IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140919

Docket: S151849

Registry:
New Westminster

Between:

Peter Aaron Link

Plaintiff

And

Insurance
Corporation of British Columbia and John Doe

Defendants

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

I.                
INTRODUCTION

[1]            
In this case, the parties agreed to sever liability from damages
for the purposes of this summary judgment application. The determination of
liability is the sole issue before the Court. The plaintiff, Mr. Link, was
involved in a single vehicle accident after the front windshield of his vehicle
(the “Link Vehicle”) was blanketed with snow by a passing sport utility vehicle
(the “SUV”). The issue in this case is whether the actions of the driver of the
(unidentified) SUV constituted negligence.

II.              
FACTUAL BACKGROUND

[2]            
Mr. Link was a designated driver for his passenger, a female friend,
driving her vehicle home from an evening at a local casino in Richmond. When
they entered the casino in the early evening, there was no snow on the ground.
When they exited the casino later that night, there was at least two or three
inches of snow on the ground and it was snowing heavily.

[3]            
They began their drive home to White Rock. The drive across Richmond was
without incident. They continued south on Highway 99, reaching a point between
the Highway 10 exit and before the Highway 91 exit. The highway surface was
covered with snow which had not been ploughed. Mr. Link was driving at
approximately 40 to 60 km per hour in the slow or curb lane and was following a
set of tire tracks. He could see vehicles on the highway ahead in the distance
travelling single file in the same tracks.

[4]            
At that point, Mr. Link observed an SUV approaching from the rear. The
SUV changed from the slow lane occupied by the Link Vehicle into the passing
lane, driving at a high speed past the Link Vehicle. According to the affidavit
of Mr. Link, the SUV passed the Link Vehicle and cut back in front of the Link
Vehicle, and in the process delivered a significant “rooster tail of snow” onto
the Link Vehicle’s windshield, “making it impossible to see”. To that point in
time the windshield wipers on the Link Vehicle were keeping barely ahead of the
snow. They were unable, however, to cope with the blanket of snow dumped by the
passing SUV. As a result, Mr. Link instinctively tapped his brake pedal and the
vehicle went into a spin on the highway, until it collided with the safety
devices made out of cables and posts designed to catch vehicles and prevent
them from crossing the highway median.

[5]            
Mr. Link described the event on discovery as follows:

I could see it in my rear-view
mirror ….. eventually was roaring up right behind me and flew by me, you know,
in the left-side and roared right by me in some sort of SUV truck, and a big
rooster tail of snow completely covered the windshield, I couldn’t see a thing,
and I remember just tapping the brakes a little bit because I couldn’t see, and
the car spun out and hit these metal posts with wires in between, and I mean,
it just happened so fast.”

[6]            
Mr. Link, in written statements, stated that the SUV had moved abruptly
back into the slow lane after passing him, and it was during that action that the
blanket of snow was thrown onto the Link Vehicle’s windshield. Counsel for ICBC
submitted that I should disregard those written statements as they were
inconsistent with what Mr. Link said in his examination for discovery. It is
difficult to make credibility findings based on written material filed in a summary
judgment application. If such a finding was an important consideration to the
decision being made, it would be preferable for the Court to refuse the summary
judgment application and require a trial with viva voce evidence, where
credibility issues can be properly canvassed. Having reviewed the examination
for discovery transcript, the issue does not arise as Mr. Link was never asked
about where the SUV went after passing the Link Vehicle.

[7]            
I appreciate that counsel were in agreement that this issue should be
decided prior to a trial scheduled for January 2015 and in order to avoid a
potentially unnecessary trial.

III.            
DISCUSSION

[8]            
Sections 157-159 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
[MVA] establish a statutory duty of care on the driver of a vehicle
overtaking another vehicle. These provisions provide as follows:

157 (1) Except as provided in section 158, the driver of a
vehicle overtaking another vehicle

(a)   must cause the vehicle
to pass to the left of the other vehicle at a safe distance, and

(b)   must not cause or
permit the vehicle to return to the right side of the highway until safely
clear of the overtaken vehicle.

