IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110628

Docket: M2066

Registry:
Powell River

Between:

Shirley Geraldine
Racy

Plaintiff

And

Grace Leask and
Jack Lyman

Defendants

And

Insurance Corporation
of British Columbia

Third
Party

Before:
The Honourable Madam Justice Ker

Reasons for Judgment

I.        Introduction

[1]            
This motor vehicle action arises from an accident that occurred sometime
after 7:00 p.m. on or about October 18, 2006, on the Yellowhead Highway #16
(“Hwy. #16”) between Prince Rupert and Terrace, B.C., in the vicinity of the entrance
to the Kasiks Wilderness Resort and Lodge (the “Kasiks Resort”). The distance
between Prince Rupert and Terrace is approximately 150 kilometres. In the area
where the accident occurred, Hwy. #16 is a two-lane paved highway with no
barrier or median at the centre line. The highway travels through a largely
forested and mountainous wilderness area that includes the Skeena River Valley
and the Kitimat and Coastal Mountain ranges.

[2]            
On the evening in question the defendant, Grace Leask, was driving a 1998
Ford F150 pick-up truck eastbound on Hwy #16. The plaintiff, Shirley Racy, was
a passenger in the vehicle, which was owned by Ms. Leask’s partner, Jack Lyman.

[3]            
Ms. Leask and Ms. Racy were driving east from Prince Rupert heading towards
Terrace, B.C. on Hwy #16. Their ultimate destination was a place called
Cranberry Junction, located north of Terrace off Hwy. #37, where they were
returning to resume their work as mushroom pickers at the camp located in that
area. They left Prince Rupert sometime around 6:00 p.m.

[4]            
An hour or so into their trip, about 90 km east of Prince Rupert and 60
km west of Terrace B.C,, Ms. Leask drove around a corner or bend in Hwy. #16 and
saw in her headlights two moose: a mother and her calf, moving from the right
hand shoulder of the highway and starting to cross the highway from the south
side of the road to the north side of the road. Upon seeing the two animals Ms.
Leask said to Ms. Racy words to the effect of “there’s a moose, hang on,”
applied the brakes and slowed her vehicle in an effort to avoid hitting the two
moose but was not entirely successful.  Ms. Leask’s pick-up truck clipped the hind
end of the mother moose with the driver’s side mirror. The moose calf was hit by
the right front corner of the pick-up truck and appears to have bounced off the
right front quarter panel of the vehicle, smashing the right front headlights
and buckling the front hood and right front quarter panel above the front wheel.
Neither the windshields nor windows were damaged in the collision.

[5]            
Ms. Racy claims she sustained soft tissue injuries to her neck and back
as a result of the collision. She alleges Ms. Leask was negligent in failing to
apply the vehicle brakes with more force in order to avoid hitting the two
moose who, according to Ms. Racy, were about half a mile away from the vehicle when
they were first sighted. Thus, argues the plaintiff, the defendant driver did
not do enough to avoid the accident and submits that a reasonable person would at
least have stopped as quickly as possible in the circumstances, honked the horn,
moved into the oncoming traffic lane, which was clear of any other traffic at
the time or pulled to the right hand shoulder of the road.

II.       Issues

[6]            
The sole issue in this trial is liability. Ms Racy argues Ms. Leask was
negligent in her manner of driving in failing to keep a proper lookout and
failing to take any evasive action such as slowing down more quickly by
applying the brakes more forcefully in order to avoid the collision.

[7]            
The defendants and the third party, the Insurance Corporation of British
Columbia (“ICBC”), argue Ms. Leask was not negligent in her driving and that
the collision with the moose was inevitable given their location moving onto
the road and their proximity to the truck when it rounded the bend or corner on
the highway. The defendants and third party further argue that Ms. Leask’s
actions of slowing as she did in the circumstances was the action of a reasonable,
prudent driver and accordingly there was no negligence in her manner of driving
in the circumstances.

III.       Evidentiary Synopsis

[8]            
Three witnesses testified in this trial, Ms. Racy for the plaintiff and
Ms. Leask and Mr. Lyman for the defendants. Three exhibits were entered: exhibits
#1 and #2 contained photographs of the area, taken by the plaintiff and the
defendant respectively. It should be noted that both sets of photographs were
taken at least two years after the accident. The photographs show two areas
within the same stretch of highway but slightly different in location and perspective
as to where the accident occurred.

[9]            
I turn now to a summary of the salient features of the evidence. Although
I may not mention all the evidence I heard on this trial, I have considered all
of the evidence adduced in arriving at my conclusion.

The evidence of Shirley Geraldine Racy

[10]        
Shirley Racy lives in Powell River, B.C. but travels the coastal area of
the province in the mushroom season, picking and buying mushrooms. One such area
Ms. Racy travels to is Cranberry Junction, a small community north of Terrace located
off Hwy. #37, which is where she was stationed in October 2006.

[11]        
On or about October 18, 2006, Ms. Racy travelled as a passenger with Ms.
Leask from Cranberry Junction into Prince Rupert. Ms. Racy went to visit her
daughter while Ms. Leask went home to do laundry and check on her residence. The
parties had made a day trip into Prince Rupert and were intent on returning to
Cranberry Junction that same day. Around 5:00 p.m. Ms. Leask told Ms. Racy they
needed to leave Prince Rupert as she did not like driving at night. Ms. Racy
and Ms. Leask left the store where Ms. Racy’s daughter was working, went back
to Ms. Leask’s residence and then left Prince Rupert 30 to 45 minutes later.

[12]        
Ms. Racy, who does not drive, rode in the front passenger seat of Ms.
Leask’s Ford pickup truck for the return drive to Cranberry Junction.

[13]        
Ms. Racy recalled the plan was to drive the entire distance to Cranberry
Junction that night notwithstanding Ms. Leask’s purported comments about not
liking driving at night as she found it difficult to see. As they drove along
the highway, Ms. Leask and Ms. Racy talked about a woman who had been killed in
an accident the previous year when her vehicle hit a moose on the same stretch
of Hwy #16. Ms. Leask had pointed the area out to Ms. Racy on their drive into
Prince Rupert earlier that day.

[14]        
Ms. Racy did not know how long they had been driving on their trip back
to Cranberry Junction, largely because she was not paying any particular
attention to the matter, but at some point in the drive, near the Kasiks
Resort, Ms. Racy testified that as they drove around a corner Ms. Leask said
“there’s a moose, hang on.” Ms. Racy grabbed the handle above the passenger
door frame and “really hung on.” It was her evidence that it was still bright
enough to see two moose: a mother and calf. Ms. Racy testified that even though
she has difficulty seeing, when she looked up she saw the two moose at least a half
mile ahead of them on a long straight stretch of road, standing at the right
hand shoulder side of the highway.

