In this road maintenance appeal (Billabong Road & Bridge Maintenance Inc. v. Brook, 2011 BCSC 297) the Provincial Court of BC had ordered the road maintenance company to pay the claimant for damages arising out of a motor vehicle accident that occurred on Highway 16E between Telkwa and Smithers. The Provincial Court concluded that the road maintenance company was 50% liable for the accident by failing to sand the road where the accident took place in a timely and effective manner. The learned Provincial Court judge also concluded that the claimant was 50% liable for failing to take reasonable steps to avoid the accident.
As the Supreme Court of BC pointed out, a finding of negligence is a question of mixed fact and law because it involves the application of a legal standard to particular facts in a case. Where a wrong finding of negligence rests on an incorrect statement of the legal standard, it is an error of law and the standard of review is “correctness”. Whereas the standard of review remains the more restricted one of “palpable and overriding error” when there is a wrong factual inference drawn by the trial judge.
The road maintenance company acknowledged that it owed the claimant a duty of care however it argued that the applicable standard of care is strictly limited to the contractual obligations described in the maintenance contract with the Provincial Government. Interestingly the Court commented
“Where the Province delegates responsibility for road maintenance to a private contractor, the contractor inherits the same Crown immunity for policy decisions, but continues to be liable under private law for negligence arising out of operational decisions. For example, where the contract with the Provincial Government specifies that particular road work must be completed within two hours of certain events, compliance with this standard is sufficient to clothe the contractor with immunity for any claim in negligence by a pedestrian or motorist. This is because the time frame for the completion of the work is a matter of policy set by the Provincial Government after balancing the costs associated with the work with the need to ensure the safety of the travelling public. “(emphasis added)
The Supreme Court of BC found that the road maintenance company did not meet the requisite private law standard of care in respect of the completion of the sanding. Given the amount of traffic to be expected on Highway 16E, the slippery road conditions , and the time of day, the learned Provincial Court judge rightly concluded that the response time fell below the standards expected of the contractor. Posted By Mr. Renn A. Holness