IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Racy v. Leask,

 

2011 BCSC 846

Date: 20110628

Docket: M2066

Registry: Powell River

Between:

Shirley Geraldine Racy

Plaintiff

And

Grace Leask and Jack Lyman

Defendants

And

Insurance Corporation of British Columbia

Third Party

Before: The Honourable Madam Justice Ker

Reasons for Judgment

Counsel for Plaintiff:

I. Fleming

Counsel for Defendants:

J. Perry as agent for M. Shaw

Counsel for Defendants and Third Party:

J. Perry

Place and Date of Trial:

Powell River, B.C.

November 23-24, 2010

Place and Date of Judgment:

Powell River, B.C.

June 28, 2011


 

I.        Introduction

[1]             This motor vehicle action arises from an accident that occurred sometime after 7:00 p.m. on or about October 18, 2006, on the Yellowhead Highway #16 (“Hwy. #16”) between Prince Rupert and Terrace, B.C., in the vicinity of the entrance to the Kasiks Wilderness Resort and Lodge (the “Kasiks Resort”). The distance between Prince Rupert and Terrace is approximately 150 kilometres. In the area where the accident occurred, Hwy. #16 is a two-lane paved highway with no barrier or median at the centre line. The highway travels through a largely forested and mountainous wilderness area that includes the Skeena River Valley and the Kitimat and Coastal Mountain ranges.

[2]             On the evening in question the defendant, Grace Leask, was driving a 1998 Ford F150 pick-up truck eastbound on Hwy #16. The plaintiff, Shirley Racy, was a passenger in the vehicle, which was owned by Ms. Leask’s partner, Jack Lyman.

[3]             Ms. Leask and Ms. Racy were driving east from Prince Rupert heading towards Terrace, B.C. on Hwy #16. Their ultimate destination was a place called Cranberry Junction, located north of Terrace off Hwy. #37, where they were returning to resume their work as mushroom pickers at the camp located in that area. They left Prince Rupert sometime around 6:00 p.m.

[4]             An hour or so into their trip, about 90 km east of Prince Rupert and 60 km west of Terrace B.C,, Ms. Leask drove around a corner or bend in Hwy. #16 and saw in her headlights two moose: a mother and her calf, moving from the right hand shoulder of the highway and starting to cross the highway from the south side of the road to the north side of the road. Upon seeing the two animals Ms. Leask said to Ms. Racy words to the effect of “there’s a moose, hang on,” applied the brakes and slowed her vehicle in an effort to avoid hitting the two moose but was not entirely successful.  Ms. Leask’s pick-up truck clipped the hind end of the mother moose with the driver’s side mirror. The moose calf was hit by the right front corner of the pick-up truck and appears to have bounced off the right front quarter panel of the vehicle, smashing the right front headlights and buckling the front hood and right front quarter panel above the front wheel. Neither the windshields nor windows were damaged in the collision.

[5]             Ms. Racy claims she sustained soft tissue injuries to her neck and back as a result of the collision. She alleges Ms. Leask was negligent in failing to apply the vehicle brakes with more force in order to avoid hitting the two moose who, according to Ms. Racy, were about half a mile away from the vehicle when they were first sighted. Thus, argues the plaintiff, the defendant driver did not do enough to avoid the accident and submits that a reasonable person would at least have stopped as quickly as possible in the circumstances, honked the horn, moved into the oncoming traffic lane, which was clear of any other traffic at the time or pulled to the right hand shoulder of the road.

II.       Issues

[6]             The sole issue in this trial is liability. Ms Racy argues Ms. Leask was negligent in her manner of driving in failing to keep a proper lookout and failing to take any evasive action such as slowing down more quickly by applying the brakes more forcefully in order to avoid the collision.

[7]             The defendants and the third party, the Insurance Corporation of British Columbia (“ICBC”), argue Ms. Leask was not negligent in her driving and that the collision with the moose was inevitable given their location moving onto the road and their proximity to the truck when it rounded the bend or corner on the highway. The defendants and third party further argue that Ms. Leask’s actions of slowing as she did in the circumstances was the action of a reasonable, prudent driver and accordingly there was no negligence in her manner of driving in the circumstances.

III.       Evidentiary Synopsis

[8]             Three witnesses testified in this trial, Ms. Racy for the plaintiff and Ms. Leask and Mr. Lyman for the defendants. Three exhibits were entered: exhibits #1 and #2 contained photographs of the area, taken by the plaintiff and the defendant respectively. It should be noted that both sets of photographs were taken at least two years after the accident. The photographs show two areas within the same stretch of highway but slightly different in location and perspective as to where the accident occurred.

[9]             I turn now to a summary of the salient features of the evidence. Although I may not mention all the evidence I heard on this trial, I have considered all of the evidence adduced in arriving at my conclusion.

The evidence of Shirley Geraldine Racy

[10]         Shirley Racy lives in Powell River, B.C. but travels the coastal area of the province in the mushroom season, picking and buying mushrooms. One such area Ms. Racy travels to is Cranberry Junction, a small community north of Terrace located off Hwy. #37, which is where she was stationed in October 2006.

[11]         On or about October 18, 2006, Ms. Racy travelled as a passenger with Ms. Leask from Cranberry Junction into Prince Rupert. Ms. Racy went to visit her daughter while Ms. Leask went home to do laundry and check on her residence. The parties had made a day trip into Prince Rupert and were intent on returning to Cranberry Junction that same day. Around 5:00 p.m. Ms. Leask told Ms. Racy they needed to leave Prince Rupert as she did not like driving at night. Ms. Racy and Ms. Leask left the store where Ms. Racy’s daughter was working, went back to Ms. Leask’s residence and then left Prince Rupert 30 to 45 minutes later.

[12]         Ms. Racy, who does not drive, rode in the front passenger seat of Ms. Leask’s Ford pickup truck for the return drive to Cranberry Junction.

[13]         Ms. Racy recalled the plan was to drive the entire distance to Cranberry Junction that night notwithstanding Ms. Leask’s purported comments about not liking driving at night as she found it difficult to see. As they drove along the highway, Ms. Leask and Ms. Racy talked about a woman who had been killed in an accident the previous year when her vehicle hit a moose on the same stretch of Hwy #16. Ms. Leask had pointed the area out to Ms. Racy on their drive into Prince Rupert earlier that day.

[14]         Ms. Racy did not know how long they had been driving on their trip back to Cranberry Junction, largely because she was not paying any particular attention to the matter, but at some point in the drive, near the Kasiks Resort, Ms. Racy testified that as they drove around a corner Ms. Leask said “there’s a moose, hang on.” Ms. Racy grabbed the handle above the passenger door frame and “really hung on.” It was her evidence that it was still bright enough to see two moose: a mother and calf. Ms. Racy testified that even though she has difficulty seeing, when she looked up she saw the two moose at least a half mile ahead of them on a long straight stretch of road, standing at the right hand shoulder side of the highway.