[15]        
Ms. Racy testified that she really hung on to the handle above the door but
kept wondering why Ms. Leask did not slow down or stop as in her mind there appeared
to be plenty of room to do so and there was no other traffic. She also wondered
to herself why Ms. Leask did not pull over to the side of the road and simply let
the moose cross the road. Ms. Racy testified that she bent forward and as she
was returned to an upright position upon the impact, she saw the moose calf
going by her passenger window.

[16]        
Four years later, in October 2010, Ms. Racy returned to the area, the
first time since the accident, and took some photographs of the location where
she recalled the accident occurring. The three photographs, contained in Ex. #1
at Tab 1 were taken at about 3:00 p.m. and depict the area as she recalled it
to be on October 18, 2006. Apart from the fact that it was a bit darker when
the accident occurred, there was no snow or ice and the highway was dry on
October 18, 2006.

[17]        
Ms. Racy testified, and marked on the photographs, where she first saw
the moose and where they were when Ms. Leask hit them. Ms. Racy first saw the
two moose on the shoulder area of a straight stretch of the highway, near some
railway lights and east of the 100 km/h speed limit sign. The photographs
depict a wider area of shoulder and gravel pull off spot east of the 100 km/h speed
limit sign. West of the speed limit sign however, there is a smaller shoulder area
and ditch. Ms. Racy indicated that when Ms. Leask hit the moose calf, both
moose were much closer to the 100 km/h sign, the mother moose was at the centre
line of the highway and the moose calf was on the fog line on the right hand
side of the highway.

[18]        
Ms. Racy explained that the corner they rounded when Ms. Leask gave her
warning about the moose was not depicted in the photographs she took but
estimated it was three to four car lengths back (west) from the point of view
in the photographs.

[19]        
Ms. Racy testified there was no traffic in the area when the vehicle hit
the moose; and, that Ms. Leask took no evasive action, continued to drive
straight and did not slam on her brakes. Despite not being a driver, Ms. Racy
was of the opinion Ms. Leask did not slow down fast enough to avoid the
collision, explaining that in her opinion there was plenty of room to slow down.
Ms. Racy explained that as she held onto the handle her head moved towards the
dash of the vehicle and motioned for the court in a fashion consistent with a
body movement forward when brakes are applied. As she started to return back to
an upright seated position, at the same time as the impact with the moose calf,
Ms. Racy then saw the moose calf “go by” her window.

[20]        
Ms. Racy testified that, after the collision with the moose, Ms. Leask immediately
pulled the truck over off the pavement and onto the gravel shoulder area
depicted in photograph #3, near the cement area at the railway lights and the
single railway line. On the other side of the railway line there were trees and
then the Skeena River. Ms. Leask wanted to stop and look at the moose calf and
got out of the vehicle, but Ms. Racy screamed at her that the mother was still
in the area and she returned to the truck.

[21]        
Ms. Racy explained that when Ms. Leask returned to the truck, they set
out again but she estimated they pulled over into the Kasiks Resort after about
5 minutes of driving as the vehicle was making an unusual noise. The cook at
the lodge explained the kitchen had closed as it was after 8:00 p.m. when they
arrived. They left their damaged vehicle at the Kasiks Resort and the cook gave
them a ride into Terrace. None of the pictures in Ex. #1 depict the entry to
the Kasiks Resort which Ms. Racy described as being “down the road and around
the bend.”

[22]        
Ms. Racy disagreed that the photographs in Ex. #2 at Tab 8 accurately
depicted where the collision with the moose occurred and explained that the
encounter was farther east of the area depicted in those photographs.

[23]        
Ms. Racy was cross-examined on the contents of her November 30, 2006, statement
to an ICBC adjuster as well as her comments to a doctor in March 2007, both of
which intimated the collision happened very quickly. However, Ms. Racy disagreed
with the suggestion that the collision occurred fairly quickly and reiterated
the moose were a fair distance away when first sighted.

[24]        
Ms. Racy acknowledged she told another doctor within weeks of the
accident that it was night time or dusk when they encountered the moose but
then contradicted herself in cross-examination and said it was not dark out
when the collision occurred. Later still in cross-examination Ms. Racy
acknowledged that within 5 minutes of the collision they were at the Kasiks
Resort and it was dark. She eventually agreed that if it was dark at the time
of the collision she would be unable to see half a mile down the road and would
only see what the vehicle headlights illuminated.

[25]        
Ms. Racy was also inconsistent in her evidence as to whether or not Ms.
Leask applied the brakes when she saw the moose. She testified in direct
examination that she did not notice any braking activity or reduction in speed.
In cross-examination, however, she acknowledged Ms. Leask did slow down and
apply the brakes, but she did not know to what degree. She later testified she
did not feel the brakes being applied and that the vehicle stopped when they
hit the moose. Ms. Racy was reluctant to acknowledge that Ms. Leask had applied
the brakes and repeatedly responded that Ms. Leask had not slowed down enough
to allow the moose to cross the road.

[26]        
Ms. Racy recalled speaking to Jack Lyman, Ms. Leask’s partner, the next
day when they arrived back at their motor home in Cranberry Junction. Although
she recalled telling him they hit a moose, she could not recall the full
conversation. Despite this acknowledgment, Ms. Racy denied telling Mr. Lyman
words to the effect of “if it had not been for Grace’s driving [they] might not
be here.”

[27]        
Ms. Racy also contradicted herself about whether there were signs on the
road warning of moose in the area. Cross-examined on an earlier affidavit, where
she deposed there were signs all along the highway, she testified she did not
see any such signs but said she was not looking for them. She further explained
that because she does not drive she does not pay attention to the signs because
she is only the passenger.

[28]        
The final question in Ms. Racy’s cross-examination was fairly telling as
to the nature of this collision and the attention Ms. Racy was paying to the circumstances
at the time:

Q.      I
suggest to you that Grace Leask put on the brakes and slowed down the vehicle
but she didn’t slam on the brakes, do you agree with that?

A.       I
wasn’t, I wasn’t paying attention at that, I just noticed and kept putting in
my head that she should be slowing down more.

The evidence of Grace Maxine Leask

[29]        
Grace Leask lives in Prince Rupert, B.C. and is well familiar with the
stretch of Hwy. #16 between Prince Rupert and Terrace. She has been driving for
approximately 10 years, and in the years since the accident she travels this
stretch of highway about two times a week. There are no posted signs alerting
drivers to moose in the area although she has seen one or two moose in the area
since the accident. Ms. Leask described herself as a cautious driver who usually
slows down to about 20 km/h below the speed limit when driving at night as it
is difficult to see.

[30]        
Ms. Leask and Ms. Racy have been friends for 20 years and on October 18,
2006, they were returning from a day visit in Prince Rupert to Cranberry
Junction and the camp where they were working.

[31]        
Ms. Leask recalled that during the drive to Prince Rupert, earlier that
same day, she had a conversation with Ms. Racy about a woman who had been
killed in an accident when her vehicle hit a moose in the general area of their
drive.