(2) Except when overtaking and passing on the right is
permitted, a driver of an overtaken vehicle,

(a)   on hearing an audible
signal given by the driver of the overtaking vehicle, must cause the vehicle to
give way to the right in favour of the overtaking vehicle, and

(b)   must not increase the
speed of the vehicle until completely passed by the overtaking vehicle.

158 (1) The driver of a vehicle must not cause or permit the
vehicle to overtake and pass on the right of another vehicle, except

(a)   when the vehicle
overtaken is making a left turn or its driver has signalled his or her
intention to make a left turn,

(b)   when on a laned
roadway there is one or more than one unobstructed lane on the side of the
roadway on which the driver is permitted to drive, or

(c)   on a one way street or
a highway on which traffic is restricted to one direction of movement, where
the roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not
cause the vehicle to overtake and pass another vehicle on the right

(a)   when the movement
cannot be made safely, or

(b)   by driving the vehicle
off the roadway.

159 A driver of a vehicle must
not drive to the left side of the roadway in overtaking and passing another
vehicle unless the driver can do so in safety.

[9]            
Counsel have referred me to Crocker v. Sundance Northwest Resorts Ltd.,
[1988] 1 S.C.R. 1186, Tower v. Tower, 2010 NBCA 64, and Rowe v.
Bobell Express Ltd., [1999] B.C.J. No. 510. Another case, not cited by
counsel, which has been drawn to my attention is Lang v. Insurance
Corporation of British Columbia (1994), 51 A.C.W.S. (3d) 756.

[10]        
The facts in Rowe were as follows. Mr. Rowe was driving in the
fast lane heading westbound on Highway 1 south of Ashcroft, BC. The defendant’s
tractor, which was hauling two trailers, was in the slow lane ahead of Mr. Rowe’s
car. Mr. Rowe heard a noise sounding like an explosion or “something like
a shotgun going off”, which was later determined to have been caused by a
blowout from an inside tire on one of the trailers. The noise startled Mr. Rowe
who slowed his car, but the car in front of him had decelerated suddenly as a
result of the same noise. Mr. Rowe slammed on his brakes and turned hard to
the right to avoid colliding with the rear of the car in front of him. As a
result his car went into a ditch on the north side of the highway and
overturned.

[11]        
Mr. Rowe alleged that tire maintenance on the tractor trailer tires had
not been conducted properly. Madam Justice Fitzpatrick concluded that the
defendants failed to property inspect the tire and remove it from service,
thereby creating a risk of harm to all persons using the highway in the
defendant’s vicinity, including the plaintiff.

[12]        
It was argued by the defendants, however, that their failure to properly
inspect in no way connected the blown tire with the plaintiff ending up in the
ditch. Kirkpatrick J. followed the Supreme Court of Canada’s analysis in Crocker,
finding, at para. 22 of her reasons, that in order to decide the issue of
negligence the Court must determine:

(a)        whether the defendant owed a duty of care to the
plaintiff;

(b)        if a
duty existed, what standard of care was required and was the standard met;

(c)        did the failure to meet the standard of care cause
the harm suffered;

(d)        did the plaintiff voluntarily accept the risk; and

(e)        was the plaintiff
contributorily negligent?

[13]        
Kirkpatrick J. found that the defendants owed a duty of care to the
plaintiff; that they failed to meet the standard of care by failing to
undertake proper inspection of the tire which would have revealed the defect;
and that the plaintiff had not accepted any risk in relation to the tire. The
real issues in the case were whether the defendant’s failure to meet the
standard of care caused the harm suffered and whether the plaintiff was
contributorily negligent.

