If I see someone starting to slide on snowy roads, what does the law expect me to do? Is there a ‘wrong choice’ of precautionary step?
In a recent judgment of British Columbia’s Court of Appeal, the court unanimously upheld the trial court’s decision that a driver was not contributorily negligent after she failed to take particular precautionary steps (decision indexed at Armes v Millard 2016 BCCA 464).
The crash occurred on a snowy evening in northern BC. Two vehicles were driving towards each other, each in the appropriate lane of a two lane highway (one lane in either direction). The first driver, a Ms. Singleton, lost control of her vehicle in the snow and slid sideways into the path of the oncoming driver, a Ms. Millard. The question before the court was not whether Ms. Singleton was liable – she undoubtedly was. The question was whether Ms. Millard should bear some of the liability for failing to take steps to avoid the collision as soon as she saw Ms. Singleton’s headlights begin to indicate a loss of control.
Ms. Millard estimated mere seconds went by between realizing the oncoming vehicle’s headlights were moving erratically. She was already driving quite slowly, having adjusted her driving to the conditions. She did not take any steps (like further reducing her speed or moving over) to avoid the collision. While the parties agreed that Ms. Millard could not have avoided the collision once Ms. Singleton entered her lane, it was alleged that she could have avoided the collision if she had stopped or pulled over as soon as she saw Ms. Singleton’s headlights indicate some loss of control.
Before we get into the liability question, let’s address why it even matters if Ms. Millard bears any of the fault. While this isn’t part of the judgment, we can make some assumptions about why this case was even before the court. Ms. Singleton would have been insured to a certain extent, with a concrete ‘ceiling’ on the amount that ICBC will pay out to persons injured in a collision caused by Ms. Singleton. The minimum coverage that many BC drivers choose is often insufficient to pay for the losses of multiple injured people. Ms. Millard and her two daughters were all injured in the collision – one daughter quite seriously. If Ms. Millard were found to be even a tiny bit at fault for the collision, her daughters would have access to her liability policy on top of Ms. Singleton’s – and therefore would have a much better chance of getting fair compensation for their losses.
Back to the question at hand – below, the court finds that the trial judge was correct in finding that Ms. Millard was not at fault for the collision in any way:
 The appellants suggest that the trial judge misapprehended the evidence because Ms. Millard did not testify that she took the further precaution of slowing down in response to the movement of the headlights or that she turned her mind to whether she should slow down in response to it. The appellants also criticized the trial judge for what they say was speculation about the possibility of stopping or pulling over. They suggest that the trial judge erred in essentially denying the existence of a duty of care to take special precautions to address an emerging possibility of danger.
 With respect, I do not think the judge misapprehended the evidence. The argument does not rise above an attempt to reargue the case at trial in the face of the trial judge’s adverse findings. I see no merit in the suggestion that the trial judge effectively denied the existence of a duty of care to take special precautions to address an emerging possibility of danger. In this part of the judgment, the focus of the inquiry is into what options were reasonably available to Ms. Millard in the circumstances. The trial judge assessed the evidence and ruled out attempting to pull over onto the shoulder. The judge analysed the photographs showing the shoulder. But these were not in any event representative of what Ms. Millard would have been able to see that night. The photographs were taken with a flash and were digitally enhanced. She turned her mind to what Ms. Millard could probably see regarding the width of the shoulder and what lay beyond it. It appears to fall away sharply. Assessing that evidence she found, as she was entitled to do, that steering right and pulling over would not have been a safe and reasonable option. The trial judge also assessed the risks of stopping in the circumstances confronting Ms. Millard. She concluded that doing so was not a safe option and that continuing to drive at her already slow speed was reasonable. The judge’s findings are supported by the evidence. I would not accede to this ground of appeal.
 I think it important to emphasize that the judge had to do her best to find the facts necessary to decide the case on a very thin evidentiary basis. She had effectively only Ms. Millard as an eye witness. Ms. Millard provided very little by way of definitive evidence about the facts because of the difficulty in estimating time and distance. Her estimates were often just guesses. The trial judge found her to be credible and honest, but the bottom line was that Ms. Millard was unable to provide evidence establishing a reliable substratum of fact about what happened so as to lay a foundation to prove that she had been negligent in failing to react to the movement of the headlights she saw coming toward her. Having reviewed the entire record, I can only concur in that assessment of the evidence.
 The judge found that, given what Ms. Millard could see that night, it was reasonable for Ms. Millard to continue to drive in her lane at the same speed. She was already driving cautiously. The temporary movement of the headlights did not establish that Ms. Singleton’s vehicle had crossed into Ms. Millard’s lane. After the first movement, the oncoming vehicle seemed to be under control. The judge’s conclusion that Ms. Singleton’s vehicle would not have been seen by a reasonable driver to pose a potential hazard was supported by the evidence.