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“Passing as Fast as Reasonably Possible”

What duty do I have when I’m passing other vehicles?  If someone else does something dangerous because my driving is inconveniencing them, am I liable for the resulting crash?

In the recent BC Court of Appeal Case Borgfjord v Boizard (2016 BCCA 317), the Court of Appeal discussed who was at fault after a serious crash on the Coquihalla Highway.  The crash took place on Larson Hill, where there are three lanes in each direction.  There were a number of vehicles at play in this crash, all travelling in the same direction.  In the far right lane, a tractor-trailer (“Semi 1”) was ascending the hill very slowly – at just 25km/hour.  There were two vehicles in the centre lane, both positioned back from Semi 1.  The first of those two vehicles was a second tractor trailer (“Semi 2”), travelling around 70km/hour.  The second middle-lane vehicle, just back from Semi 2, was an SUV driven by a Ms. Parry (the “Parry SUV”).  In the left lane, adjacent to Semi 2, was a pick-up truck pulling a camper, driven by a Ms. Boizard (the “Boizard Camper”).  Ms. Boizard was driving around 80km/hour in an attempt to pass Semi 2.

Approaching this group of vehicles was a Suburban driven by a Mr. Thue (the “Thue Suburban”).  Mr. Thue was driving at a speed “much greater than the normal or commonly seen speed” on the Coquihalla – somewhere “well in excess of 128km/hour” – and quickly caught up to the group of vehicles described above.  Mr. Thue made a number of maneuvres:

  1. Thue was in the left lane when he caught to the group.  He passed the Parry SUV on the left.
  2. Thue then pulled into the middle lane between the Perry SUV and Semi 2.
  3. Recall that Semi 1 is in the right lane and is still ahead of Semi 2.  Mr. Thue pulled into the right lane behind Semi 1 and accelerated to pass Semi 2.
  4. Semi 2 was still some metres back from Semi 1.  Mr. Thue attempted to hit the gap between the two semis to pull back into the centre lane, ahead of Semi 2.  This would have allowed him to clear the little group of traffic we’ve discussed and proceed along the highway.
  5. Thue misjudged the gap, and hit the rear corner of Semi 1.  His vehicle spun across the three lanes.  His passengers were ejected from the vehicle.  His vehicle came to rest against traffic in Ms. Boizard’s lane.
  6. Boizard, seeing the initial collision, applied her brakes.  The Boizard Camper did come to a head-on impact with the Thue Suburban, which was fully in her lane by that point.  Fortunately, Ms. Boizard had slowed considerably by then and that impact was minor.

The question was not whether Mr. Thue was liable, or whether the second impact caused the passengers’ injuries.  As Mr. Justice Savage writes, Mr. Thue’s liability is “clear and unequivocal” and the passengers were not in the Thue Suburban by the time of the second impact.  The question before the Court of Appeal was whether Ms. Boizard was also liable – in failing to pass Semi 2 “as fast as reasonably possible.”  The trial judge had found Ms. Boizard partly liable for the incident on that basis.

Ms. Boizard appealed the trial decision, arguing that the trial judge had erred in holding that the standard of care Ms. Boizard had owed in the situation was to overtake Semi 2 “as quickly as reasonably possible.”  She further argued that the trial judge’s finding that her failure to pass Semi 2 more quickly was a factual cause of the accident was “erroneously made based on vague and conclusory findings of fact and speculative inferences… Furthermore, Ms. Boizard submitt[ed] that the judge failed to apply the relevant legal concept of remoteness to determine whether her breach of the standard of care was a legal cause of the accident.”

The Court of Appeal unanimously found Ms. Boizard was not held to a standard of care to “pass as quickly as reasonably possible.”  She had a statutory right to pass a slower moving vehicle on the left – even where she herself was a relatively slow moving vehicle:

[45]         Although Mrs. Boizard did not breach any statutory requirement in passing the vehicles at 80‑85 kph, was there, nevertheless, a common law duty to overtake slower traffic as quickly as reasonably possible, just in case someone such as Mr. Thue might approach at “much greater than the normal or commonly seen speed on the Coquihalla Highway”, and “totally misjudge[ ]” his closing speed?  I think not.

[46]         In my view, Mrs. Boizard, in positioning herself in the left‑most lane, and passing slower-moving vehicles on the right, when no traffic was visible in the left‑most lane, was entitled to assume that any traffic coming from behind which was not visible when she changed lanes would slow, in accordance with the statutory obligation in s. 162(1) of the MVA.

Mr. Justice Savage went on to discuss legal causation, which requires that the harm that occurred be reasonably foreseeable for a person to be held liable for it:

[77]         The respondents submit that this is a case where the exact manner in which the accident occurred need not have been foreseen by Mrs. Boizard, but rather “it is enough to fix liability if one could foresee in a general way the sort of thing that happened”: Shelvey v. Bicknell, 1996 CanLii 1899 at para. 15 (B.C.C.A.).  They say it was reasonably foreseeable that negligent driving in the circumstances could have caused an accident resulting in injury to proximate highway users with whom the road was being shared.  The respondents say that the judge’s foreseeability analysis was based on the evidence.  He correctly applied the legal principles and was reasonable in finding that the risk created by Mrs. Boizard’s failure to overtake the Stingray Tractor-Trailer as quickly as reasonably possible was a legal cause of the accident in the circumstances.

[78]         Put another way, the respondents say Mrs. Boizard created a potential for conflict by occupying the overtaking lane.  It was reasonably foreseeable that another driver would take steps to avoid the conflict.  The creating of this potential for conflict drew the necessary causal link for the actions that led to the accident. The respondents add Mr. Thue’s speed prior to impact of approximately 125 kph is not uncommon for the Coquihalla, and therefore his driving could not be characterized as so outrageous that none of the other drivers could have predicted it.

[79]         In my view, the judge erred in not considering legal causation.  He did not expressly address legal causation and I cannot imply from his brief analysis that he considered this issue.  Even if his finding of negligence was based on a correct application of the “but for” test, assuming Mrs. Boizard breached her duty of care, the judge did not consider whether the accident was a reasonably foreseeable consequence of her conduct.  If the accident was not a reasonably foreseeable consequence of Mrs. Boizard’s (alleged) breach of her duty of care, then the breach of her duty was not a legal cause of the accident.

[80]         In my opinion Mrs. Boizard’s failure to pass as quickly as reasonably possible cannot be a legal cause of the accident.  By driving at the speed which she did the only risk Mrs. Boizard created was that another driver would not see her, or misjudge her speed, and approach her too quickly to avoid collision with her camper or another vehicle while performing an evasive manoeuvre.  In theory that could occur in areas of poor visibility, such as tight curves or darkened tunnels, the brow of a hill or in poor weather conditions such as fog or heavy precipitation.  However, that is not the case here.

The appeal was allowed, and the action against Ms. Boizard was dismissed:

[89]         I have concluded that the judge erred in finding that Mrs. Boizard was subject to a standard of “Drive as Fast as Reasonably Possible” when passing vehicles in the right hand lanes.  Even if she was subject to such a standard, whether passing, slow-moving driving is negligent must depend on what would be expected of an ordinary, reasonable and prudent person in the circumstances.  Mrs. Boizard’s driving was not outside of what would be expected of an ordinary reasonable and prudent person in the circumstances.  In any event, the pass by Mrs. Boizard was neither a factual nor a legal cause of the accident.

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