h, the speed that her sister first volunteered to Cst. Vander Helm.
[115] I further find that had she traveled into the curve where the accident occurred, at a safe speed, she would not have lost control of her vehicle and crossed the center lane between north and southbound vehicles.
[116] I therefore find that the accident in which the plaintiff was injured was the result of her own negligence in traveling at a speed that was excessive for the road and weather conditions, and I dismiss her claim.