[15]         Ms. Racy testified that she really hung on to the handle above the door but kept wondering why Ms. Leask did not slow down or stop as in her mind there appeared to be plenty of room to do so and there was no other traffic. She also wondered to herself why Ms. Leask did not pull over to the side of the road and simply let the moose cross the road. Ms. Racy testified that she bent forward and as she was returned to an upright position upon the impact, she saw the moose calf going by her passenger window.

[16]         Four years later, in October 2010, Ms. Racy returned to the area, the first time since the accident, and took some photographs of the location where she recalled the accident occurring. The three photographs, contained in Ex. #1 at Tab 1 were taken at about 3:00 p.m. and depict the area as she recalled it to be on October 18, 2006. Apart from the fact that it was a bit darker when the accident occurred, there was no snow or ice and the highway was dry on October 18, 2006.

[17]         Ms. Racy testified, and marked on the photographs, where she first saw the moose and where they were when Ms. Leask hit them. Ms. Racy first saw the two moose on the shoulder area of a straight stretch of the highway, near some railway lights and east of the 100 km/h speed limit sign. The photographs depict a wider area of shoulder and gravel pull off spot east of the 100 km/h speed limit sign. West of the speed limit sign however, there is a smaller shoulder area and ditch. Ms. Racy indicated that when Ms. Leask hit the moose calf, both moose were much closer to the 100 km/h sign, the mother moose was at the centre line of the highway and the moose calf was on the fog line on the right hand side of the highway.

[18]         Ms. Racy explained that the corner they rounded when Ms. Leask gave her warning about the moose was not depicted in the photographs she took but estimated it was three to four car lengths back (west) from the point of view in the photographs.

[19]         Ms. Racy testified there was no traffic in the area when the vehicle hit the moose; and, that Ms. Leask took no evasive action, continued to drive straight and did not slam on her brakes. Despite not being a driver, Ms. Racy was of the opinion Ms. Leask did not slow down fast enough to avoid the collision, explaining that in her opinion there was plenty of room to slow down. Ms. Racy explained that as she held onto the handle her head moved towards the dash of the vehicle and motioned for the court in a fashion consistent with a body movement forward when brakes are applied. As she started to return back to an upright seated position, at the same time as the impact with the moose calf, Ms. Racy then saw the moose calf “go by” her window.

[20]         Ms. Racy testified that, after the collision with the moose, Ms. Leask immediately pulled the truck over off the pavement and onto the gravel shoulder area depicted in photograph #3, near the cement area at the railway lights and the single railway line. On the other side of the railway line there were trees and then the Skeena River. Ms. Leask wanted to stop and look at the moose calf and got out of the vehicle, but Ms. Racy screamed at her that the mother was still in the area and she returned to the truck.

[21]         Ms. Racy explained that when Ms. Leask returned to the truck, they set out again but she estimated they pulled over into the Kasiks Resort after about 5 minutes of driving as the vehicle was making an unusual noise. The cook at the lodge explained the kitchen had closed as it was after 8:00 p.m. when they arrived. They left their damaged vehicle at the Kasiks Resort and the cook gave them a ride into Terrace. None of the pictures in Ex. #1 depict the entry to the Kasiks Resort which Ms. Racy described as being “down the road and around the bend.”

[22]         Ms. Racy disagreed that the photographs in Ex. #2 at Tab 8 accurately depicted where the collision with the moose occurred and explained that the encounter was farther east of the area depicted in those photographs.

[23]         Ms. Racy was cross-examined on the contents of her November 30, 2006, statement to an ICBC adjuster as well as her comments to a doctor in March 2007, both of which intimated the collision happened very quickly. However, Ms. Racy disagreed with the suggestion that the collision occurred fairly quickly and reiterated the moose were a fair distance away when first sighted.

[24]         Ms. Racy acknowledged she told another doctor within weeks of the accident that it was night time or dusk when they encountered the moose but then contradicted herself in cross-examination and said it was not dark out when the collision occurred. Later still in cross-examination Ms. Racy acknowledged that within 5 minutes of the collision they were at the Kasiks Resort and it was dark. She eventually agreed that if it was dark at the time of the collision she would be unable to see half a mile down the road and would only see what the vehicle headlights illuminated.

[25]         Ms. Racy was also inconsistent in her evidence as to whether or not Ms. Leask applied the brakes when she saw the moose. She testified in direct examination that she did not notice any braking activity or reduction in speed. In cross-examination, however, she acknowledged Ms. Leask did slow down and apply the brakes, but she did not know to what degree. She later testified she did not feel the brakes being applied and that the vehicle stopped when they hit the moose. Ms. Racy was reluctant to acknowledge that Ms. Leask had applied the brakes and repeatedly responded that Ms. Leask had not slowed down enough to allow the moose to cross the road.

[26]         Ms. Racy recalled speaking to Jack Lyman, Ms. Leask’s partner, the next day when they arrived back at their motor home in Cranberry Junction. Although she recalled telling him they hit a moose, she could not recall the full conversation. Despite this acknowledgment, Ms. Racy denied telling Mr. Lyman words to the effect of “if it had not been for Grace’s driving [they] might not be here.”

[27]         Ms. Racy also contradicted herself about whether there were signs on the road warning of moose in the area. Cross-examined on an earlier affidavit, where she deposed there were signs all along the highway, she testified she did not see any such signs but said she was not looking for them. She further explained that because she does not drive she does not pay attention to the signs because she is only the passenger.

[28]         The final question in Ms. Racy’s cross-examination was fairly telling as to the nature of this collision and the attention Ms. Racy was paying to the circumstances at the time:

Q.      I suggest to you that Grace Leask put on the brakes and slowed down the vehicle but she didn’t slam on the brakes, do you agree with that?

A.       I wasn’t, I wasn’t paying attention at that, I just noticed and kept putting in my head that she should be slowing down more.

 

The evidence of Grace Maxine Leask

[29]         Grace Leask lives in Prince Rupert, B.C. and is well familiar with the stretch of Hwy. #16 between Prince Rupert and Terrace. She has been driving for approximately 10 years, and in the years since the accident she travels this stretch of highway about two times a week. There are no posted signs alerting drivers to moose in the area although she has seen one or two moose in the area since the accident. Ms. Leask described herself as a cautious driver who usually slows down to about 20 km/h below the speed limit when driving at night as it is difficult to see.

[30]         Ms. Leask and Ms. Racy have been friends for 20 years and on October 18, 2006, they were returning from a day visit in Prince Rupert to Cranberry Junction and the camp where they were working.

