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Liability for leaving a car in the road and causing a hazard

If I lose control of my car and leave it blocking some of the road, can I be liable for somebody else hitting it?  What if it’s a dark night, I don’t turn on my hazards, nor put out reflectors to alert of the danger?

In a decision released this week by the Supreme Court of British Columbia, titled Godbout v. Notter (2018 BCSC 1043), liability was a major issue. The MVC occurred in the westbound lanes of Highway 1, east of Chilliwack at about 10 pm. Anyone who has traveled the stretch of road between Hope and Chilliwack at night will know that it is full of curves and is very dark. The defendant had lost control of his small, black Kia car, struck the center cable barrier, and projected back onto the highway. It came to rest blocking some of the left-hand passing lane. A driver of a car came upon the recently abandoned Kia, and slammed on his brakes and (with what the driver described as a “two wheels up in the air manoeuver”) was narrowly able to avoid hitting the Kia. He then reversed up the right hand shoulder, and came to a stop some distance ahead of where the Kia was resting in the left lane.

The injured plaintiff (Mr. Godbout) was driving a semi truck rig, hauling an open top trailer of scrap metal. His rig weighed approximately 102,000 lbs. He had his young step-son along with him for the round trip between Chilliwack and Kelowna, and had been driving for about 12.5 hours when he came upon the accident scene. He saw the car parked on the right shoulder, and shifted down and into the left lane given a wide berth to the people standing by the car. After passing the car, he checked his mirrors and started to change back into the right lane, when he suddenly “hit something”. It was the black Kia, sitting in the left lane. There were no lights or reflectors on the abandoned Kia. And he did not see it before hitting it.

Within seconds Mr. Godbout’s rig was on its side in the grass median. As the grass was hitting the windshield, he was gripping the steering wheel with his left hand and trying to hold his young step-son in the passenger seat with the other. Understandably, Mr. Godbout suffered physical injuries in this collision, and psychological injuries including PTSD. At issue was whether the defendant was solely to blame for the crash – or whether Mr. Godbout had contributed by his failure to see the Kia and take reasonable steps to avoid it. In attributing 100% of the fault to the Kia driver, Mr. Justice Jenkins provided the following reasons:

[52]         In assessing this accident and the question of avoidance raised by the defence, common sense is the best guide. The question in this respect is whether, in the face of the facts as represented to the court, Mr. Godbout was reasonably able to have his highway rig weighing 102,000 pounds and travelling at 100 km/h, maneuver and/or stop so as to avoid the collision. It is significant to note that the automobile driven by Mr. Fadai and the two automobiles he witnessed braking and swerving to avoid the Kia all had difficulty in their maneuvers. As evidenced by Mr. Fadai’s testimony, the two vehicles preceding the tractor-trailer were nosediving, and braking to get around the Kia. One could hardly anticipate encountering a dark vehicle with no lights engaged sitting diagonal to the traffic on a major freeway on a dark evening with no highway lighting. If three automobiles had difficulty avoiding a collision, a tractor-trailer rig weighing 102,000 pounds and travelling at the posted speed limit of 100 km/h would have no comparable ability to attempt to avoid the Kia.

[53]         I find that in the circumstances, the defendant, Mr. Notter, was negligent in causing the one vehicle accident in which his Kia was allowed to travel onto the grass median and end up in the left or fast westbound lane on the highway. This negligence was compounded by leaving the Kia sitting across a busy lane of traffic with no lights engaged so as to provide a warning to oncoming traffic.

[54]         Mr. Godbout could not have anticipated that he would encounter, in the dark, a vehicle sitting across the fast lane on a major freeway, especially since his attention had been diverted to the vehicle on the right shoulder (which he rightfully moved away from) before hitting the Kia. Mr. Godbout’s driving was what would be expected of a careful driver of a large tractor-trailer unit which had little or no opportunity to swerve to avoid the hazard.

[62]         I conclude that Mr. Notter was totally responsible for the accident and that Mr. Godbout was not contributorily negligent. In the circumstances facing him, it was unlikely that there was enough time to be able to take action to avoid the accident by braking and/or swerving around the Kia.

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