INTRODUCTION
Road Contractors are sophisticated litigants given their involvement in maintaining provincial highways. Typically, through no fault on their part, their business operations result in a high frequency of claims. Consequently they are experienced in assessing what is and is not important when it comes to defending their interest. We have designed a collaborative system to managing these claims, which allows us to tap into our clients’ extensive expertise. Often we are able to extricate our clients from what would otherwise be costly and time-consuming litigation before it ever gets going.
This approach requires regularly coordinated meetings with the various stakeholders, including the contractor, insurance broker, insurer and Provincial representatives. These meetings reaffirm everyone’s understanding as to how the required specifications operate and what changes may have occurred to the legal landscape that could impact how such specifications are scrutinized. The case summaries below are intended to highlight some of the substantial legal issues facing road contractors in litigation in recent years.
CASE LAW
Johnson v British Columbia, 1993 CanLii 2019 (BCSC)
Key Words: policy v. operational decision, no duty to keep roads in perfect condition, winter driving, snow and ice
The plaintiff was injured when snowy road conditions on the highway caused her to lose control of her pickup truck. She brought an action against the contractor responsible for the maintenance of that highway. The evidence was that immediately before the accident, she caught up to the contractor’s operator who was sanding the highway. The operator pulled over to let her pass and shortly thereafter, she lost control of the vehicle and crashed. The plaintiff asserted that even though she knew the road to be dangerous, the defendants had a duty to make sure the road was safe and its failure to do so caused the accident. The court concluded that money allocated to road maintenance is limited and therefore it is impossible to constantly keep all roads in perfect condition. The decision to maintain this specific highway at a lower standard than others should not be criticized. Although the court did not discuss the terms of the maintenance contract in any detail, it did conclude that the contractor complied with the contract and “acted as soon as reasonably possible”. The court dismissed the plaintiff’s action holding that the plaintiff knew of the danger and exposed herself to it.
Link: http://canlii.ca/t/1dj1p
Dagneault v Hatton, 1995 CanLii 1469 (BCCA)
Key Words: immediate application, patrol, de-icing, duty to warn, black ice
The defendant driver was found wholly liable for the motor vehicle accident in which he was driving down a steep hill during icy conditions and collided into a vehicle traveling up the hill. The defendant driver appealed the decision in regards to his claim for contribution or indemnity against the third party contractor. The defendant claimed that the contractor was negligent in that they failed to take appropriate ice control measures on the portion of the highway where the accident occurred, and failed to warn of such ice conditions. According to the Ministry Specifications, the maximum response time for black ice conditions was 3 hours. If such conditions were encountered during patrol immediate response was required. During patrol, black ice was encountered and an employee was told to attend the area and sand. The employee salted up the hill but continued along the highway first instead of immediately applying chains to the truck and continuing back down the hill. The court accepted evidence that even if the employee had responded immediately, he would not have been able to salt the area before the accident occurred as the defendant driver would have already driven past. In concluding that there was no breach of the contractor’s contractual responsibilities under the contract with the Ministry, the court found that nothing the contractor did or did not do caused the accident, and that the ice conditions were responded to promptly. The court further found that the contractor did not have a duty to warn. Black ice is an expected hazard of winter driving and the court stated that if there was a duty to warn then it had to be capable of general application, such as a permanent sign, which was not the responsibility of the contractor. The appeal was dismissed.
http://canlii.ca/t/1ddh8
Holbrook v. Argo Road Maintenance Inc. 1996 CanLii 3600 (BCSC)
Road Maintenance Standard of Care – Standard of Care is the Ministry’s Specifications – No Higher Standard than that of the Crown
In this case, the Plaintiff was injured when she lost control of the vehicle and skidded across the highway and collided with an oncoming vehicle. The last application of sand on the road had been two days prior to the accident, but there had been no new snow for several days. The court found that the road surface was not particularly slippery and was reasonably well maintained, apportioning no fault to the contractor for the accident. The court outlined that the duty of a road maintenance contractor towards highway users is to provide the maintenance standard set out in the Service Contract with the Ministry of Transportation and Highways. Court held that contractor will be in breach of its duty of care if it is in breach of the contractual maintenance standards, provided that the standards are within the Crown’s duty of care and are equal or less than a reasonable standard determined by the court, but the law doesn’t impose a higher standard of care upon contractors than the court would impose upon the Crown simply because of the provisions of the contract.
