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A Case of an Accident “Not Attributable to Anyone”

In the recently published case of Johns v. Friessen, 2011 BCSC 1694, Madam Justice Kloegman considered whether the driver of a pickup truck was liable for injuries sustained by his passenger as a result of his losing control of his vehicle on black ice.  The accident happened in December 2007 while the truck was travelling on Highway 5 outside of Merritt B.C.  The truck skidded out of control and struck the centre median where it then “rode up on its side and righted itself”.  The plaintiff claimed that the defendant driver was negligent for driving at an excessive speed, given the ice on the highway.  The defendant plead that he had acted negligently.


No One at Fault in Vehicle Accident?


In deciding in favour of the defendant, the Justice Kloegman noted that the defendant’s truck was in excellent condition and had all-season tires with treads that were “one inch deep”.  The court found that the defendant driver had not been in a hurry and that the truck was travelling at least 20 km per hour below the posted speed limit on the highway at the time of the accident.  The court also noted that there was no evidence of “slippery conditions” existing along the route travelled by the vehicle that morning and that the “first indication” of slippery road surface was “at the accident site”.


In her decision, Justice Kloegman said the following:


[8]             The plaintiff bears the burden of showing on a balance of probabilities that the defendant Friesen breached the standard of care of a prudent driver in the circumstances and that this breach caused the plaintiff’s injuries.


[35]         In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.


[36]         The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.


[37]         In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.
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