[32]        
Ms. Leask recalled they left Prince Rupert for the drive back to the
camp close to 6:00 p.m. When they left Prince Rupert it was still light out,
but by the time they encountered the moose it was dark. Ms. Leask explained
that the driving conditions for the highway were good: it was dry and there was
no fog or rain. The posted speed limit in the area was 100 km/h.

[33]        
Ms. Leask and Ms. Racy were talking. As the vehicle rounded a corner or
bend in the road Ms. Leask saw two moose on the right hand side of the highway
and they were moving. Ms. Leask recalled having her vehicle headlights on
high-beam at the time. She immediately told Ms. Racy to “hang on” and was 95%
sure she immediately applied the brakes to slow the vehicle down. Ms. Leask
estimated she was driving at about 85 to 90 km/h when she rounded the corner
and encountered the moose. She estimated the moose were about three to four car
lengths away when she first saw them at the side of the road. She explained she
did not slam on the brakes for fear of losing control of the vehicle,
notwithstanding it was equipped with an antilock brake system.

[34]        
Within a couple of seconds of seeing the moose and slowing down her
vehicle, Ms. Leask testified they were “on the moose” with the mother having
crossed the eastbound lane for traffic, moving into the oncoming traffic lane. The
moose calf was starting to head from the shoulder area of the road for the
eastbound lane of traffic towards the lane of travel Ms. Leask was driving in.
Ms. Leask explained she kept the vehicle in her lane of travel and under
control to the best of her ability. She explained she was unable to swerve into
the oncoming traffic lane as the mother moose was in it and she would have hit
it head on. Ms. Leask also could not swerve to the right shoulder area as then she
would have hit the moose calf head on with her vehicle. Furthermore, she was
nervous that driving on to the shoulder of the highway at the rate of speed she
was driving might result in her losing control of the truck and flipping it.

[35]        
Ms. Leask testified that she did not have much time to slow down as the
moose continued to move and by the time she slowed the vehicle to about 25 or
30 km/h the moose were right in front of her with the mother having crossed the
highway into the oncoming traffic lane and the moose calf moving from the
shoulder towards their lane of travel. Ms. Leask clipped the rear end of the
mother moose with the driver’s side mirror and hit the moose calf around its
neck or shoulders with the right front corner of the passenger side of the
truck. She described the motion of hitting the moose calf as like an impact
with a pillow.

[36]        
After hitting the moose calf, Ms. Leask stopped the truck and wanted to
check on it but remained in the vehicle at Ms. Racy’s suggestion. Ms. Leask continued
to drive, intending on returning to the camp, but the truck was making “weird
noises” and so she pulled into the Kasiks Resort, which she estimated was anywhere
from 300 metres to about one kilometre away.

[37]        
Ms. Leask was clear in her evidence that it was dark out at the time of
the accident and as such neither she nor Ms. Racy were able to see beyond the
reach of the headlights, let alone half a mile into the distance on the highway.
Although inconsistent as to the time of their departure from Prince George as
between her statement to ICBC and her evidence at trial, the inconsistency,
given the passage of time, was not that significant, particularly as either
departure time would have resulted in the area where the accident occurred
being dark when they encountered the moose.

[38]        
Ms. Leask took photographs of the area in January 2009 that were marked
as part of Ex. #2. She marked on the photographs at Tab 7 and 8 of Ex. #2 the
area where she first saw the moose. She explained that at the time of the
accident, the trees depicted in the photographs still had their leaves and that
the third photograph at Tab 8 of Ex. #2 showed tree stumps that were actual trees
at the time of the accident but had since been cut down. The last photograph in
Tab 7 was taken east of the entrance to the Kasiks Resort and depicts, far off
in the distant background, the corner area where they encountered the moose.

[39]        
Ms. Leask was cross-examined extensively including about her assumptions
of rolling the vehicle if she slammed on the brakes notwithstanding the fact
the vehicle was equipped with an antilock braking system and also about her certainty
of applying the brakes. It was clear from her answers that the events happened
very quickly and her natural reaction was to apply the brakes to the extent
that she thought was appropriate for the circumstances she was faced with at
the time. Although Ms. Leask agreed she might have been able to apply more
force to the brakes, she did not know what the result would be and if that
would result in a swerve in either direction from her line of travel.

[40]        
In cross-examination, Ms. Leask revised her estimate of time between
first seeing the moose and hitting them from a couple of seconds to seven or
eight seconds. Despite this revision, Ms. Leask maintained she did not have
time to take other evasive measures apart from applying the brakes and slowing
down. As best she could determine from the circumstances that confronted her,
swerving in either direction from her lane of travel would have resulted in
hitting either one or the other of the moose head on.

[41]        
Ms. Leask acknowledged she was aware of the potential danger of moose
and wildlife in the area and reduced her speed to between 85 and 90 km/h, below
the posted speed of 100 km/h, for that possibility of a night time encounter.
Although she had her headlights on highbeam at the time she was driving, Ms.
Leask was still surprised by the moose, which were located on the right hand
side of the highway although not concealed by any of the surrounding brush.

[42]        
Ms. Leask was cross-examined on her statement to ICBC given on August 2,
2007.  She corrected her statement that they left Prince Rupert just before
7:00 p.m. and revised their departure to just before 6:00 p.m. She adopted from
her statement her description of the location of the accident as happening just
after rounding the corner onto the straight stretch just before the Kasiks
Resort and that it was dark at the time. Ms. Leask also explained that when she
used the term corner she meant the bend in the road. Despite adopting her ICBC
statement about where the accident occurred, Ms. Leask disagreed with the
suggestion that Ms. Racy’s photographs were more accurate in their depiction of
the location of the accident on a long straightaway and reiterated her
photographs more accurately depicted where the accident occurred.

The evidence of Jack Valentine Lyman

[43]        
Jack Lyman, Ms. Leask’s partner, has lived in Prince Rupert for 50 years
and travelled the route of Hwy. #16 between Prince Rupert and Terrace, B.C. numerous
times. There are no signs warning of moose in the area where the accident
occurred and Mr. Lyman has not often seen moose in that area.

[44]        
Mr. Lyman testified that the day after the accident, when Ms. Racy and
Ms. Leask returned to the camp at Cranberry Junction, Ms. Racy came into the
defendants’ motor home, and briefly spoke with Mr. Lyman about the accident. Ms
Racy told Mr. Lyman they had hit two moose on a corner and said, as she was
leaving, words to the effect of “if it was not for Grace’s driving, we might
not be here now.” Ms. Racy then left the motor home.

[45]        
In cross-examination Mr. Lyman did not recall if he included this
conversation in his statement to ICBC and acknowledged it was not included in
his January 14, 2010, affidavit filed on an earlier Rule 18A application that
sought to have the plaintiff’s action dismissed. However, Mr. Lyman did not
appear to fully understand the import of the Rule 18A proceedings in July 2010,
stating he did not really know why he travelled to Powell River in July other
than he was told to be there for the application.