[31]         Ms. Leask recalled that during the drive to Prince Rupert, earlier that same day, she had a conversation with Ms. Racy about a woman who had been killed in an accident when her vehicle hit a moose in the general area of their drive.

[32]         Ms. Leask recalled they left Prince Rupert for the drive back to the camp close to 6:00 p.m. When they left Prince Rupert it was still light out, but by the time they encountered the moose it was dark. Ms. Leask explained that the driving conditions for the highway were good: it was dry and there was no fog or rain. The posted speed limit in the area was 100 km/h.

[33]         Ms. Leask and Ms. Racy were talking. As the vehicle rounded a corner or bend in the road Ms. Leask saw two moose on the right hand side of the highway and they were moving. Ms. Leask recalled having her vehicle headlights on high-beam at the time. She immediately told Ms. Racy to “hang on” and was 95% sure she immediately applied the brakes to slow the vehicle down. Ms. Leask estimated she was driving at about 85 to 90 km/h when she rounded the corner and encountered the moose. She estimated the moose were about three to four car lengths away when she first saw them at the side of the road. She explained she did not slam on the brakes for fear of losing control of the vehicle, notwithstanding it was equipped with an antilock brake system.

[34]         Within a couple of seconds of seeing the moose and slowing down her vehicle, Ms. Leask testified they were “on the moose” with the mother having crossed the eastbound lane for traffic, moving into the oncoming traffic lane. The moose calf was starting to head from the shoulder area of the road for the eastbound lane of traffic towards the lane of travel Ms. Leask was driving in. Ms. Leask explained she kept the vehicle in her lane of travel and under control to the best of her ability. She explained she was unable to swerve into the oncoming traffic lane as the mother moose was in it and she would have hit it head on. Ms. Leask also could not swerve to the right shoulder area as then she would have hit the moose calf head on with her vehicle. Furthermore, she was nervous that driving on to the shoulder of the highway at the rate of speed she was driving might result in her losing control of the truck and flipping it.

[35]         Ms. Leask testified that she did not have much time to slow down as the moose continued to move and by the time she slowed the vehicle to about 25 or 30 km/h the moose were right in front of her with the mother having crossed the highway into the oncoming traffic lane and the moose calf moving from the shoulder towards their lane of travel. Ms. Leask clipped the rear end of the mother moose with the driver’s side mirror and hit the moose calf around its neck or shoulders with the right front corner of the passenger side of the truck. She described the motion of hitting the moose calf as like an impact with a pillow.

[36]         After hitting the moose calf, Ms. Leask stopped the truck and wanted to check on it but remained in the vehicle at Ms. Racy’s suggestion. Ms. Leask continued to drive, intending on returning to the camp, but the truck was making “weird noises” and so she pulled into the Kasiks Resort, which she estimated was anywhere from 300 metres to about one kilometre away.

[37]         Ms. Leask was clear in her evidence that it was dark out at the time of the accident and as such neither she nor Ms. Racy were able to see beyond the reach of the headlights, let alone half a mile into the distance on the highway. Although inconsistent as to the time of their departure from Prince George as between her statement to ICBC and her evidence at trial, the inconsistency, given the passage of time, was not that significant, particularly as either departure time would have resulted in the area where the accident occurred being dark when they encountered the moose.

[38]         Ms. Leask took photographs of the area in January 2009 that were marked as part of Ex. #2. She marked on the photographs at Tab 7 and 8 of Ex. #2 the area where she first saw the moose. She explained that at the time of the accident, the trees depicted in the photographs still had their leaves and that the third photograph at Tab 8 of Ex. #2 showed tree stumps that were actual trees at the time of the accident but had since been cut down. The last photograph in Tab 7 was taken east of the entrance to the Kasiks Resort and depicts, far off in the distant background, the corner area where they encountered the moose.

[39]         Ms. Leask was cross-examined extensively including about her assumptions of rolling the vehicle if she slammed on the brakes notwithstanding the fact the vehicle was equipped with an antilock braking system and also about her certainty of applying the brakes. It was clear from her answers that the events happened very quickly and her natural reaction was to apply the brakes to the extent that she thought was appropriate for the circumstances she was faced with at the time. Although Ms. Leask agreed she might have been able to apply more force to the brakes, she did not know what the result would be and if that would result in a swerve in either direction from her line of travel.

[40]         In cross-examination, Ms. Leask revised her estimate of time between first seeing the moose and hitting them from a couple of seconds to seven or eight seconds. Despite this revision, Ms. Leask maintained she did not have time to take other evasive measures apart from applying the brakes and slowing down. As best she could determine from the circumstances that confronted her, swerving in either direction from her lane of travel would have resulted in hitting either one or the other of the moose head on.

[41]         Ms. Leask acknowledged she was aware of the potential danger of moose and wildlife in the area and reduced her speed to between 85 and 90 km/h, below the posted speed of 100 km/h, for that possibility of a night time encounter. Although she had her headlights on highbeam at the time she was driving, Ms. Leask was still surprised by the moose, which were located on the right hand side of the highway although not concealed by any of the surrounding brush.

[42]         Ms. Leask was cross-examined on her statement to ICBC given on August 2, 2007.  She corrected her statement that they left Prince Rupert just before 7:00 p.m. and revised their departure to just before 6:00 p.m. She adopted from her statement her description of the location of the accident as happening just after rounding the corner onto the straight stretch just before the Kasiks Resort and that it was dark at the time. Ms. Leask also explained that when she used the term corner she meant the bend in the road. Despite adopting her ICBC statement about where the accident occurred, Ms. Leask disagreed with the suggestion that Ms. Racy’s photographs were more accurate in their depiction of the location of the accident on a long straightaway and reiterated her photographs more accurately depicted where the accident occurred.

The evidence of Jack Valentine Lyman

[43]         Jack Lyman, Ms. Leask’s partner, has lived in Prince Rupert for 50 years and travelled the route of Hwy. #16 between Prince Rupert and Terrace, B.C. numerous times. There are no signs warning of moose in the area where the accident occurred and Mr. Lyman has not often seen moose in that area.

[44]         Mr. Lyman testified that the day after the accident, when Ms. Racy and Ms. Leask returned to the camp at Cranberry Junction, Ms. Racy came into the defendants’ motor home, and briefly spoke with Mr. Lyman about the accident. Ms Racy told Mr. Lyman they had hit two moose on a corner and said, as she was leaving, words to the effect of “if it was not for Grace’s driving, we might not be here now.” Ms. Racy then left the motor home.

