Many people are aware of the liability that may arise as a result of involvement in a motor vehicle accident that involves another motor vehicle or cyclist, motorcyclist or pedestrian, wherein fault can typically be attributed to one party or another or divided amongst several contributing parties, fewer people consider what happens when to avoid striking an animal in a roadway, they swerve their vehicle, and either cause an accident with another vehicle or person or cause injury to the passengers in their vehicle. An animal cannot be legally liable for causing damage, so what happens? Are such accidents considered “no-fault” because they involve animals that cannot be held responsible? Fortunately, the recent British Columbia Supreme Court decision in Dehal v Dhaliwal is instructive.

Deer in Roadway Causes Car Crash

The case of Dehal v Dhaliwal involved the defendant, Gurmel Dhaliwal (“Gurmel”), driving his 4-door sedan down Bailey Road on the afternoon of June 9, 2018, in Vernon, British Columbia. On the day in question, there were two passengers in Gurmel’s vehicle: his wife, Amar, who was seated behind him in the left backseat, and her brother, Gurdeep, who was seated in the right front passenger seat of the vehicle. While conducting his vehicle southbound on Bailey Road at a speed of approximately 50-60 km/h (the posted speed limit on that road is 60 km/h), Gurmel suddenly saw a deer appear on the road, so he swerved sharply to the right to avoid striking the animal. As a result, Gurmel lost control of his vehicle, which went off the road and into a dry ditch at the right-hand side of the road. Gurmel’s vehicle moved approximately 60 metres through the ditch before it came to rest. The accident caused significant damage to Gurmel’s vehicle, although none of the damage resulted from contact with the deer, which appeared to have escaped the accident without injury. Gurmel’s passengers were not so fortunate and sued him for negligence.

Legal Principles Applicable to Negligence

There are three elements that a plaintiff must prove to make a legal claim of negligence successfully:

  1. That the defendant owed the victim a duty of care
  2. That the defendant’s behaviour violated that standard of care
  3. That the plaintiff suffered damage or injury
  4. That the damage or injury suffered was caused “in fact and in law, by the defendant’s breach.”

Further, a person who operates a motor vehicle “has a duty to conduct himself not to expose other highway users to unnecessary risk of harm. That driver will be at fault if he does not exercise the reasonable care, skill or reasonable self-possession required in the circumstances, whether in emergency or ordinary circumstances”. 

For a driver’s behaviour to be considered negligent, it must “create an objectively unreasonable risk of harm.” In determining whether the driver’s behaviour created an unreasonable risk of harm, “the court must assess whether or not that person has exercised the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.” It must be noted that the standard expected of any driver is that of reasonable care, which is different from an expectation of perfection. To that end, the fact that a driver lost control of their vehicle does not automatically give rise to an assumption that such a driver was negligent, as a reasonable driver in similar circumstances may have ended up in an identical position. As such, every case of negligence alleged concerning an animal-caused motor vehicle accident must be assessed on its own merits. 

Finally, it is important to recognize that the driver of any motor vehicle owes a duty of care not only to other drivers, cyclists, and pedestrians with whom they share the road but also to their passengers. The burden is on the person who alleges damage or injury to prove that the driver did not meet the standard of care.

Legal Principles Applicable to Animal-Caused Motor Vehicle Accidents

In cases where it is alleged that a motor vehicle driver acted negligently in reaction to the presence of wildlife on the roadway, the court will consider the above-noted principles of negligence and adapt them to the circumstances at hand. As stated by the BC Supreme Court, “these cases all depend on the facts,” such that “[w]hether a driver is negligent when he runs into wildlife on the road depends on all of the circumstances of the particular case.” 

Application of the Legal Principles to the Case at Hand

First and foremost, the court noted that drivers owe passengers a duty of care, which meant that the first criterion necessary for a finding of negligence had been satisfied. 

Regarding whether that duty had been breached, the court detailed the specific accident circumstances in this case. In particular, the court found it relevant that Gurmel had regularly driven the same route he was driving on the day in question for 8 or 9 years before the accident. As such, Gurmel was intensely familiar with the driving conditions applicable to that road in all types of weather conditions and was familiar with road signs that advised motorists to look for wildlife in that area. Furthermore, Gurmel had previously observed animals on the roadway in the very area where the accident occurred (mostly deer, sometimes coyotes). Given Gurmel’s familiarity with the area, the court concluded that “the hazard presented by the presence of a deer on or near Bailey Road in the vicinity of the accident at that time of year and in all the circumstances was very definitely reasonably foreseeable.” 

Given that the weather on the day of the accident was clear and bright and that there was no vegetation or other topography that could have obstructed Gurmel’s view of any animal in the roadway on that day, the court was left with the “irresistible conclusion … that the defendant simply did not see the deer, when it was there to be seen, and that he was simply not paying sufficient attention”. Moreover, “The defendant ought to have been very aware of the risk of wildlife in the area, from his prior experience. He should have been very alert to the potential presence of wildlife on or near the road”. 

The court also concluded that Gurmel “was probably moderately exceeding the speed limit” at the time of the accident, given that, had he been travelling at or below the speed limit, he would have had sufficient time and distance to apply the vehicle’s brakes and thus avoid the collision. 

The court was satisfied that Gurmel had failed to meet the applicable standard of care in that he was travelling at a speed that was too fast for the conditions of that road, given the known hazard of animals on the roadway in that area, and; “had he been paying careful attention, as he should have, he ought to have been able to see the deer in time to avoid a collision, by simply braking the vehicle, rather than veering sharply to the right, and losing control of it.” Hence, Gurmel was found to have owed his passengers a duty of care and breached that duty. 

Contact Meridian Law Group In Vancouver To Discuss Your Personal Injury Claim

If you are involved in a personal injury claim, either as defendant or plaintiff, you must engage excellent counsel. Whether you suffered catastrophic injury or only minor property damage, the personal injury litigation lawyers at Meridian Law Group have the expertise and experience to guide you through this complicated and intimidating process. 

Meridian Law Group, from its offices in downtown Vancouver, is proud to serve clients throughout the province of British Columbia. Contact Merdian Law Group online or by telephone at (604) 687-2277 to schedule a confidential consultation.