[46]        
Mr. Lyman acknowledged that in hindsight the conversation with Ms. Racy
probably was important but he did not think so at the time. He explained he did
not think about it until he walked out of the courtroom in July 2010 and then
told both counsel of his recollection. He further explained he did not recall
the other small talk in the conversation with Ms. Racy because the accident
occurred in 2006 and he was not aware that he was being sued until almost a
year later. When it was suggested to Mr. Lyman that the conversation did not
occur, his reaction was swift and visceral: he testified he did not come all
this way, which I took to mean travel from his home in Prince Rupert to the
trial in Powell River, to make something up, that he would not make something
like this up and added that the plaintiff and her partner are his friends and
he does not like the situation he finds himself in.

Findings of Fact from the Evidence

[47]        
The evidence of Ms. Racy and Ms. Leask on the key factual points of
location of the accident, lighting conditions and distance between the moose
and the vehicle when the moose were first sighted conflicts and must,
therefore, be scrutinised with particular care. The credibility of each should
be analysed, taking into account the following test for the assessment of
credibility of interested witnesses as stated by words of O’Halloran J.A. in Faryna
v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357:

The credibility of interested witnesses, particularly
in cases of conflict of evidence, cannot be gauged solely by the test of
whether the personal demeanour of the particular witness carried conviction of
the truth. The test must reasonably subject his story to an examination of its
consistency with the probabilities that surround the current existing
conditions. In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as reasonable in
that place and in those conditions

[48]        
The primary difficulty presented in this case is the seemingly
unreliable recollections of the parties involved, no doubt given the passage of
time between the accident and the trial nearly four years later. This
difficulty is highlighted by the lack of agreement as to where exactly the
accident occurred, the difference in the perspectives provided by the
photographs adduced by each side, the significant delay between the accident
and the taking of any photographs of the area in issue, and the absence of any
depiction in the photographs of the actual bend or corner in the highway that
was rounded immediately prior to encountering the two moose.

[49]        
I do not find either Ms. Racy or Ms. Leask to be lying about the events,
but both witnesses were unreliable in their recollection as to where precisely
they were on the highway, relative to the photographs, when they first
encountered the moose at the side of the road. The lack of reliability and
clear recollection is in part the product the lack of need to pay close attention
to their surroundings and what was going on immediately before encountering the
moose, coupled with the intervening passage of time since the accident. The unreliability
of their recollections is no doubt heightened by the following facts: (1) it
was dark by the time they encountered the moose; (2) the incident happened
quickly; (3) they did not remain at the scene of the accident but moved on to
the Kasiks Resort; (4) neither party appears to have endeavoured to solidify in
their memory the precise location of the accident until many months after the
accident when they each returned to the scene to take photographs of it 48
months (Ms. Racy) or 27 months (Ms. Leask) after the incident; and, (5) neither
party included a depiction of the bend or corner they both acknowledge rounding
before encountering the moose.

[50]        
I note that the photographs in Ex. #1, provided by Ms. Racy, and the
photographs in Ex. #2, provided by Ms. Leask, are not of the exact same area but
appear to be of the same general vicinity. Ms. Leask’s photographs are to the
west of the 100 km/h speed limit sign depicted in Ms. Racy’s photographs. Ms.
Racy acknowledged that her photographs do not depict the corner they rounded.
It is evident, however, from Ms. Leask’s photographs, especially those at Tab 8
of Ex. #2, that there is a slight bend in the road in the foreground that then
straightens out at the location Ms. Leask indicates as where the moose were
sighted and started to cross the highway.

[51]        
The photographs in Ex. #1 and Ex. #2 provided by the parties assist in
showing the general location and physical layout of the area of highway but
neither set of photographs depict the actual corner or bend in the road the
vehicle came around when the moose were encountered.

[52]        
What is clear from the evidence of both parties is that the two moose
were encountered after rounding either a bend or corner in the highway. Ms
Leask’s immediate reaction was to issue a warning to Ms. Racy to hang on
because there were moose at the side of the road just ahead of them. The area
where they encountered the moose was a remote location of the two lane highway
with a small paved, and then gravel, shoulder, trees and bush, a small ditch
(in the area of the posted speed sign), a railway track and the river all to
the right of the east bound vehicle. To the left of the centre line was the
oncoming traffic lane, then a paved and gravel shoulder, trees and bushes,
possibly a ditch and then a hillside area.

[53]        
Given the time of year, the fact that they were driving in a mountainous
area, had left Prince Rupert close to 6:00 p.m, and had to have travelled for
at least an hour to make it to the vicinity of the Kasiks Resort, 60 km west of
Terrace, I find Ms. Racy is mistaken in her assessment of the lighting
conditions and the ability to see the moose half a mile away. Ms. Racy
acknowledged in cross-examination it was dark by the time they stopped at the
Kasiks Resort for help and that this stop occurred within minutes of the impact
with the moose and was less than a kilometre away.

[54]        
Based on the totality of the circumstances, I find that Ms. Leask’s
collision with the moose occurred sometime after 7:00 p.m. on October 18, 2006,
and that it was dark at the time. Ms. Leask was driving east bound on Hwy #16
and travelling between 85 and 90 km/h – 10 to 15 km/h an hour less than the posted
speed limit of 100 km/h.

[55]        
There was little in the way of traffic on the stretch of road where the
collision occurred. The road conditions were dry. Photographs taken of the
vehicle in the Kasiks Resort parking lot the next day establish the trees still
had their leaves.

[56]        
I find that Ms. Racy, based on her own admission, was not paying any
particular attention to the surroundings or what was going on during the drive until
her attention was drawn to fact that there were moose up ahead and told to hang
on by Ms. Leask. Although Ms. Racy believes she saw the moose half a mile down
the road, that would be a physical impossibility as it was dark at the time in
an area devoid of artificial lights that could illuminate the surroundings.

[57]        
It is clear from Ms. Leask’s evidence that the best she could do was
only roughly estimate distances and time involved between her first sighting of
and then collision with the moose. This is not surprising given the
circumstances of rounding a bend or corner in the road and encountering
wildlife on the side of the road. Her focus no doubt was on how to address the
emergency she was confronted with and how best to respond to it. It is clear
from Ms. Leask’s evidence, which I accept, that events happened very quickly
and, despite trying to be prepared for wildlife on the highway by reducing her
speed, she nevertheless was surprised by seeing the moose in the beam of her
headlights as she rounded the bend or corner of the road.

[58]        
Ms. Leask was very familiar with the road in question, as she drives it
on a regular basis and has done so for a number of years. There are no posted
signs for moose in the area, although Ms. Leask was aware that moose had been
sighted in the area on a previous occasion. She had not seen any moose in the
area before the accident, and maybe only one or two since the accident. Nevertheless,
she was aware of the possibility of wildlife on this stretch of highway. Ms.
Racy does not drive, and did not pay attention to whether there were signs
about moose in the area. It is clear that although the area might have wildlife
from time to time, it is not a “moose alley” area.

[59]        
I accept that Ms. Leask was driving slower than the speed limit,
travelling at about 85 to 90 km/h, because it was her practice, particularly at
night time, and in part because she was aware wildlife could be seen in the
area.

