IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100423

Docket:
M084529

Registry: Vancouver

Between:

Jennifer Freidooni

Plaintiff

And

Vahid Freidooni and Honda Finance
Inc.

Defendants

Before: The Honourable Mr. Justice S.J. Shabbits

Reasons for Judgment

[1]            
The plaintiff was injured in Alberta in a motor
vehicle accident that occurred on July 20, 2007.  She was a passenger
in a vehicle being operated by her husband, the defendant, Vahid Freidooni. 
She has brought this proceeding for damages, alleging that her husband’s
negligence was the cause of the collision giving rise to her injuries.  I will
sometimes refer to Mr. Freidooni as the defendant.

[2]            
The plaintiff and the defendant agree that the
issue of the defendant’s liability can and should be resolved at this Rule 18A
summary trial.

[3]            
The evidence includes the affidavit evidence of
the plaintiff, a copy of the plaintiff’s statement given by her to an insurance
adjuster on August 3, 2007, the transcripts and portions of the
evidence given by the plaintiff and the defendant at their examinations for
discovery, and copies of a number of photographs of the motor vehicle involved
in the accident.  The accident involved the defendant’s vehicle striking a deer
on a highway.  The defendant was driving the vehicle, and the plaintiff was a
front seat passenger.  The Freidooni’s three children were in the back seats of
the vehicle.  There were no other witnesses to the collision.

[4]            
The evidence on the application therefore
includes the evidence of the only two adult persons who could give evidence as
to what happened – those being the plaintiff and the defendant.  Both parties
accept the evidence advanced by the other.  There are no issues of
credibility.  Neither party suggests that any further evidence could be
elicited at a trial.  I have concluded that the issue of liability should be
determined at this summary trial.

[5]            
At the time of the accident, the plaintiff was
wearing a lap and shoulder belt.  She was intermittently speaking with her
children.  The pleadings raised an issue of contributory negligence but there
is no evidence that she was contributorally negligent.

[6]            
I am of the opinion that the plaintiff was not
contributorally negligent.  She is not responsible for her injuries or losses.

[7]            
The accident occurred when the Freidooni family
was en route from Millet, Alberta to Vancouver, British Columbia.  They had
left Millet at around 5:30 a.m.   The accident happened at about 7:30 a.m. on
Alberta Highway No. 16.  Highway No. 16 has two westbound lanes of
travel at the point where the accident occurred.  The Freidooni vehicle was in
the fast lane when it struck a deer.  The speed limit was 110 kilometres per
hour.  The defendant was driving at 130 kilometres per hour.  The vehicle was
on cruise control.  The defendant was listening to music and drinking coffee
when he saw a shadow coming from the right of the vehicle.  That was
immediately followed with a “big impact”.  The defendant testified that he did
not see the deer before the impact – he saw only its shadow.  He was unable to
take any evasive action.  He neither applied the brakes, nor attempted to steer
away from the deer.

[8]            
The impact was to the front of the vehicle.  The
photographs confirm that the point of impact was at the front centre of the vehicle.

[9]            
Highway No. 16 has a divider between the
eastbound and westbound lanes of travel.  There are two eastbound lanes on
Highway No. 16, as well as the two westbound lanes.

[10]        
The terrain to the right of the defendant’s
vehicle at the scene of the accident was an open field with no trees or shrubs
that would preclude an individual from seeing animals next to the travelled
portion of Highway No. 16.  The area was wide open, without significant
vegetation, signs, buildings or fences.  The terrain was flat.

[11]        
There were no vehicles travelling westbound in
front of the defendant’s vehicle that limited the defendant’s view.

[12]        
There was vegetation on the divider area between
the westbound and eastbound lanes of Highway No. 16 that could have
impeded the defendant’s view of deer in that area.

[13]        
The plaintiff did not see the deer before the
impact.  Her evidence is that she was turned speaking with one of her
children.  Her recollection is that there was no steering or braking by the
defendant before impact.

[14]        
The defendant says that he did not see the deer
before impact.  He neither slowed down nor applied the brakes of the vehicle
before the collision.

[15]        
Because neither the plaintiff nor the defendant
saw the deer before impact, the defendant submits that it cannot be determined
with any certainty as to whether the deer entered the westbound lanes of
Highway No. 16 from the open area to the north, that being the open field
to the defendant’s right, or whether it emerged from the vegetation to the
defendant’s left

[16]        
The defendant was examined for discovery on
September 21, 2009.  At discovery, he testified that he saw a shadow
coming from his right just before impact.  Although he did not see the deer,
the defendant said he saw its shadow.  The defendant said that the vehicle he
was driving was on cruise control at 130 kilometres per hour.  The speed limit
was 110 kilometres per hour.  The defendant said he was “just driving,
listening to music.”

