Small business law advice from Velletta

Wildlife Collisions and ICBC Cases

Collisions with wildlife are an unfortunate reality for motorists in British Columbia.  According to some statistics, in an average year in BC, four people are killed, 384 motorists are injured, and at least 6100 animals are recorded as killed.   Here in Victoria, the abundance of deer on the roadways has resulted in some municipalities proposing drastic measures.  In personal injury lawsuits, ICBC adjusters and defence lawyers often seek to deny compensation to parties injured in a collision involving wildlife by claiming that the accident was “inevitable”, and not the result of any driver’s negligence.  However, each case turns on its own facts.

To succeed in a personal injury lawsuit, the injured party must always prove on a  balance of probabilities that their injuries were caused by the negligence of another party, such as the driver of the vehicle, if the party is a passenger, or the driver of another vehicle.  In a collision with a moose, one cannot sue the moose.  It does not suffice to simply prove that an accident happened – it must have been the result of negligence.  It is for this reason that defence lawyers will raise the defences of “no negligence” and  “inevitable accident” where wildlife was involved.

“No negligence” means simply that the plaintiff hasn’t proven on a balance of probabilities that the driver was negligent.  “Inevitable Accident” is a separate defence, and the defendant has the burden of proving that the accident could not have been avoided, and that the circumstance causing the accident could not have been foreseen.   These defences are explained in a recent 2013 court case, Holt v. Rother:

[13]        In Perry v. Banno, Brenner J. (as he then was) distinguished between the defence of explanation and that of inevitable accident: the former rests on circumstances external to the driver, such as the presence of black ice on the road; the latter arises from circumstances “wholly within the defendant himself”. The onus of proof necessary to avoid liability differs depending on which defence is at issue. In the case of the defence of explanation, the defendant must only establish how the accident may reasonably have happened without negligence on his or her part. If that is done, then the plaintiff will not succeed because he or she will not have discharged the burden of proving negligence. On the other hand, if the defence is inevitable accident, the burden is greater. Such a defence is only made out upon proof on a balance of probabilities that the driving was not the product of conscious acts on the part of the defendant. As Tysoe J.A. put it “mere possibility is not sufficient”.

However, despite the existence of these defences, the case-law is clear that proving a driver’s negligence in collisions with wild animals depends upon the all of the circumstances of the case.  In the BC case of Pitts Enterprises Ltd. v. Farkes, the court listed a number of factors to consider in deciding a driver’s negligence, including the road conditions, the condition of the vehicle, experience, reaction to the risk presented, evasive action taken, familiarity with the road, the intensity of the vehicle’s headlights, the presence of other traffic, condition of the tires, and speed.

In a 2010 case, Freidooni v. Freidooni,  a passenger in a single vehicle accident successfully sued the driver.  In this case, the driver struck a deer while driving in a known wildlife area.  With respect to the driver’s liability, the judge wrote:

[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.

In the above case, the involvement of a wild animal in the accident was not sufficient on its own to ground a defence of inevitable accident.  It was up to the court to decide, whether in the circumstances before it, the driver of the vehicle was negligent.  Here, the judge’s analysis was focussed on the traffic conditions and the the positioning of the deer on the roadway.

Because every case turns on its facts, you should consult a lawyer if you were injured in a collision involving an animal that was not your fault.

 Image Credit: Government of Alberta, https://www.flickr.com/photos/governmentofalberta/