Link: http://canlii.ca/t/1f858
Mann v. District of Delta, 1998 CanLii 2970 (BCSC)
Reactive vs. Proactive Snow and Ice Control – Policy v. Operational Distinction – Pre-salting and Over-Salting
The Plaintiff’s husband died in a motor vehicle accident when he was proceeding downhill and his vehicle slid across the center line and collided with a truck. While not a strict road maintenance case, the allegations of negligence against the District of Delta are the same as would be found in a road maintenance action. The Plaintiff alleged that the District was negligent for taking over two hours to respond to slippery conditions reported by the police and relying on police reports and other outside sources. The Plaintiff further alleged that a system of pre-inspections or patrols of some nature to alert staff to danger points should have been in place as well as a more sophisticated system of monitoring impending climatic changes. The court held that the steps suggested by the Plaintiff were prototypically policy decisions (as opposed to operational decisions). The issue of “reactive versus proactive” snow and ice control procedures seems clearly to involve the weighing of economic and social factors. All the negligence arguments above were found by the court to be policy decisions, which allowed the District immunity from liability. Even if they were operational decisions, the court found that there was no evidence of negligent conduct by any of the persons engaged in the operation of their duties on the morning of the accident. They performed them exactly as the procedures required and exercised any discretion they did have perfectly reasonably. Further, to pre-salt and sand is not necessarily good practice at all – relatively small window in time before the weather condition occurs during which to lay down the materials. They can create problems of traction and damage to vehicles when laid down on dry roads. The mixture of salt and sand is not environmentally friendly and it presents a problem of clean-up. Finally, a more sophisticated weather forecasting capability and more immediate response capability would not have made any difference. Forecast of –1 and no precipitation could not have alerted the agents to attend the site of the accident, nor could a full-time standby person have been able to attend any faster.
Link: http://canlii.ca/t/1f6m9
Bradshaw v Rankel, 1999 CanLii 2138 (BCSC)
Key Words: snow plough, snow blind oncoming vehicle, duty of care, standard of care, reasonable snowploughing operations
The plaintiff was seriously injured in a motor vehicle accident. The plaintiff was driving southbound and a large truck with a snowplough operated by the defendant contractor was travelling northbound. After the plaintiff passed the snowplough he entered into the northbound lane and collided with a van that had been driving behind the snowplough. The plaintiff alleged that the defendant contractor was negligent in his operation of the snowplough, in that when she got near to him a significant volume of snow hit his windshield and blinded him. The court made a finding of fact that it was light blowing snow that obstructed the plaintiff’s visibility, and that the snow was airborne as a result of the snowplough hitting one or more snowdrifts in the area. While the court concluded that the contractor owed a duty of care to the plaintiff, it was held that the standard of care was “that of a reasonable snowplough operator, taking reasonable care for the safety of others using the highway.” The court noted that the plaintiff should have anticipated a momentary loss of visibility and governed himself accordingly. The court dismissed the action and held that the plaintiff caused the accident by losing control of the vehicle he was driving. The light airborne snow was a common product of reasonable snowploughing operations and therefore no negligence could be found.
Link: http://canlii.ca/t/1d42q
Belitchev v. Grigorov, 2000 BCSC 765
Standard of Care as set out in the Ministry’s Specifications – Foreseeability
The plaintiff was injured when the van he was a passenger in lost control on an icy corner and left the road. The van hit a telephone pole and the plaintiff was partially ejected (no seatbelt) resulting in him becoming a quadriplegic. Police and ambulance personnel found the road to be slippery at 4:05 am, shortly after the accident. Court found that at the time of the last patrol by the road maintenance contractor, the temperature was +5 degrees, the temperature was predicted to rise and there was no ice formed by that point. The primary issue was whether the contractor should reasonably have foreseen that ice might form on the roadway at the material time and location. The court took judicial notice that when temperatures are close to the freezing level and the skies are overcast, a clearing of the clouds can result in a drop in the temperature of the earth and the air immediately above it and the consequent formation of ice as a result of moisture from the cooled air being deposited on the cold earth. The court cited Holbrook v. Argo and held that the contractor’s duty to users of the highway is confined to carrying out the contractual duties under its maintenance contract with the Crown. The contract sets operational standards with which the contractor must comply. The court found that the employee on that day followed the patrol routine established by the contractor. The frequency with which he patrolled the highway exceeded the requirements of the contract with the Ministry. When he last passed over the accident site in the course of his patrols there was no ice on the highway. Some time after that, a sudden clearing of the clouds in the area of the accident site resulted in black ice forming on the road surface. The formation of ice was not reasonably foreseeable by the employee and it was not predicted by the forecast. The contractor was not liable for the accident.
