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Moose Mayhem: Would ICBC Cover You?

stephen-bromley-s-car-after-hitting-a-moose-in-newfoundland.jpg

Photo from: www.cbc.ca/news/canada/newfoundland-labrador/man-from-conche-n-l-hits-moose-but-can-t-remember-it-1.3126446 

A few weeks ago a driver from Conche, Newfoundland, hit a moose but kept driving in spite of a head injury and devastating damage to his vehicle. A passing driver noticed that the roof on the car was nearly ripped off and that the driver was covered in so much blood and moose manure that he appeared to be headless. The passing driver then turned around and convinced the injured driver (who had no recollection of hitting a moose) that he needed to go the hospital. The driver suffered a bad concussion from the impact and to this day has no recollection of hitting the moose. See more about this story here

According to the BC Wildlife Collision Prevention Program, every year in BC 4 people are killed and 380 people are injured in collisions with animals. So, if you were to hit an animal while driving in BC, would your insurance cover you for your damages? The answer to that question depends on the facts, the type of damages you sustain and whether or not someone was at fault for the accident. And when I refer to fault, unfortunately the moose doesn't count.

Damages to your vehicle: If you have comprehensive insurance, the repairs to your vehicle should be covered no matter who (or who is not) at fault.

Personal injuries - The accident is your fault or no one's fault: If you or others suffer personal injuries from the impact and the fault was either:

- Yours;

- The animal's; or

- Nobody's fault

Recovery then for personal injuries would likely be limited to Part 7 damages. Part 7 benefits (otherwise known as a "no fault" benefits) are generally available to those in BC that meet the definition of "an insured" under Part 7 of the Insurance (Vehicle) Regulation (for example, an owner of a vehicle insured in BC, BC residents with a BC driver's license, passengers of a BC licensed vehicle and cyclists injured by a BC plated vehicle). Part 7 benefits however are limited and typically will not fully compensate someone if they sustain serious injuries.

In Pitt Enterprises Ltd. v. Farkes, 2005 BCCA 511 an injured plaintiff sued the defendant for damages for injuries the plaintiff sustained after the defendant collided with a moose resulting in the defendant's vehicle moving into the oncoming lane and hitting the plaintiff's vehicle. The court found that the defendant was not travelling too fast in the circumstances, could not have seen the moose in time to avoid the accident and that the accident would not necessarily have been avoided even if the defendant had been travelling at a slower speed. The defendant was therefore not negligent and the plaintiff would have been limited to Part 7 benefits if she/he met the definition of an insured.

Personal injuries - Accident all or partly someone else's fault: If the accident can be blamed all or partly on someone else. For example:

- the driver of a car you are a passenger in is speeding or not paying attention and hits an animal;

- the driver of another car is speeding or not paying attention, hits an animal and then hits you (either in your car, as a pedestrian or a cyclist); or

- the branch of government responsible for the roadway has not taken proper precautions to warn drivers of wildlife or prevent wildlife from entering the roadway

In the above circumstances you could bring a tort claim against that driver or branch of government.

In the decision of Power v. White 2012 BCCA 197, the BC Court of Appeal upheld the trial judge's decision that the defendant was negligent for rear-ending the plaintiff's vehicle after the defendant suddenly changed lanes and abruptly braked when a deer came onto the highway. The court found that the defendant saw the deer "land" in the fast lane before the plaintiff changed lanes and he failed to apply his brakes in time to avoid the collision.

Keep in mind that suing the government for failure to take precautions is a difficult prospect. Recently, the Newfoundland Supreme Court dismissed a class action alleging the province was liable for injuries and loss of life for moose-vehicle collisions that had occurred during a certain time period. The court found that the province of Newfoundland did not owe a duty of care to owners and occupiers of motor vehicles to mitigate the risk of moose-vehicle collisions.

So, what's to become of the poor Newfie from Conche that hit the moose? Unfortunately, because he was driving alone it will likely be difficult for him to find anyone to blame for the injuries he sustained and he will be limited to whatever the equivalent may be of Part 7 benefits under Newfoundland's scheme of insurance.

The moral of this story is to be extra attentive when driving in areas where wildlife can be expected (for more tips go to www.wildlifecollisions.ca/hints.htm). However, if you unfortunately do have an accident, contact us for legal advice to explore your options.

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