[45]         In cross-examination Mr. Lyman did not recall if he included this conversation in his statement to ICBC and acknowledged it was not included in his January 14, 2010, affidavit filed on an earlier Rule 18A application that sought to have the plaintiff’s action dismissed. However, Mr. Lyman did not appear to fully understand the import of the Rule 18A proceedings in July 2010, stating he did not really know why he travelled to Powell River in July other than he was told to be there for the application.

[46]         Mr. Lyman acknowledged that in hindsight the conversation with Ms. Racy probably was important but he did not think so at the time. He explained he did not think about it until he walked out of the courtroom in July 2010 and then told both counsel of his recollection. He further explained he did not recall the other small talk in the conversation with Ms. Racy because the accident occurred in 2006 and he was not aware that he was being sued until almost a year later. When it was suggested to Mr. Lyman that the conversation did not occur, his reaction was swift and visceral: he testified he did not come all this way, which I took to mean travel from his home in Prince Rupert to the trial in Powell River, to make something up, that he would not make something like this up and added that the plaintiff and her partner are his friends and he does not like the situation he finds himself in.

Findings of Fact from the Evidence

[47]         The evidence of Ms. Racy and Ms. Leask on the key factual points of location of the accident, lighting conditions and distance between the moose and the vehicle when the moose were first sighted conflicts and must, therefore, be scrutinised with particular care. The credibility of each should be analysed, taking into account the following test for the assessment of credibility of interested witnesses as stated by words of O’Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the current existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions

[48]         The primary difficulty presented in this case is the seemingly unreliable recollections of the parties involved, no doubt given the passage of time between the accident and the trial nearly four years later. This difficulty is highlighted by the lack of agreement as to where exactly the accident occurred, the difference in the perspectives provided by the photographs adduced by each side, the significant delay between the accident and the taking of any photographs of the area in issue, and the absence of any depiction in the photographs of the actual bend or corner in the highway that was rounded immediately prior to encountering the two moose.

[49]         I do not find either Ms. Racy or Ms. Leask to be lying about the events, but both witnesses were unreliable in their recollection as to where precisely they were on the highway, relative to the photographs, when they first encountered the moose at the side of the road. The lack of reliability and clear recollection is in part the product the lack of need to pay close attention to their surroundings and what was going on immediately before encountering the moose, coupled with the intervening passage of time since the accident. The unreliability of their recollections is no doubt heightened by the following facts: (1) it was dark by the time they encountered the moose; (2) the incident happened quickly; (3) they did not remain at the scene of the accident but moved on to the Kasiks Resort; (4) neither party appears to have endeavoured to solidify in their memory the precise location of the accident until many months after the accident when they each returned to the scene to take photographs of it 48 months (Ms. Racy) or 27 months (Ms. Leask) after the incident; and, (5) neither party included a depiction of the bend or corner they both acknowledge rounding before encountering the moose.

[50]         I note that the photographs in Ex. #1, provided by Ms. Racy, and the photographs in Ex. #2, provided by Ms. Leask, are not of the exact same area but appear to be of the same general vicinity. Ms. Leask’s photographs are to the west of the 100 km/h speed limit sign depicted in Ms. Racy’s photographs. Ms. Racy acknowledged that her photographs do not depict the corner they rounded. It is evident, however, from Ms. Leask’s photographs, especially those at Tab 8 of Ex. #2, that there is a slight bend in the road in the foreground that then straightens out at the location Ms. Leask indicates as where the moose were sighted and started to cross the highway.

[51]         The photographs in Ex. #1 and Ex. #2 provided by the parties assist in showing the general location and physical layout of the area of highway but neither set of photographs depict the actual corner or bend in the road the vehicle came around when the moose were encountered.

[52]         What is clear from the evidence of both parties is that the two moose were encountered after rounding either a bend or corner in the highway. Ms Leask’s immediate reaction was to issue a warning to Ms. Racy to hang on because there were moose at the side of the road just ahead of them. The area where they encountered the moose was a remote location of the two lane highway with a small paved, and then gravel, shoulder, trees and bush, a small ditch (in the area of the posted speed sign), a railway track and the river all to the right of the east bound vehicle. To the left of the centre line was the oncoming traffic lane, then a paved and gravel shoulder, trees and bushes, possibly a ditch and then a hillside area.

[53]         Given the time of year, the fact that they were driving in a mountainous area, had left Prince Rupert close to 6:00 p.m, and had to have travelled for at least an hour to make it to the vicinity of the Kasiks Resort, 60 km west of Terrace, I find Ms. Racy is mistaken in her assessment of the lighting conditions and the ability to see the moose half a mile away. Ms. Racy acknowledged in cross-examination it was dark by the time they stopped at the Kasiks Resort for help and that this stop occurred within minutes of the impact with the moose and was less than a kilometre away.

[54]         Based on the totality of the circumstances, I find that Ms. Leask’s collision with the moose occurred sometime after 7:00 p.m. on October 18, 2006, and that it was dark at the time. Ms. Leask was driving east bound on Hwy #16 and travelling between 85 and 90 km/h - 10 to 15 km/h an hour less than the posted speed limit of 100 km/h.

[55]         There was little in the way of traffic on the stretch of road where the collision occurred. The road conditions were dry. Photographs taken of the vehicle in the Kasiks Resort parking lot the next day establish the trees still had their leaves.

[56]         I find that Ms. Racy, based on her own admission, was not paying any particular attention to the surroundings or what was going on during the drive until her attention was drawn to fact that there were moose up ahead and told to hang on by Ms. Leask. Although Ms. Racy believes she saw the moose half a mile down the road, that would be a physical impossibility as it was dark at the time in an area devoid of artificial lights that could illuminate the surroundings.

[57]         It is clear from Ms. Leask’s evidence that the best she could do was only roughly estimate distances and time involved between her first sighting of and then collision with the moose. This is not surprising given the circumstances of rounding a bend or corner in the road and encountering wildlife on the side of the road. Her focus no doubt was on how to address the emergency she was confronted with and how best to respond to it. It is clear from Ms. Leask’s evidence, which I accept, that events happened very quickly and, despite trying to be prepared for wildlife on the highway by reducing her speed, she nevertheless was surprised by seeing the moose in the beam of her headlights as she rounded the bend or corner of the road.

[58]         Ms. Leask was very familiar with the road in question, as she drives it on a regular basis and has done so for a number of years. There are no posted signs for moose in the area, although Ms. Leask was aware that moose had been sighted in the area on a previous occasion. She had not seen any moose in the area before the accident, and maybe only one or two since the accident. Nevertheless, she was aware of the possibility of wildlife on this stretch of highway. Ms. Racy does not drive, and did not pay attention to whether there were signs about moose in the area. It is clear that although the area might have wildlife from time to time, it is not a “moose alley” area.