Link: http://canlii.ca/t/52zp
ICBC v Hilbar Enterprises et al, 2005 BCSC 974
Key Words: summary judgement, conflicting evidence, affidavit evidence not sufficient
A tractor pulling two tanker trailers, one filled with gasoline and one with diesel oil, went off the road due to alleged black ice, which resulted in significant environmental and property damages. ICBC brought an action against the defendant contractor and Ministry claiming that they breached their duties to maintain the highway. The defendant contractor brought an application for summary judgment. The court was unable to grant summary judgment for two reasons: 1) there was conflicting evidence on the timing and extent of the application of sand and de-icing chemical in the area of the accident and it was not appropriate to resolve the conflicting evidence by affidavit evidence alone; and 2) if summary judgment was granted, the Province would remain as a defendant and the matter would need to proceed to trial against the Province in any event. The court noted that while a dismissal against the contractor may effectively end the Plaintiff’s claim against the Province, such a result was not certain. The court is reluctant to grant summary judgment where there are two defendants and the court found it relevant that the Province pleaded in part that, if the accident occurred as alleged, it was caused by the negligence of the contractor.
Link: http://canlii.ca/t/1l3ct
Talbot-Kelly v Fairfield, 2005 BCSC 357
Key Words: summary trial, exceeding Ministry Specifications, snow removal, salt application
The plaintiff was driving on the highway while it was snowing and lost control of his vehicle. His vehicle crossed the centre line and collided with another vehicle. The defendant contractor and the Province brought a summary trial application to have the action dismissed against them. The Ministry Specifications required the contractor to patrol in the area of the accident every four hours when freezing temperatures and snowfall are present. The evidence showed that the contractor actually patrolled four times in that period. The Ministry Specifications also required salt to be applied within 90 minutes of the time when temperatures are below freezing and the pavements are wet or snow is forecast. The area of the accident received three applications of salt in the two-hour period prior to the accident. Finally, the Ministry Specifications required the contractor to plough the highway when snow reached two centimetres. The contractor ploughed the area three times in the four-hour period before the accident and the court noted that the snowfall was far less than the maximum allowable snow accumulation of four centimetres. In granting the summary judgment and dismissing the claim against the defendants, the court found that the contractor had not only met the standards it was required to meet under the maintenance contract, but that the contractor had exceeded it. It should be noted that the plaintiff did not call any evidence and did not oppose the application.
Link: http://canlii.ca/t/1jx8k
Nason v. Nunes, 2007 BCSC 266
Reasonable State of Repair – Strict Private Law Standard of Care Does Not Apply to Contractor – Compliance with Contract is Prima Facie evidence that Contractor not Negligent
The passenger plaintiffs were injured when the defendant’s vehicle that lost control during winter driving conditions. The bridge had been sanded at least 14 hours prior to the accident, which met the requirements of the contract with the Ministry based on “C” road requirements. While the court agreed that the contractor’s maintenance activities were operational in nature, it disagreed that this meant that the strict private law standard of care applied to the contractor. The government policy decisions that went into the delegation of its operational responsibilities are highly relevant to defining the appropriate standard of care in these circumstances. The standard of care, as noted in Benoit v. Farrell, supra, is that the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety. What is a reasonable state of repair is a question of fact, depending on all the surrounding circumstances. The Crown is not subject to an unlimited duty to ensure the safety of users of the road and the standard of care does not extend to keeping every road free of ice at all times. The court held that a determination of what is a “reasonable state of repair” must necessarily be informed by the government’s policy decisions as to the level of operational responsibility delegated to its contractor for a classification “C” road. The low priority of this road necessarily informs the standard of care to be applied to the contractor, who is charged with discharging those aspects of the Crown’s operational responsibilities delegated to it pursuant to the maintenance contract. Court held in this case that compliance with the contractual duties delegated by the Crown was sufficient to meet the standard of care required of the contractor; however, compliance with or breach of the contract will not be determinative of negligence. Where a court considers that the maintenance contract provides for what is reasonable in the circumstances, compliance with the terms of the contract will prima facie establish that the contractor was not negligent.
Link: http://canlii.ca/t/1qs51
Collins v Rees 2012 BCSC 1460
Key Words: No Evidence Motion, Expert Evidence, Standard of Care, Icy Conditions
This case signifies the importance of expert evidence in highway maintenance cases. The plaintiff lost control of her vehicle and collided with the side of a tunnel, and was then struck by another vehicle. In claiming that the accident was caused by the maintenance contractor’s failure to properly prevent the buildup of ice, the plaintiff motorist brought an action in negligence against the defendants. After the plaintiff closed its case, the defendants sought an order dismissing the case on the basis that there was no evidence to support the essential elements of negligence. The defendant contractor argued that not only was there no evidence that the loss was caused by a breach of duty on their part, but that there also was no evidence that the collision was caused by icy conditions. The court noted that in order for a plaintiff to overcome a no-evidence motion, they must lead expert evidence on issues “where a layperson is unable to draw inferences as to the standard of care and causation as a matter of common knowledge”. In applying this test, the court found that determining the proper measures to maintain a highway system in a large metropolitan community is complex. Therefore it would not be reasonable to expect that a trial judge would be able to draw inferences as to the standard of care, and expert evidence would have been required. The judge granted the defendant’s no evidence application.
Link: http://canlii.ca/t/ft16t