[60]        
Ms. Racy testified that as they came around the bend, Ms. Leask said
“moose, hang on,” and she braced herself by grabbing the handle above the
passenger door. She testified that she kept wondering why Ms. Leask was not
slowing down faster as, in her estimation, they had plenty of time to stop or
take evasive action.

[61]        
I accept Ms Racy saw the moose before the impact occurred but, because
it was dark at the time, she could not have seen them half a mile away and that
in fact they were much closer than what she believes they were and what she
testified to. As it was dark, the moose would only be visible in the headlight
area of Ms. Leask’s vehicle, a considerably shorter distance than half a mile. Accordingly,
I cannot rely on Ms. Racy’s estimation that the moose were half a mile away
when she first saw them.  She would only be able to see what was illuminated by
the headlights.

[62]        
Ms. Racy’s positioning of the moose on her photographs in Ex #1 also
gives me pause as to the accuracy and reliability of her observations and recollection.
On photograph #3 she marked where the two moose were said to be standing when
she first saw them. Her positioning of them at the time of impact has them
travelling a fair distance west on the shoulder of the highway towards the 100
km/h sign and is inconsistent with the evidence that the mother moose moved
across the road from where Ms. Racy says she originally saw them.

[63]        
I do not find Ms Racy to be lying on this point but simply mistaken, and
therefore unreliable, as to where the accident occurred and how quickly or
slowly it occurred. Ms. Racy never went back to the scene of the accident until
she took her photographs in October 2010.

[64]        
Ms. Leask’s evidence is that as she rounded the bend or corner in the
road, well in advance of the 100 km/h sign, she saw the moose and immediately told
Ms. Racy “moose, hang on.” At the same time, she applied her brakes but did not
slam them on and slowed down as best she could. She testified that within a matter
of a couple of seconds they were “on the moose,” and by then the mother was
across the truck’s lane of travel and into the oncoming traffic lane. The calf was
starting to cross the road from the right hand side shoulder. By the time Ms.
Leask made contact with the calf she estimated she had slowed to around 25 kms.

[65]        
Ms. Racy did not recall any evasive action being taken by Ms. Leask and that
she continued to travel straight ahead and slow down. In cross-examination she agreed
Ms. Leask applied the brakes, just not enough given the distance she says the moose
were from the vehicle. She then contradicted herself and said she could not say
if Ms. Leask applied the brakes. When it was suggested in cross-examination
that Ms. Leask applied the brakes and slowed down but did not slam on the
brakes, Ms. Racy replied that she was not paying attention to that and had in
her mind that Ms. Leask should have been slowing down more. Given her
inconsistency on the application of the brakes and her acknowledgement that she
was not paying attention to that, I find that serves to further undermine her
reliability as to what she saw, when she saw it and how long she had to observe
it. I find Ms. Racy’s recollection of the events of how much time there was to
stop between seeing the moose and the collision with the moose to be, in all
the circumstances, unreliable.

[66]        
Ms. Leask explained she did not have time to take evasive action; she
simply slowed and applied her brakes, but did not slam on the brakes as she did
not know whether they might have ended up in the ditch or what would happen to
them. She explained she continued to travel in her lane straight ahead because
she felt if she swerved to the right she would have hit the calf head-on and if
she had swerved left into the oncoming traffic lane she would have hit the
mother head-on. She denied she had lots of time to slow down and explained she
did not drive on the shoulder as she believed, in addition to hitting the moose
calf, she could have flipped the truck, given the speed she was initially
travelling at.

[67]        
Ms. Leask endeavoured to slow her vehicle and not hit either moose, but
testified she did not have enough time to take any other measures or steps. Ms.
Leask did not slam on her brakes, notwithstanding the anti lock brake system,
as she was not sure what the result would be in doing that either. Ms. Leask
believed she did the best she could in the circumstances she was confronted with
as she rounded the corner.

[68]        
Given my finding Ms. Racy is mistaken as to the lighting conditions and
what she observed in terms of distance to the moose when they rounded the
corner, I am not satisfied that it is more likely than not that the moose were
a significant distance from Ms. Leask’s vehicle when they rounded the corner.

[69]        
Although the vehicle sustained about $3,500 in damage, the photograph of
the truck shows that there was no damage to the windshields. The damage was
confined to the right passenger side area of the hood, extending from the headlights
along the right front passenger side panel and the outer hood line to the area
over the right front passenger wheel. The damage depicted is consistent with
Ms. Leask’s account that she slowed down significantly and had to be travelling
no more than 30 km/h when she hit the moose calf, causing the limited damage to
the hood and right front quarter panel area of the vehicle. It is also
consistent with her evidence that she could not swerve to the right or left as
moving right and to the shoulder would have put the moose calf more head on
with the centre part of the vehicle, and moving left would have put her head on
with the mother moose. As it was, she clipped the rear end of the mother moose
and the glass on her driver’s side outside mirror was broken.

[70]        
Ms. Leask was extensively cross-examined, including on her assumptions
about deployment of the driver side air bag and rolling her vehicle if she
slammed on her brakes at 90 km/h. She acknowledged these were assumptions that
she just knew but did not have anything to confirm her beliefs. Despite the
vigour of cross-examination and the somewhat combative nature of some of her
responses, Ms. Leask remained unshaken on her evidence that the incident
happened so quickly she simply reacted and did not have time to fully consider
other approaches or manoeuvres. Ms. Leask expanded her estimate of time from
sighting to impact from a couple of seconds to seven or eight seconds. Despite
this, she remained steadfast that if she had swerved into the oncoming traffic
lane she would have hit the mother moose head on and if she had swerved in the
opposite direction to the shoulder she would have hit the moose calf head on and
possibly have gone into the ditch.

[71]        
The thrust of Ms. Leask’s evidence, both in direct and cross-examination,
was that the events happened quickly and she had little time to react before her
vehicle collided with the two moose. She saw the moose as she rounded the bend,
they were illuminated by her high beam headlights and not concealed by the
brush as they were on the shoulder of the road and continuing to move onto the
road when she first saw them. She applied the brakes of her vehicle as she
thought appropriate in the circumstances. She reacted immediately, kept her
vehicle in its lane of travel and did not have any time to consider anything
else apart from determining in that quick assessment that if she swerved in
either direction from her lane of travel she would have hit one or other of the
moose head on. In the end, Ms. Leask appears to have tried to “thread the
needle” by going between the two moose, avoiding potentially more catastrophic
results if she had swerved to either side.

[72]        
While it is regrettable that Mr. Lyman did not mention the conversation with
Ms. Racy the day after the accident at an earlier point in the litigation
process, I do not find that he has made this conversation up. While demeanour
evidence is not determinative of credibility, it can at times assist in the
assessment of credibility. This is one of those times. I accept Mr. Lyman’s
evidence that the conversation did occur and that Ms. Racy made the statement
about Ms. Leask’s driving that Mr. Lyman attributed to her. I accept that at
the time the statement was made, before litigation was anticipated or
initiated, it did not seem particularly important to Mr. Lyman, he was simply
concerned about the well being of Ms. Racy and his partner.