[59]         I accept that Ms. Leask was driving slower than the speed limit, travelling at about 85 to 90 km/h, because it was her practice, particularly at night time, and in part because she was aware wildlife could be seen in the area.

[60]         Ms. Racy testified that as they came around the bend, Ms. Leask said “moose, hang on,” and she braced herself by grabbing the handle above the passenger door. She testified that she kept wondering why Ms. Leask was not slowing down faster as, in her estimation, they had plenty of time to stop or take evasive action.

[61]         I accept Ms Racy saw the moose before the impact occurred but, because it was dark at the time, she could not have seen them half a mile away and that in fact they were much closer than what she believes they were and what she testified to. As it was dark, the moose would only be visible in the headlight area of Ms. Leask’s vehicle, a considerably shorter distance than half a mile. Accordingly, I cannot rely on Ms. Racy’s estimation that the moose were half a mile away when she first saw them.  She would only be able to see what was illuminated by the headlights.

[62]         Ms. Racy’s positioning of the moose on her photographs in Ex #1 also gives me pause as to the accuracy and reliability of her observations and recollection. On photograph #3 she marked where the two moose were said to be standing when she first saw them. Her positioning of them at the time of impact has them travelling a fair distance west on the shoulder of the highway towards the 100 km/h sign and is inconsistent with the evidence that the mother moose moved across the road from where Ms. Racy says she originally saw them.

[63]         I do not find Ms Racy to be lying on this point but simply mistaken, and therefore unreliable, as to where the accident occurred and how quickly or slowly it occurred. Ms. Racy never went back to the scene of the accident until she took her photographs in October 2010.

[64]         Ms. Leask’s evidence is that as she rounded the bend or corner in the road, well in advance of the 100 km/h sign, she saw the moose and immediately told Ms. Racy “moose, hang on.” At the same time, she applied her brakes but did not slam them on and slowed down as best she could. She testified that within a matter of a couple of seconds they were “on the moose,” and by then the mother was across the truck’s lane of travel and into the oncoming traffic lane. The calf was starting to cross the road from the right hand side shoulder. By the time Ms. Leask made contact with the calf she estimated she had slowed to around 25 kms.

[65]         Ms. Racy did not recall any evasive action being taken by Ms. Leask and that she continued to travel straight ahead and slow down. In cross-examination she agreed Ms. Leask applied the brakes, just not enough given the distance she says the moose were from the vehicle. She then contradicted herself and said she could not say if Ms. Leask applied the brakes. When it was suggested in cross-examination that Ms. Leask applied the brakes and slowed down but did not slam on the brakes, Ms. Racy replied that she was not paying attention to that and had in her mind that Ms. Leask should have been slowing down more. Given her inconsistency on the application of the brakes and her acknowledgement that she was not paying attention to that, I find that serves to further undermine her reliability as to what she saw, when she saw it and how long she had to observe it. I find Ms. Racy’s recollection of the events of how much time there was to stop between seeing the moose and the collision with the moose to be, in all the circumstances, unreliable.

[66]         Ms. Leask explained she did not have time to take evasive action; she simply slowed and applied her brakes, but did not slam on the brakes as she did not know whether they might have ended up in the ditch or what would happen to them. She explained she continued to travel in her lane straight ahead because she felt if she swerved to the right she would have hit the calf head-on and if she had swerved left into the oncoming traffic lane she would have hit the mother head-on. She denied she had lots of time to slow down and explained she did not drive on the shoulder as she believed, in addition to hitting the moose calf, she could have flipped the truck, given the speed she was initially travelling at.

[67]         Ms. Leask endeavoured to slow her vehicle and not hit either moose, but testified she did not have enough time to take any other measures or steps. Ms. Leask did not slam on her brakes, notwithstanding the anti lock brake system, as she was not sure what the result would be in doing that either. Ms. Leask believed she did the best she could in the circumstances she was confronted with as she rounded the corner.

[68]         Given my finding Ms. Racy is mistaken as to the lighting conditions and what she observed in terms of distance to the moose when they rounded the corner, I am not satisfied that it is more likely than not that the moose were a significant distance from Ms. Leask’s vehicle when they rounded the corner.

[69]         Although the vehicle sustained about $3,500 in damage, the photograph of the truck shows that there was no damage to the windshields. The damage was confined to the right passenger side area of the hood, extending from the headlights along the right front passenger side panel and the outer hood line to the area over the right front passenger wheel. The damage depicted is consistent with Ms. Leask’s account that she slowed down significantly and had to be travelling no more than 30 km/h when she hit the moose calf, causing the limited damage to the hood and right front quarter panel area of the vehicle. It is also consistent with her evidence that she could not swerve to the right or left as moving right and to the shoulder would have put the moose calf more head on with the centre part of the vehicle, and moving left would have put her head on with the mother moose. As it was, she clipped the rear end of the mother moose and the glass on her driver’s side outside mirror was broken.

[70]         Ms. Leask was extensively cross-examined, including on her assumptions about deployment of the driver side air bag and rolling her vehicle if she slammed on her brakes at 90 km/h. She acknowledged these were assumptions that she just knew but did not have anything to confirm her beliefs. Despite the vigour of cross-examination and the somewhat combative nature of some of her responses, Ms. Leask remained unshaken on her evidence that the incident happened so quickly she simply reacted and did not have time to fully consider other approaches or manoeuvres. Ms. Leask expanded her estimate of time from sighting to impact from a couple of seconds to seven or eight seconds. Despite this, she remained steadfast that if she had swerved into the oncoming traffic lane she would have hit the mother moose head on and if she had swerved in the opposite direction to the shoulder she would have hit the moose calf head on and possibly have gone into the ditch.

[71]         The thrust of Ms. Leask’s evidence, both in direct and cross-examination, was that the events happened quickly and she had little time to react before her vehicle collided with the two moose. She saw the moose as she rounded the bend, they were illuminated by her high beam headlights and not concealed by the brush as they were on the shoulder of the road and continuing to move onto the road when she first saw them. She applied the brakes of her vehicle as she thought appropriate in the circumstances. She reacted immediately, kept her vehicle in its lane of travel and did not have any time to consider anything else apart from determining in that quick assessment that if she swerved in either direction from her lane of travel she would have hit one or other of the moose head on. In the end, Ms. Leask appears to have tried to “thread the needle” by going between the two moose, avoiding potentially more catastrophic results if she had swerved to either side.

[72]         While it is regrettable that Mr. Lyman did not mention the conversation with Ms. Racy the day after the accident at an earlier point in the litigation process, I do not find that he has made this conversation up. While demeanour evidence is not determinative of credibility, it can at times assist in the assessment of credibility. This is one of those times. I accept Mr. Lyman’s evidence that the conversation did occur and that Ms. Racy made the statement about Ms. Leask’s driving that Mr. Lyman attributed to her. I accept that at the time the statement was made, before litigation was anticipated or initiated, it did not seem particularly important to Mr. Lyman, he was simply concerned about the well being of Ms. Racy and his partner.

