Ice on the road as a cause of an accident
Ice, including black ice, is not uncommon on roads in British Columbia and when drivers lose control on ice they sometimes argue that it was unexpected and that they should not be found at fault for the accident. Depending on whether the occurrence of ice in the circumstances was truly unexpected, and depending on whether the defendant driver acted reasonably in all of the circumstances, that defence can sometimes succeed.
In Redlack v. Vekved, 1996 CanLII 3089 (BCCA) the British Columbia Court of Appeal gave an example of the circumstances in which ice on the road should be expected:
The respondent was an inexperienced driver driving a compact or a subcompact vehicle at or about 55 miles per hour on a highway in northern British Columbia before 8:00 o’clock on a February morning at a time when the temperature was below freezing and, although there was no snow directly on the roads, there was snow along the highway.
A prudent driver in such circumstances must always bear in mind the possibility of icy patches and drive within his or her own competence, and the capacity of her vehicle, to cope with such patches. Just as the streets of London are crowded and dangerous, so, in the winter, are the roads on the mainland of British Columbia, once one is beyond the Lower Mainland, hazardous. To drive in such circumstances as if it were summer is not the conduct of a prudent driver.
(Redlack v. Vekved, 1996 CanLII 3089 at para. 20-21 (BCCA)).
In Caldwell v. Ignas, 2007 BCSC 1228 the plaintiff was injured when the vehicle he was a passenger in went off the road in winter conditions. Although there was no evidence of black ice actually being observed at the scene of the accident the court found that the defendant, who was travelling 20 km/h over the speed limit, was driving too fast for the conditions. The defendant was found liable for causing the accident.
In Goodwin v. Goodwin, 2006 BCSC 218 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 defendant was found not liable and the plaintiff’s claim was dismissed.
In Benoit v. Farrell Estate, 2004 BCCA 348 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 judge’s 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.
In Cranfield v. McKay, 2004 BCSC 291 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.
In Breen v. McKenzie, 1992 CanLII 190 (BCSC) the court found the defendant to be more credible than plaintiff and accepted the defendant’s explanation of unexpected iciness on an otherwise dry road as sufficient explanation for the accident occurring without negligence:
The defendant’s explanation, which I accept, is that she had no reason to expect that there would be black ice on the road. There is no evidence of excessive speed or erratic driving. There was clearly no reason for the defendant to foresee that she would lose control of her vehicle. … I can find no evidence of negligence on the part of the defendant and I accept her explanation as rebutting any inference of negligence on her part.
(Breen v. McKenzie, 1992 CanLII 190 (BCSC)).
In McIntosh v. Maurer, 2005 BCCA 64 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 defendant was found not negligent:
[T]he defendant has not seen or felt any slippery sections, and had not seen an animal of any kind on or near the road, in the 170 kilometres or so that she had driven up to the point where the accident occurred. Nor had there been any noticeable change in weather or road conditions throughout that distance. 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 citing and approving of the test for negligence applied by the trial judge in that case; 2003 BCSC 775).
In Hearn v. Rowland, (1988), 33 BCLR (2d) 67 (CA) the defendant was not liable for an accident that occurred when his vehicle skidded on unexpected black ice:
The trial judge also found that there was nothing in the observable weather conditions inVictoriato put a reasonable driver on notice that he might encounter black ice on this stretch of theTrans-Canada Highwayand that Mr. Rowland's speed was therefore not excessive.
(Hearn v. Rowland, (1988), 33 BCLR (2d) 67 (CA) at para. 16).
[The trial judge] accepted the evidence of Mr. Rowland that he was not exceeding the speed limit prior to hitting the zone of black ice. Since there was evidence to support that finding this court ought not to interfere with it.
(Hearn v. Rowland, (1988), 33 BCLR (2d) 67 at para. 22 (CA)).
[The defendant] produced an explanation of how this prolonged spinning slide could occur, which explanation was equally consistent with no negligence on his part, as it was with negligence. In such circumstances the onus remained upon the plaintiffs of proving that the extensive spinning slide resulted from the negligence of [the defendant]. They failed to do so.
(Hearn v. Rowland, (1988), 33 BCLR (2d) 67 (CA) at para. 27).
In Durant v. Lennard, 2001 BCCA 449 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 reasonably foreseeable and erroneously focused on the subjective state of mind of the plaintiff.
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