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ICBC Woes: What if a Bird Flies into My Car and Strikes My Temple?

In a New Brunswick Court of Appeal case, Boutcher v. Stewart (1989), 14 M.V.R. (2d) 222, the plaintiff was injured when the defendant’s vehicle suddenly swerved into the plaintiff’s lane. The trial judge described the circumstances leading up to the accident:

…within a second before the impact the defendant was struck in the right temple by a partridge which flew through the right front window of his vehicle and momentarily stunned the defendant causing him to temporarily lurch or sway to the left in an effort to avoid further injury from an unknown object or objects. In so doing he pulled the steering wheel to the left thereby crossing the road’s center line.

The trial judge held that the defendant was not liable for the accident, and the plaintiff appealed. Two of the three judges upheld the trial decision, holding that:

There may be circumstances where driving with an open window would result in negligence on the part of the driver. I cannot, however, think that such is the case here. There was nothing to indicate that any object would enter the car. There were no highway warning signs indicating such a danger. There is no provision in the Motor Vehicle Act obliging a driver to drive with his windows closed. Indeed, I would expect that on a warm, sunny, summer afternoon that most vehicles, unless equipped with air-conditioning, are driven with window open. Unless there are visible or reasonably anticipated hazards, it is my view that such drivers are not breaching a duty of care. I agree with the trial Judge’s conclusion that Mr. Stewart was not being negligent when he operated his vehicle with the window open. In the circumstances here it was not reasonable, in my opinion, for Mr. Stewart to foresee that an object would enter his car and temporarily deprive him of his ability to control his car.

Despite the absence of highway warning signs, one appellate judge would have assigned liability to the defendant:

any reasonable person could have foreseen that an object entering an open car window might possibly strike the driver causing the driver to lose control of the vehicle. Admittedly, the incident itself is out of the ordinary, but the consequences of choosing to drive with the window down so that creatures of nature or foreign objects may enter, are not so remote as to be unforeseeable.

(Written by Troy McLelan)

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