[14]        
Kirkpatrick J., at para. 24, concluded that the plaintiff’s attention to
the road had been distracted by the explosion of the tire, and that in all
likelihood the deceleration of the car in front of him was “precipitated either
by the same explosive sound heard by Rowe or by a piece of rubber thrown up
from the delaminated tire”. She held that the tire blowout had caused the
accident, as it set off a “chain of events which culminated in Rowe’s
injuries”.

[15]        
Kirkpatrick J. further held, at para. 25, that this was an unexpected
emergency of a kind described in Jantz v. Mulvahill (1992), B.C.A.C. 127.
She also found that the plaintiff did not commit contributory negligence. In
the result, the defendant was held liable in negligence.

[16]        
In Lang, an overtaking vehicle splashed water onto a motorcycle leading
the motorcyclist to lose visibility and control of his motorcycle. Mr. Justice
Hood found that the spraying of a large volume of water was unanticipated and a
surprise to both drivers and, in the circumstances, the defendant owed no duty
to the plaintiff travelling in the slow lane. Notably, Hood J. did not consider
the provisions of the MVA imposing a statutory duty of care on
overtaking vehicles to pass in safety.

[17]        
To determine whether the driver of the SUV was negligent, the Court must
follow the analysis outlined in Crocker and Rowe. The driver of
the SUV, as the driver of a vehicle overtaking another vehicle on the highway, owed
a duty of care to the plaintiff. That duty is statutorily mandated in ss.
157-159 of the MVA.

[18]        
Those sections also outline the required standard of care. Section 157
requires that the driver of an overtaking vehicle may only pass another vehicle
on the left side “at a safe distance and must not cause or permit the vehicle
to return to the right side of the highway until safely clear of the overtaken
vehicle”. Section 159 states that “a driver of a vehicle must not drive to the
left side of roadway when overtaking and passing another vehicle unless the
driver can do so safely.”

[19]        
In the case at bar, the highway was blanketed with a large amount of
snow that was clearly visible for all drivers to see, which made driving a
treacherous task. Despite the poor road and weather conditions, the driver of
the SUV blew by Mr. Link at a high speed in the left lane. Unlike the
situation in Lang, where Hood J. found that the spray was unanticipated
and a surprise to the overtaking driver, the driver of the SUV, given the
conditions, would have – or should have – appreciated the likelihood that the
act of passing at high speed and returning to the slow lane immediately in
front of the overtaken vehicle would result in a significant amount of snow
being thrown onto the overtaken vehicle causing a total loss of visibility.
This risk could have been avoided by the driver of the SUV by passing at a
lower rate of speed and not returning to the slow lane abruptly.

[20]        
There is, in my view, a very heavy onus on the driver of an overtaking
vehicle to make sure that passing can be done in safety; particularly in poor
road and weather conditions. The driver of the SUV in this case did not respect
the circumstances that the standard of care dictated. That driver was in clear
breach of the standard of care.

[21]        
Mr. Link did not voluntarily accept the risk that another driver on the
highway would fail to pass him in safety. As for causation, I am satisfied
that, as in Rowe, the unsafe pass “precipitated a chain of events” which
culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr.
Link and “a big rooster tail of snow completed covered [the] windshield”. This
caused Mr. Link to lose complete visibility, and he tapped his brakes because
he could not see. The Link Vehicle then spun out and hit the median. I find, in
the circumstances, that the driver of the SUV caused the accident.

[22]        
No contributory negligence has been proven by the defendant. Mr. Link was
in a smaller vehicle competing with bad weather and snow conditions. I find
that Mr. Link was driving in a safe manner at low speed consistent with
the difficult conditions. I also find that Mr. Link’s actions in tapping his
brakes was a reasonable reaction to losing total forward visibility.

[23]        
In the result I am satisfied that Mr. Link has proven on a balance of
probabilities that the driver of the SUV was negligent in all of the
circumstances of this case.

[24]        
Costs of this application are awarded to the plaintiff on Appendix “B”,
Scale B.

“Ball J.”