On September 19, the Supreme Court of British Columbia released its judgment in a case where a highway motorist was covered in snow by an overtaking vehicle, resulting in a single vehicle collision with a safety barrier.
In Link v. Insurance Corporation of British Columbia 2014 BCSC 1765, Mr. Justice Ball found the actions of the defendant driver to be negligent, contrary to ss. 157-159 of the Motor Vehicle Act, when he maneuvered dangerously while overtaking another vehicle in heavy snowfall conditions.
The plaintiff had been following tire tracks along the slow lane, or curb lane, while travelling southbound on Highway 99 during heavy snowfall. Traffic had been moving single file at approximately 40-60 kilometers per hour. The defendant driver’s SUV approached the plaintiff from behind then moved into the passing lane, overtaking the plaintiff’s vehicle at high speed before abruptly cutting in front of him. The maneuver resulted in a “rooster tail” of snow covering the plaintiff’s windshield. Unable to see, the plaintiff instinctively tapped the brake, which caused his vehicle to spin and collide with the cable-and-post safety median. At issue in this case was whether or not the defendant driver’s actions constituted negligence.
The Court identified the relevant provisions establishing a statutory duty of care, as follows:
 Sections 157-159 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] establish a statutory duty of care on the driver of a vehicle overtaking another vehicle. These provisions provide as follows:
157 (1) Except as provided in section 158, the driver of a vehicle overtaking another vehicle(a) must cause the vehicle to pass to the left of the other vehicle at a safe distance, and(b) must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle.(2) Except when overtaking and passing on the right is permitted, a driver of an overtaken vehicle,(a) on hearing an audible signal given by the driver of the overtaking vehicle, must cause the vehicle to give way to the right in favour of the overtaking vehicle, and(b) must not increase the speed of the vehicle until completely passed by the overtaking vehicle.158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except(a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,(b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or(c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right(a) when the movement cannot be made safely, or(b) by driving the vehicle off the roadway.159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.
In distinguishing this case from those proffered by counsel, the Court pointed out that here the hazard was clearly visible to all drivers on the road, and that despite this awareness, the defendant chose to conduct his vehicle in a manner which he did know or ought to have known would result in snow blanketing the plaintiff’s vehicle, stating:
 In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have - or should have - appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.
In finding that the defendant driver fell short of the statutory standard outlined in the above provisions of the Motor Vehicle Act, Mr. Justice Ball stated:
 There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.
 Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.
 No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.
 In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.
posted by Collette Parsons at 3:42 PM