[73]        
The meaning of the conversation is another matter. Given the surrounding
circumstances and the continued friendship of the parties, I find that Ms. Racy’s
comment about Ms. Leask’s driving was made in the context of expressing relief
at how Ms. Leask handled the situation she was confronted with when the moose
were sighted as she rounded the bend or corner in the highway.

[74]        
Of significance to my conclusion that Ms. Leask’s account of the events
is the more accurate one is the fact that Ms. Leask, immediately upon seeing
the moose, made the comment of “moose, hang on.” If the moose were much farther
up the highway as Ms. Racy appears to believe, there would have been no need
for a warning to be given. Ms. Leask’s warning to Ms. Racy to hang on is more
consistent with the preponderance of the surrounding circumstances that they
were almost upon the moose when Ms. Leask first saw them as they rounded the
corner or bend in the road.

IV.      Analysis

[75]        
The first issue to be addressed is whether there was negligence on the
part of Ms. Leask in relation to her collision with the two moose.

[76]        
Counsel for the plaintiff argues that by driving too fast for the
conditions of a remote location known to have moose in the area, coupled with
failing to apply the brakes more quickly and failing to take any evasive action
and by hitting both moose, a presumption of negligence arises that the
defendant must discharge.

[77]        
Counsel for the defendants and the third party argues that this is not a
case of prima facie negligence but rather a case of a reasonable person
confronted with an emergency situation and to which she responded as best she
could in the circumstances. In the alternative, counsel argues that if this is
a case of prima facie negligence then the defence of explanation as provided
by Ms. Leask is such that it amounts to an explanation as to how the accident
could have happened without negligence on her part.

[78]        
In support of his argument that liability has been established, counsel
for Ms. Racy relies primarily upon the following cases: Baker v. Russell,
2008 NLCA 51 [Baker]; Freidooni v. Freidooni, 2010 BCSC 553 [Freidooni];
McLean v. McLeod, [1942] M.J. No. 26 (Co. Ct.) [McLean]; and, Perry
v. Banno (1993), 80 B.C.L.R. (2d) 351 (S.C.) [Perry]. In addition,
he has cited reference to s. 144 of the Motor Vehicle Act, R.S.B.C.
1996, c. 318 (careless driving), as well as extracts from the Canadian
Encyclopedic Digest (Western), 3d ed. vol. 22 (Toronto, ON: Thomson Reuters
Canada Ltd., 1973-current) at §332, §335 and §343.

[79]        
In support of his argument that Ms. Leask is not liable for the accident
when she collided with the moose on Hwy #16, counsel for the defendants and
third party relies upon the following cases: Perry; Gauthier & Company
Ltd. v. His Majesty The King, [1945] S.C.R. 143 [Gauthier]; McLean
v. Weir and Goff (1980), 18 B.C.L.R. 325 (C.A.) [Weir]; Lynch v.
Insurance Corporation of British Columbia (1996), 18 B.C.L.R. (3d) 214
(C.A.) [Lynch]; Babich v. Maxwell (1990), 49 B.C.L.R. (2d) 269
(C.A.) [Babich]; Fontaine v. British Columbia (Official
Administrator) (1997), 46 B.C.L.R. (3d) 1 (S.C.C.), aff’g (1996), 22
B.C.L.R. (3d) 371 (C.A.) [Fontaine]; Pitts Enterprises Ltd. v. Farkes
et al, 2004 BCSC 1493, aff’d 2005 BCCA 511 [Pitts Enterprises]; McIntosh
v. ICBC and Mauer, 2003 BCSC 775, aff’d 2005 BCCA 64 [McIntosh]; Singleton
v. Morris, 2010 BCCA 48 [Singleton]; and, Fajardo v.
Horianopoulos, 2006 BCSC 147 [Fajardo]. In addition he has cited
reference to extracts from Linden, Allen, Canadian Tort Law (4^th
edit.), (Toronto, ON: Butterworths, 1988) at pp. 115-120 and The Canadian
Encyclopedic Digest (4^th ed.) Western vol. 42 Title 109
Negligence (Carswell: February 2009) at pp. 132-135, §42 to §50.

[80]        
A number of the authorities cited address accidents occurring as a
result of collisions with wildlife, especially moose. As noted by Madam Justice
Ross in Fajardo at para. 24 “…whether a driver is negligent when [s]he
runs into wildlife on the road depends on the circumstances of the particular
case.” In Pitt Enterprises (C.A.) at para. 5, Mr. Justice Donald noted
that while negligence may be presumed by driving in the wrong lane, it is not
necessarily presumed where a driver strikes wildlife in their ordinary lane of
travel (see also Pitt Enterprises (BCSC) at para. 17).

[81]        
Of course, to rebut any presumed inference of negligence the defendant
need only advance an explanation of how the collision may reasonably have
occurred without negligence on the part of the driver. If the explanation is
equally consistent with negligence and no negligence, then the burden of
establishing negligence remains with the plaintiff:  Pitt Enterprises (BCSC)
at para. 12-13, (BCCA) at para. 5; Singleton at para. 38; Fajardo
at para. 22 citing Gauthier, Lynch and Perry.

[82]        
In this case, Ms. Leask was travelling in her own lane of travel when
she encountered the two moose at the side of the road after rounding a corner
or bend in the road. She did not end up in the oncoming traffic lane. She had
little time to react. The two moose continued to move towards the travelled
portion of the highway from the shoulder area. Ms. Leask adopted a course of
action she felt presented the least amount of risk in the circumstances, by
applying her brakes but not slamming them on and by not swerving in either
direction and thereby hitting one or other of the moose head on. Ms. Leask’s
explanation offered in this case, if an explanation is necessary, argues her
counsel, is that the moose were moving onto the highway as she rounded the bend
in the highway and there was not enough time to do anything other than what Ms.
Leask did, especially considering that she was already travelling at a rate of
speed below the posted speed limit.

[83]        
In this case, the presumption of negligence does not arise and the onus
remains on the plaintiff to establish negligence on the part of the defendant. The
issue then is whether the plaintiff has proven on a balance of probabilities
the defendant was negligent in operating her vehicle when it struck the two
moose.

[84]        
To establish negligence, plaintiff’s counsel argues the want of care
demonstrated by Ms. Leask is established by her failing to brake more quickly
and failing to react in a fashion of either slamming on the brakes, stopping,
moving to the left or right or honking her horn, as well as travelling too
quickly in an area where it is likely that wildlife will be encountered on the
road. Counsel’s argument is, in part, predicated on acceptance of Ms. Racy’s
belief that it was still light enough to see the moose half a mile away and
that was how far away the moose were when first sighted. I have found, however,
that it was dark when the collision occurred and the moose would not have been
visible until captured by the beams of the headlights of the truck.  Ms. Racy’s
estimate that the moose were half a mile away when first sighted has been
rejected.