[17]        
At discovery the defendant was asked:

Q         Do you have any explanation
as to why you didn’t see this deer even though there wide open field on the
right-hand side?

A          Mainly
because it was first thing in the morning, and I thought it is a pretty quiet
road, so just on the cruise control and I was pretty much straight and going my
way.

[18]        
The case for the plaintiff is based on the
submission that the defendant was negligent in not paying attention to the
roadway.  It was bright and sunny out at the time of the accident.  There was
nothing to impede the defendant’s view.  There was no traffic in the immediate
area. 

[19]        
The plaintiff submits that the defendant’s
negligence lies in failing to see what was there to be seen.  In White v.
Webster 2003 BCCA 118, Esson, J.A. delivers oral reasons for the Court of
Appeal.  He finds that there was serious fault on the part of the part of the
owners of a cow that had escaped onto a highway.  He says the operator of a
truck that took evasive action to avoid the cow “had little reason to
anticipate that a cow, or anything else, would show up in front of his truck.” 
Esson, J.A. said this: 

However, the
question whether Mr. White’s lack of care for his own safety comes down
this.  By his own evidence, he did not see the cow until he was so close to it
that he decided that he had to take the violent avoiding action which he took,
which led to the truck leaving the road.  Having regard to those facts, it was,
in my view, a virtually unavoidable inference that there was some absence of
look out on the part of Mr. White.

[20]        
In Blaine v. Hopkins (1990), B.C.J. No. 2724,
Mr. Justice Houghton, of this court, finds that the speed of a vehicle
being operated at about 110 kilometres per hour in a 90 kilometre per hour zone
constituted negligence, and was a contributing factor to a collision with a
moose.  He finds that if the motor vehicle driver had reacted when he should
have reacted, and if he had been travelling at or near the posted speed limit,
he could have avoided the collision. 

[21]        
The defendant submits that it has not been
proven that the defendant had time to take effective evasive action “when the
situation was recognizable as being dangerous,” and refers to Brewster v.
Swain 2007 BCCA 347.  In Curre v. Fitt, Mr. Justice A.F. Wilson
of this court exonerates a defendant from negligence, in circumstances where
the defendant was operating a motor vehicle at 50 kilometres per hour in a 30
kilometre per hour speed zone.  Wilson J. concludes that even if the vehicle
had been going 30, the accident would still have occurred.  The collision was
with a child who ran out onto the road in front of a vehicle.

[22]        
In Fajardo v. Horianopoulos 2006 BCSC 147,
Madam Justice Ross dismisses an action against a motorist whose vehicle struck
a deer.  She finds that the collision was not caused by any negligence or want
of care on the part of the motor vehicle operator.  She finds that he was not
driving at an excessive speed “given the conditions” and that he was not
negligent in failing to see the moose earlier than he did. 

[23]        
The defendant submits that it has not been shown
that the deer did not emerge from cover in the median of the roadway, and that
since neither the plaintiff nor the defendant saw the deer before the
collision, it cannot be inferred that the defendant could have seen the deer in
sufficient time to avoid the impact.

[24]        
The evidence, however, is unequivocal in that
the deer approached the defendant’s vehicle from its right.  Even if it had
initially emerged from the median of the roadway, it must have crossed entirely
over the lane in which the defendant was driving before turning and re-entering
the defendant’s lane of travel.  Alternatively, the deer emerged from the open
field to the right of the highway.  I am of the opinion that in either case,
the defendant’s failure to see the deer was negligent.  The only explanation as
to why he did not see the deer is that he was not paying attention to the
roadway.  The defendant was on cruise control on a wide roadway in perfect
conditions with no other traffic about.  By his own account, he was drinking
coffee and listening to music.  In my opinion, the reason why he did not see
the deer on the roadway was that he was not paying attention.  He was not
paying attention because he did not expect anything to be there.

[25]        
The accident occurred in an area where there is
wildlife.  The defendant knew that.

[26]        
In White v. Webster, Esson J.A. says
that the question comes down to this.  He says it was a virtually unavoidable
inference that there was some absence of look out on the part of the driver.  I
am of the same opinion in this case.  The defendant was not paying attention. 
He did not see the deer when he should have seen it.  He took no evasive action
to avoid the impact when he should have been able to do that. 

[27]        
I find that the defendant was negligent.  He is
liable for the accident.

[28]        
The plaintiff is entitled to judgment and costs
on Scale B.

_____________________________

Mr. Justice
Shabbits