[73]         The meaning of the conversation is another matter. Given the surrounding circumstances and the continued friendship of the parties, I find that Ms. Racy’s comment about Ms. Leask’s driving was made in the context of expressing relief at how Ms. Leask handled the situation she was confronted with when the moose were sighted as she rounded the bend or corner in the highway.

[74]         Of significance to my conclusion that Ms. Leask’s account of the events is the more accurate one is the fact that Ms. Leask, immediately upon seeing the moose, made the comment of “moose, hang on.” If the moose were much farther up the highway as Ms. Racy appears to believe, there would have been no need for a warning to be given. Ms. Leask’s warning to Ms. Racy to hang on is more consistent with the preponderance of the surrounding circumstances that they were almost upon the moose when Ms. Leask first saw them as they rounded the corner or bend in the road.

IV.      Analysis

[75]         The first issue to be addressed is whether there was negligence on the part of Ms. Leask in relation to her collision with the two moose.

[76]         Counsel for the plaintiff argues that by driving too fast for the conditions of a remote location known to have moose in the area, coupled with failing to apply the brakes more quickly and failing to take any evasive action and by hitting both moose, a presumption of negligence arises that the defendant must discharge.

[77]         Counsel for the defendants and the third party argues that this is not a case of prima facie negligence but rather a case of a reasonable person confronted with an emergency situation and to which she responded as best she could in the circumstances. In the alternative, counsel argues that if this is a case of prima facie negligence then the defence of explanation as provided by Ms. Leask is such that it amounts to an explanation as to how the accident could have happened without negligence on her part.

[78]         In support of his argument that liability has been established, counsel for Ms. Racy relies primarily upon the following cases: Baker v. Russell, 2008 NLCA 51 [Baker]; Freidooni v. Freidooni, 2010 BCSC 553 [Freidooni]; McLean v. McLeod, [1942] M.J. No. 26 (Co. Ct.) [McLean]; and, Perry v. Banno (1993), 80 B.C.L.R. (2d) 351 (S.C.) [Perry]. In addition, he has cited reference to s. 144 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (careless driving), as well as extracts from the Canadian Encyclopedic Digest (Western), 3d ed. vol. 22 (Toronto, ON: Thomson Reuters Canada Ltd., 1973-current) at §332, §335 and §343.

[79]         In support of his argument that Ms. Leask is not liable for the accident when she collided with the moose on Hwy #16, counsel for the defendants and third party relies upon the following cases: Perry; Gauthier & Company Ltd. v. His Majesty The King, [1945] S.C.R. 143 [Gauthier]; McLean v. Weir and Goff (1980), 18 B.C.L.R. 325 (C.A.) [Weir]; Lynch v. Insurance Corporation of British Columbia (1996), 18 B.C.L.R. (3d) 214 (C.A.) [Lynch]; Babich v. Maxwell (1990), 49 B.C.L.R. (2d) 269 (C.A.) [Babich]; Fontaine v. British Columbia (Official Administrator) (1997), 46 B.C.L.R. (3d) 1 (S.C.C.), aff’g (1996), 22 B.C.L.R. (3d) 371 (C.A.) [Fontaine]; Pitts Enterprises Ltd. v. Farkes et al, 2004 BCSC 1493, aff’d 2005 BCCA 511 [Pitts Enterprises]; McIntosh v. ICBC and Mauer, 2003 BCSC 775, aff’d 2005 BCCA 64 [McIntosh]; Singleton v. Morris, 2010 BCCA 48 [Singleton]; and, Fajardo v. Horianopoulos, 2006 BCSC 147 [Fajardo]. In addition he has cited reference to extracts from Linden, Allen, Canadian Tort Law (4th edit.), (Toronto, ON: Butterworths, 1988) at pp. 115-120 and The Canadian Encyclopedic Digest (4th ed.) Western vol. 42 Title 109 Negligence (Carswell: February 2009) at pp. 132-135, §42 to §50.

[80]         A number of the authorities cited address accidents occurring as a result of collisions with wildlife, especially moose. As noted by Madam Justice Ross in Fajardo at para. 24 “...whether a driver is negligent when [s]he runs into wildlife on the road depends on the circumstances of the particular case.” In Pitt Enterprises (C.A.) at para. 5, Mr. Justice Donald noted that while negligence may be presumed by driving in the wrong lane, it is not necessarily presumed where a driver strikes wildlife in their ordinary lane of travel (see also Pitt Enterprises (BCSC) at para. 17).

[81]         Of course, to rebut any presumed inference of negligence the defendant need only advance an explanation of how the collision may reasonably have occurred without negligence on the part of the driver. If the explanation is equally consistent with negligence and no negligence, then the burden of establishing negligence remains with the plaintiff:  Pitt Enterprises (BCSC) at para. 12-13, (BCCA) at para. 5; Singleton at para. 38; Fajardo at para. 22 citing Gauthier, Lynch and Perry.

[82]         In this case, Ms. Leask was travelling in her own lane of travel when she encountered the two moose at the side of the road after rounding a corner or bend in the road. She did not end up in the oncoming traffic lane. She had little time to react. The two moose continued to move towards the travelled portion of the highway from the shoulder area. Ms. Leask adopted a course of action she felt presented the least amount of risk in the circumstances, by applying her brakes but not slamming them on and by not swerving in either direction and thereby hitting one or other of the moose head on. Ms. Leask’s explanation offered in this case, if an explanation is necessary, argues her counsel, is that the moose were moving onto the highway as she rounded the bend in the highway and there was not enough time to do anything other than what Ms. Leask did, especially considering that she was already travelling at a rate of speed below the posted speed limit.

[83]         In this case, the presumption of negligence does not arise and the onus remains on the plaintiff to establish negligence on the part of the defendant. The issue then is whether the plaintiff has proven on a balance of probabilities the defendant was negligent in operating her vehicle when it struck the two moose.

[84]         To establish negligence, plaintiff’s counsel argues the want of care demonstrated by Ms. Leask is established by her failing to brake more quickly and failing to react in a fashion of either slamming on the brakes, stopping, moving to the left or right or honking her horn, as well as travelling too quickly in an area where it is likely that wildlife will be encountered on the road. Counsel’s argument is, in part, predicated on acceptance of Ms. Racy’s belief that it was still light enough to see the moose half a mile away and that was how far away the moose were when first sighted. I have found, however, that it was dark when the collision occurred and the moose would not have been visible until captured by the beams of the headlights of the truck.  Ms. Racy’s estimate that the moose were half a mile away when first sighted has been rejected.