[85]        
In support of his argument of negligence, counsel for the plaintiff
relies upon Baker. In that case, the Newfoundland Court of Appeal
overturned the trial judge’s dismissal of the plaintiff’s action and found the
defendant driver negligent. The circumstances in Baker are distinguishable
to the case at bar. In Baker the defendant was driving on a straight
stretch of a divided highway at dusk when he encountered two moose, one
standing on the shoulder of the highway and one in his lane of travel. The
defendant swerved to the left, braked and almost immediately hit a third moose
which the defendant had not seen and that had come from the centre median. His
passenger, the plaintiff, was seriously injured when the vehicle hit the third
moose. The area the defendant was driving in was posted with reflective moose
warning signs and it was well known to have moose in the area, particularly in
the fall, which is when the accident occurred. However, the driver did not
recall seeing the sign. Significant to the Baker case was the expert
evidence on lighting conditions, lines of sight and distance to travel to stop
at various rates of speed. The defendant was found to have been travelling at
90 km/h at the time of impact with the moose and had testified he was
travelling at 100 km/h when he first saw the moose.

[86]        
The Court of Appeal in Baker found the moose warning sign to be a
pointed warning of an enhanced risk that a serious hazard may materialize. In
allowing the appeal, the Court found the trial judge committed palpable and
overriding error in how the issue of speed and the presence of moose warning
signs were addressed. The failure of the defendant to reduce his speed
appreciably from the posted highway speed upon entering the moose warning area,
in circumstances where the prevailing conditions at the time of the accident
included the highway being wet, diminishing light and the presence of the moose
warning sign, were found to create an unreasonable risk of harm to his
passenger. The Court of Appeal found the respondent was negligent in his manner
of driving when he encountered the moose.

[87]        
In the case at bar, Ms. Leask was driving below the posted speed limit,
there is a complete absence of expert evidence as to lighting conditions,
stopping times and distances and the encounter with the moose was not in an
area posted with moose warning signs and not in a “moose alley” area.

[88]        
The plaintiff’s counsel also relies upon Freidooni to support his
argument of negligence on the part of the defendant. In Freidooni, the
defendant husband was found negligent and liable for the injuries his wife
sustained when he struck a deer at 7:30 a.m. on a July morning while driving in
the fast lane of a divided highway where the posted speed was 110 km/h. The defendant
was driving at a 130 km/h with the vehicle’s cruise control activated. The defendant,
who was listening to music and drinking coffee, never saw the deer, only a
shadow coming from the right of the vehicle, and thus did not apply the brakes
or take any evasive action before hitting the deer. The accident occurred in an
area known to have wildlife and the defendant was aware of this fact. The trial
judge in Freidooni found that the reason the defendant failed to see the
deer was that he was not paying attention and in that respect he was negligent
given the circumstances and conditions of the highway and the defendant’s
knowledge that wildlife frequented the area.

[89]        
Freidooni is distinguishable for the fact that the defendant was
driving in excess of the speed limit in an area known to have wildlife and he
simply failed to pay attention to the surrounding circumstances, instead
drinking coffee and listening to music and letting the vehicle drive on cruise
control. Ms. Leask, on the other hand, was driving at a reduced speed limit,
paying attention to the highway conditions and upon seeing the moose responded by
applying the brakes and reducing her speed as best she could in the
circumstances.

[90]        
In McLean, the defendant was found negligent for failing to
reduce his speed when he first saw what he thought was a buggy on the road and
pulled to the left to pass it without reducing his speed. When the defendant
got closer to the object, still travelling at his same rate of speed, he realized
it was a herd of cattle. He slammed on his brakes but by then it was too late
and he hit four or five animals. The cattle driver and his assistant escaped
injury only because they jumped off the highway to avoid the defendant’s
vehicle. McLean too is distinguishable as the driver failed to respond
appropriately when he first observed the unknown object on the road. In finding
the driver negligent, Lindal C.C.J. stated as follows:

[17] There is a duty on the driver of a motor vehicle, who
is driving at night, to take special precautions the moment he sees an object
in front of him. In this case the defendant should have released the
accelerator at once, placed his foot on the brake and reduced the speed of the
car so as to be ready to meet any emergency. This he did not do, but
merely-assumed that what was in front of him was a buggy and that he could pass
it without slowing down. It is true that a few moments afterwards he changed
his mind and slammed on the brakes, but then it was too late. Not only has the
defendant failed to discharge the onus upon him, the evidence establishes
negligence in him.

[91]        
In the case at bar, however, Ms. Leask responded immediately upon seeing
the moose and took precautions. She warned Ms. Racy and she slowed down by
applying her brakes, responding to the circumstances that confronted her as
best she could.

[92]        
The case of Perry which the plaintiff’s counsel relies upon is
altogether different from the case at bar. In Perry, the accident
occurred on the Oak Street Bridge in Vancouver. The defendant was driving his
vehicle northbound in the centre lane when it crossed into the oncoming
southbound lane of traffic. The defendant’s vehicle struck a truck travelling
in the centre southbound lane of traffic. The driver of the southbound truck,
upon seeing the defendant’s vehicle drift into his lane of travel, took evasive
action trying to pull into the curb lane of travel and struck another vehicle. The
defendant argued he lost consciousness at the moment his vehicle started to
drift into the oncoming traffic lane. Extensive medical investigations failed
to identify any reason for a loss of consciousness. Mr. Justice Brenner (as he
then was) found there was a total absence of any objective evidence to support
a loss of consciousness by the defendant. The evidence was found to be equally
consistent with the defendant suffering a momentary lapse in attention caused
by his hearty laughter to his daughter’s joke. The defence of loss of
consciousness failed and the defendant was unable to prove that the accident
could not have been prevented by reasonable care on his part.

[93]        
Two cases more similarly situated to the circumstances of the case at
bar can be found in the decisions in Pitt Enterprises and Fajardo.

[94]        
In Pitt Enterprises, the defendant, who was driving a tractor
trailer at night on a two lane highway, struck a moose standing in his lane of
travel. The collision with the moose rendered the steering mechanism of the
defendant’s vehicle inoperative and he crossed the centre line from his
northbound lane of travel into the southbound lane. The defendant’s vehicle
collided head-on with the plaintiff’s southbound vehicle. The collision
occurred at night and the defendant was unable to take any evasive action when
he first saw the moose 20 yards away from his vehicle. The defendant was
driving approximately 90 to 95 km/h in a 90 km/h zone. The trial judge accepted
the defence of explanation that the defendant ended up on the wrong side of the
road because his steering mechanism was rendered inoperative after striking the
moose. Accordingly the onus remained on the plaintiff to establish that the
defendant was negligent in operating his vehicle when it struck the moose.