[85]         In support of his argument of negligence, counsel for the plaintiff relies upon Baker. In that case, the Newfoundland Court of Appeal overturned the trial judge’s dismissal of the plaintiff’s action and found the defendant driver negligent. The circumstances in Baker are distinguishable to the case at bar. In Baker the defendant was driving on a straight stretch of a divided highway at dusk when he encountered two moose, one standing on the shoulder of the highway and one in his lane of travel. The defendant swerved to the left, braked and almost immediately hit a third moose which the defendant had not seen and that had come from the centre median. His passenger, the plaintiff, was seriously injured when the vehicle hit the third moose. The area the defendant was driving in was posted with reflective moose warning signs and it was well known to have moose in the area, particularly in the fall, which is when the accident occurred. However, the driver did not recall seeing the sign. Significant to the Baker case was the expert evidence on lighting conditions, lines of sight and distance to travel to stop at various rates of speed. The defendant was found to have been travelling at 90 km/h at the time of impact with the moose and had testified he was travelling at 100 km/h when he first saw the moose.

[86]         The Court of Appeal in Baker found the moose warning sign to be a pointed warning of an enhanced risk that a serious hazard may materialize. In allowing the appeal, the Court found the trial judge committed palpable and overriding error in how the issue of speed and the presence of moose warning signs were addressed. The failure of the defendant to reduce his speed appreciably from the posted highway speed upon entering the moose warning area, in circumstances where the prevailing conditions at the time of the accident included the highway being wet, diminishing light and the presence of the moose warning sign, were found to create an unreasonable risk of harm to his passenger. The Court of Appeal found the respondent was negligent in his manner of driving when he encountered the moose.

[87]         In the case at bar, Ms. Leask was driving below the posted speed limit, there is a complete absence of expert evidence as to lighting conditions, stopping times and distances and the encounter with the moose was not in an area posted with moose warning signs and not in a “moose alley” area.

[88]         The plaintiff’s counsel also relies upon Freidooni to support his argument of negligence on the part of the defendant. In Freidooni, the defendant husband was found negligent and liable for the injuries his wife sustained when he struck a deer at 7:30 a.m. on a July morning while driving in the fast lane of a divided highway where the posted speed was 110 km/h. The defendant was driving at a 130 km/h with the vehicle’s cruise control activated. The defendant, who was listening to music and drinking coffee, never saw the deer, only a shadow coming from the right of the vehicle, and thus did not apply the brakes or take any evasive action before hitting the deer. The accident occurred in an area known to have wildlife and the defendant was aware of this fact. The trial judge in Freidooni found that the reason the defendant failed to see the deer was that he was not paying attention and in that respect he was negligent given the circumstances and conditions of the highway and the defendant’s knowledge that wildlife frequented the area.

[89]         Freidooni is distinguishable for the fact that the defendant was driving in excess of the speed limit in an area known to have wildlife and he simply failed to pay attention to the surrounding circumstances, instead drinking coffee and listening to music and letting the vehicle drive on cruise control. Ms. Leask, on the other hand, was driving at a reduced speed limit, paying attention to the highway conditions and upon seeing the moose responded by applying the brakes and reducing her speed as best she could in the circumstances.

[90]         In McLean, the defendant was found negligent for failing to reduce his speed when he first saw what he thought was a buggy on the road and pulled to the left to pass it without reducing his speed. When the defendant got closer to the object, still travelling at his same rate of speed, he realized it was a herd of cattle. He slammed on his brakes but by then it was too late and he hit four or five animals. The cattle driver and his assistant escaped injury only because they jumped off the highway to avoid the defendant’s vehicle. McLean too is distinguishable as the driver failed to respond appropriately when he first observed the unknown object on the road. In finding the driver negligent, Lindal C.C.J. stated as follows:

[17]      There is a duty on the driver of a motor vehicle, who is driving at night, to take special precautions the moment he sees an object in front of him. In this case the defendant should have released the accelerator at once, placed his foot on the brake and reduced the speed of the car so as to be ready to meet any emergency. This he did not do, but merely-assumed that what was in front of him was a buggy and that he could pass it without slowing down. It is true that a few moments afterwards he changed his mind and slammed on the brakes, but then it was too late. Not only has the defendant failed to discharge the onus upon him, the evidence establishes negligence in him.

[91]         In the case at bar, however, Ms. Leask responded immediately upon seeing the moose and took precautions. She warned Ms. Racy and she slowed down by applying her brakes, responding to the circumstances that confronted her as best she could.

[92]         The case of Perry which the plaintiff’s counsel relies upon is altogether different from the case at bar. In Perry, the accident occurred on the Oak Street Bridge in Vancouver. The defendant was driving his vehicle northbound in the centre lane when it crossed into the oncoming southbound lane of traffic. The defendant’s vehicle struck a truck travelling in the centre southbound lane of traffic. The driver of the southbound truck, upon seeing the defendant’s vehicle drift into his lane of travel, took evasive action trying to pull into the curb lane of travel and struck another vehicle. The defendant argued he lost consciousness at the moment his vehicle started to drift into the oncoming traffic lane. Extensive medical investigations failed to identify any reason for a loss of consciousness. Mr. Justice Brenner (as he then was) found there was a total absence of any objective evidence to support a loss of consciousness by the defendant. The evidence was found to be equally consistent with the defendant suffering a momentary lapse in attention caused by his hearty laughter to his daughter’s joke. The defence of loss of consciousness failed and the defendant was unable to prove that the accident could not have been prevented by reasonable care on his part.

[93]         Two cases more similarly situated to the circumstances of the case at bar can be found in the decisions in Pitt Enterprises and Fajardo.

[94]         In Pitt Enterprises, the defendant, who was driving a tractor trailer at night on a two lane highway, struck a moose standing in his lane of travel. The collision with the moose rendered the steering mechanism of the defendant’s vehicle inoperative and he crossed the centre line from his northbound lane of travel into the southbound lane. The defendant’s vehicle collided head-on with the plaintiff’s southbound vehicle. The collision occurred at night and the defendant was unable to take any evasive action when he first saw the moose 20 yards away from his vehicle. The defendant was driving approximately 90 to 95 km/h in a 90 km/h zone. The trial judge accepted the defence of explanation that the defendant ended up on the wrong side of the road because his steering mechanism was rendered inoperative after striking the moose. Accordingly the onus remained on the plaintiff to establish that the defendant was negligent in operating his vehicle when it struck the moose.

[95]         In Pitt Enterprises, Powers J. found the defendant driver did not lose control of his vehicle due to excessive speed. Rather, he was unable to see the moose within enough time to stop his vehicle. Moreover, the area was not a “moose alley” or “moose crossing area.” As the trial judge found at para. 32 “[t]he defendant, in the agony of the collision, made the decision that it was less likely to result in injury if he simply hit the moose head-on, rather than taking evasive action. This is not a case where the driver has lost control of his vehicle due to excessive speed.” An appeal to the Court of Appeal was dismissed.

[96]         In Fajardo, the defendant was driving at night, northbound on the highway near the Terrace-Kitimat airport. His vehicle struck a moose. The force of the collision caused the defendant’s vehicle to stop. The body of the moose was thrown into the southbound lane of travel. The plaintiff, also driving northbound, came upon the scene and took action to avoid hitting the defendant. He swerved into the southbound lane and collided with the moose.

[97]         The area of the accident in Fajardo, although near a moose warning area was found not to be within the “moose warning zone.” The defendant, who was found to be travelling at 90 km/h, 10 km/h below the posted speed, had slowed his speed for the hill and the patchy fog that had developed that night. As soon as the defendant saw the moose he applied his brakes, but not sufficiently to avoid colliding with the moose. The trial judge accepted the defendant’s explanation of the moose darting out onto the highway and, despite his efforts to avoid a collision, it could not be avoided, finding it to be equally consistent with negligence and no negligence. The defendant in Fajardo was found not to be negligent either in his rate of speed for the conditions or failing to see the moose earlier than he did.

[98]         In Fajardo at para. 32, Ross J. stated:

32        In Pitt Enterprises, Mr. Justice Powers cited with approval Maksymetz v. Plamondon (1988), 53 Man.R. (2d) 304 (C.A.) [Maksymetz] and Tabaka v. Greyhound Lines of Canada Ltd. (1999), 252 A.R. 373 (Q.B.) [Tabaka]. In Maksymetz, Monnin C.J.M., speaking for the majority, stated the following at paras. 8-9:

I am of the view that requiring a driver to reduce his speed much below the posted speed limit because of the threat of the sudden appearance on the highway of a large animal, such as a moose or a deer, directly in front of a moving vehicle travelling with dimmed headlights is too high a standard to set for driving on Manitoba roads, especially those in remote areas of the province. That is not a standard which should be set by this court.

What happened was so sudden that defendant could do nothing to prevent the moose from hitting the hood of his tractor-trailer. The action of the moose was the sole cause of the accident and could be termed an act of God.

Tabaka was to the same effect.

[99]         And in Pitt Enterprises, Powers J. referred to the principles from Tabaka stating at para. 24:

Tabaka v. Greyhound Lines of Canada Ltd., [1999] A.J. No. 1343. In this case, a Greyhound bus collided with a mother and calf moose on Highway 16 just past Mount Robson Park gates. It was approximately 2:20 a.m. This was a summary trial. At [paragraph] 9, the trial judge outlined what he referred to as principles as follows:

Based on the jurisprudence, I am of the view that the following are the applicable principles with respect to claims of negligence due to motor vehicle accidents involving wildlife:

* Requiring a driver to slow down to well below the posted speed limit because of the possibility that wildlife may appear on the highway is too high a standard to set for drivers: Maksymetz

* Some of the factors that are relevant in considering whether the conduct of a driver is negligent include: road conditions, weather, condition of the vehicle, experience, reaction to the risk presented, any evasive action taken, familiarity with the road, the intensity of the vehicle's headlights, other traffic on the roadway, condition of the tires, speed: Favel, [1988] A.J. No. 144; Birk, [1995] B.C.J. No. 2158 and Curbello;

* There is no requirement that a driver must drive at a speed that would enable him to bring his vehicle to a standstill without collision after the driver, keeping a reasonable lookout, sees a stationary object in front of them: Cooper (1967), 66 D.L.R. (2d) 338, citing Masten J.A. in McCannell v. McLean, [1937] 2 D.L.R. 639 (Ont. C.A.), aff'd, [1937] 2 D.L.R. 639 (S.C.C.).

[100]     In this case, Ms. Leask acted immediately and appropriately upon first encountering the moose. Upon rounding the bend or corner in the road and seeing the moose, she gave a warning to Ms. Racy and at the same time applied the brakes to slow the vehicle as best she could without risking swerving in either direction. The two moose were not standing in the lane of travel but were moving toward it from the shoulder on the right hand side of the highway. The road conditions were dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated. Rather, they were caught in the range of the headlights. There is no evidence as to what the range of the headlights on high beam for this model of vehicle is in this case. Ms. Leask was driving at least 10 km/h below the posted speed limit and was in all likelihood travelling at a speed of between 85 and 90 km/h. Ms. Leask reduced her speed to take into account the driving conditions including the fact that it was dark and the possibility of encountering wildlife.

[101]     Significantly, and as in Pitt Enterprises and Fajardo, there is no evidence of what speed Ms. Leask would have to have been travelling at to have been able to stop her truck once the two moose became visible to her. Nor is there any evidence as to how far the defendant’s lights would have illuminated the highway in this case, something available in the case of Pitt Enterprises.

[102]     In addition, the collision in this case did not occur in an area that could be described as a “moose alley” where it is more probable than not that moose will be found. While an accident may have occurred a year before in the same general area where a driver struck a moose, there is no other evidence to suggest this is an area where it is more probable than not that moose will be found. Ms. Leask was aware there might be wildlife in the area and had adjusted her speed accordingly and was wary of the possibility.

[103]     As soon as Ms. Leask saw the moose she applied her brakes, but not with enough force to completely avoid colliding with the moose. I accept her evidence that the moose were fairly close to the vehicle, within the beam of the vehicle headlights, when she first encountered them and that they continued to move from the shoulder area to the vehicle’s lane of travel. Despite her efforts to avoid a collision by applying the brakes and maintaining a straight path, instead of swerving in either direction, the collision with the moose calf could not be avoided.

V.       Conclusion

[104]     Considering all the circumstances in this case, I conclude that the collision with the moose was not occasioned by any negligence or want of care on the part of Ms. Leask. I find that Ms. Leask was not driving at an excessive speed given the conditions. I also find that she was not negligent in failing to apply the vehicle brakes more forcefully or in failing to take any other evasive action such as pulling or swerving to the right or the left of her lane of travel. To have done so no doubt would have resulted in much graver consequences: a head on collision with either the mother moose or the calf. The plaintiff has failed to establish on a balance of probabilities the defendant was negligent in her response to seeing the moose on the highway. Accordingly, the plaintiff’s case fails and the action must be dismissed.

[105]     The defendants and third party are entitled to their costs at Scale B, unless the parties seek to make further submissions on the issue, in which case notice must be given to the Court within 30 days of the filing of this judgment.

“Ker J.”