[95]        
In Pitt Enterprises, Powers J. found the defendant driver did not
lose control of his vehicle due to excessive speed. Rather, he was unable to
see the moose within enough time to stop his vehicle. Moreover, the area was
not a “moose alley” or “moose crossing area.” As the trial judge found at para.
32 “[t]he defendant, in the agony of the collision, made the decision that it
was less likely to result in injury if he simply hit the moose head-on, rather
than taking evasive action. This is not a case where the driver has lost
control of his vehicle due to excessive speed.” An appeal to the Court of
Appeal was dismissed.

[96]        
In Fajardo, the defendant was driving at night, northbound on the
highway near the Terrace-Kitimat airport. His vehicle struck a moose. The force
of the collision caused the defendant’s vehicle to stop. The body of the moose
was thrown into the southbound lane of travel. The plaintiff, also driving
northbound, came upon the scene and took action to avoid hitting the defendant.
He swerved into the southbound lane and collided with the moose.

[97]        
The area of the accident in Fajardo, although near a moose
warning area was found not to be within the “moose warning zone.” The
defendant, who was found to be travelling at 90 km/h, 10 km/h below the posted
speed, had slowed his speed for the hill and the patchy fog that had developed
that night. As soon as the defendant saw the moose he applied his brakes, but
not sufficiently to avoid colliding with the moose. The trial judge accepted
the defendant’s explanation of the moose darting out onto the highway and, despite
his efforts to avoid a collision, it could not be avoided, finding it to be
equally consistent with negligence and no negligence. The defendant in Fajardo
was found not to be negligent either in his rate of speed for the conditions or
failing to see the moose earlier than he did.

[98]        
In Fajardo at para. 32, Ross J. stated:

32  In Pitt
Enterprises, Mr. Justice Powers cited with approval Maksymetz v.
Plamondon (1988), 53 Man.R. (2d) 304 (C.A.) [Maksymetz] and Tabaka
v. Greyhound Lines of Canada Ltd. (1999), 252 A.R. 373 (Q.B.) [Tabaka].
In Maksymetz, Monnin C.J.M., speaking for the majority, stated the
following at paras. 8-9:

I am of the view that requiring a driver to reduce his
speed much below the posted speed limit because of the threat of the sudden
appearance on the highway of a large animal, such as a moose or a deer,
directly in front of a moving vehicle travelling with dimmed headlights is too
high a standard to set for driving on Manitoba roads, especially those in
remote areas of the province. That is not a standard which should be set by
this court.

What happened was so sudden that defendant could do
nothing to prevent the moose from hitting the hood of his tractor-trailer. The
action of the moose was the sole cause of the accident and could be termed an
act of God.

Tabaka was
to the same effect.

[99]        
And in Pitt Enterprises, Powers J. referred to the principles
from Tabaka stating at para. 24:

Tabaka v. Greyhound Lines of Canada Ltd., [1999] A.J. No. 1343. In this case, a Greyhound bus
collided with a mother and calf moose on Highway 16 just past Mount Robson Park
gates. It was approximately 2:20 a.m. This was a summary trial. At [paragraph]
9, the trial judge outlined what he referred to as principles as follows:

Based on the jurisprudence, I am of the view that the
following are the applicable principles with respect to claims of negligence
due to motor vehicle accidents involving wildlife:

* Requiring a driver to slow down to well below the
posted speed limit because of the possibility that wildlife may appear on the
highway is too high a standard to set for drivers: Maksymetz

* Some of the factors that are relevant in considering
whether the conduct of a driver is negligent include: road conditions, weather,
condition of the vehicle, experience, reaction to the risk presented, any
evasive action taken, familiarity with the road, the intensity of the vehicle’s
headlights, other traffic on the roadway, condition of the tires, speed: Favel,
[1988] A.J. No. 144; Birk, [1995] B.C.J. No. 2158 and Curbello;

* There is no requirement that a driver must drive at
a speed that would enable him to bring his vehicle to a standstill without
collision after the driver, keeping a reasonable lookout, sees a stationary
object in front of them: Cooper (1967), 66 D.L.R. (2d) 338, citing
Masten J.A. in McCannell v. McLean, [1937] 2 D.L.R. 639 (Ont. C.A.),
aff’d, [1937] 2 D.L.R. 639 (S.C.C.).

[100]     In this
case, Ms. Leask acted immediately and appropriately upon first encountering the
moose. Upon rounding the bend or corner in the road and seeing the moose, she gave
a warning to Ms. Racy and at the same time applied the brakes to slow the
vehicle as best she could without risking swerving in either direction. The two
moose were not standing in the lane of travel but were moving toward it from
the shoulder on the right hand side of the highway. The road conditions were
dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated.
Rather, they were caught in the range of the headlights. There is no evidence
as to what the range of the headlights on high beam for this model of vehicle
is in this case. Ms. Leask was driving at least 10 km/h below the posted speed
limit and was in all likelihood travelling at a speed of between 85 and 90
km/h. Ms. Leask reduced her speed to take into account the driving conditions
including the fact that it was dark and the possibility of encountering
wildlife.

[101]     Significantly,
and as in Pitt Enterprises and Fajardo, there is no evidence of
what speed Ms. Leask would have to have been travelling at to have been able to
stop her truck once the two moose became visible to her. Nor is there any
evidence as to how far the defendant’s lights would have illuminated the
highway in this case, something available in the case of Pitt Enterprises.

[102]     In
addition, the collision in this case did not occur in an area that could be
described as a “moose alley” where it is more probable than not that moose will
be found. While an accident may have occurred a year before in the same general
area where a driver struck a moose, there is no other evidence to suggest this
is an area where it is more probable than not that moose will be found. Ms.
Leask was aware there might be wildlife in the area and had adjusted her speed
accordingly and was wary of the possibility.

[103]     As soon as
Ms. Leask saw the moose she applied her brakes, but not with enough force to completely
avoid colliding with the moose. I accept her evidence that the moose were
fairly close to the vehicle, within the beam of the vehicle headlights, when
she first encountered them and that they continued to move from the shoulder
area to the vehicle’s lane of travel. Despite her efforts to avoid a collision
by applying the brakes and maintaining a straight path, instead of swerving in
either direction, the collision with the moose calf could not be avoided.

V.       Conclusion

[104]     Considering
all the circumstances in this case, I conclude that the collision with the
moose was not occasioned by any negligence or want of care on the part of Ms.
Leask. I find that Ms. Leask was not driving at an excessive speed given the
conditions. I also find that she was not negligent in failing to apply the
vehicle brakes more forcefully or in failing to take any other evasive action
such as pulling or swerving to the right or the left of her lane of travel. To
have done so no doubt would have resulted in much graver consequences: a head
on collision with either the mother moose or the calf. The plaintiff has failed
to establish on a balance of probabilities the defendant was negligent in her
response to seeing the moose on the highway. Accordingly, the plaintiff’s case
fails and the action must be dismissed.

[105]    
The defendants and third party are entitled to their costs at Scale B,
unless the parties seek to make further submissions on the issue, in which case
notice must be given to the Court within 30 days of the filing of this judgment.

“Ker J.”