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Highway Accident Negligence and Agony of Collision

If you have been involved in a highway car or truck accident and need a Whistler Squamish ICBC Personal Injury Lawyer, the MacLean Law Group is available to help. We always provide a free initial consultation and we work on a contingent basis, meaning that we don’t get paid unless you get paid.

You can reach us toll free from anywhere in the province at 1-877-602-9900 or use our convenient online form by clicking here. We also have offices in Vancouver, Surrey, Kelowna and Fort St. John.

As Whistler Squamish ICBC Personal Injury Lawyers, we know that driving on mountain highways can frequently present additional hazards that city drivers do not experience. For example, a mechanical failure while travelling at speeds close to or in excess of 100 km/hr on a windy mountain highway may have significantly more devastating effect than if the same mechanical failure were to occur while cruising through city streets at 40-50 km/hr. Regardless, whenever a driver is accused of negligence the Courts must decide not only if the driver acted with the reasonable care of a safe driver in general, but also if the drivers’ conduct was appropriate given the speed at which they were travelling, weather conditions, the conditions of the road itself, and whether or not the driver was forced to make split second decisions in response to an inevitable accident or other emergency situation. Therefore, whenever a driver is accused of negligence, they may be able to defend their actions under the doctrine of the “agony of collision.” This doctrine applies when a driver is forced to make decisions in an unexpected emergency situation – including sudden mechanical failures. Under this doctrine the Court must evaluate the actions of the driver at a much lower standard than would be required if the emergency did not exist. These two concepts – additional care required when driving on icy mountain roads plus “agony of collision” – were recently explored in the recent BC Court of Appeals decision of Chow-Hidasi v. Hidasi, 2013 BCCA 73. In this case a passenger sued the driver for negligence, claiming that the drivers actions were not reasonable under the circumstances. The driver asserted the defense of both inevitable accident and “agony of collision”, claiming that he did the best he could under the emergency circumstances. However, there was also some question about whether the alleged “emergency,” (a sudden mechanical failure resulting in total loss of steering and braking control), actually existed in the first place. The facts of the case are outlined as follows:

[1] On the morning of January 26, 2007 the defendant Mr. Hidasi was driving with his wife along the ‘Coquihalla connector’ (Highway 97C) from Peachland to Vancouver. His vehicle was a four-wheel drive 1992 Jeep Cherokee with over 214,000 km on it. The weather was clear, the temperature was between 1° and 2° C and there were “intermittent snowy patches” beside the road and on the road. As they were proceeding in the right-hand lane at 100 km/h up a “gentle” slope east of the turnoff to Brenda Mines, Mr. Hidasi heard a “clunking” noise. He suddenly felt that he could not steer or brake. In his words, “I realized that, no matter how hard I tried, my steering wheel would not turn and I could not move my brake pedal.”

[2] Afraid of losing complete control, Mr. Hidasi applied his emergency brake. The Jeep veered left towards the centre of the highway. He then disengaged the brake but the vehicle struck the median and did a 180-degree turn, travelled back across the highway and came to a stop as it struck the barrier on the right side of the road.

[3] The plaintiff Ms. Chow-Hidasi, [the defendant’s wife], evidently suffered personal injuries. She sued on the grounds that the defendant had been negligent inter alia in driving at an excessive speed (“overdriving”) having regard to the condition of the road, operating a motor vehicle with defective brakes or in failing to apply the brakes in time to avoid the collision, failing to keep the vehicle under proper control and failing to turn or redirect the direction of the vehicle so as to avoid the collision. Mr. Hidasi denied her allegations in his statement of defence.

Ms. Chow-Hidasi alleged that applying the emergency brake was entirely the wrong choice in the circumstances. She argued that if Mr. Hidasi has simply continued to steer the vehicle without applying the hand brake the accident would have been avoided in its entirety. Both sides agreed that applying the emergency hand brake caused the rear wheels of the vehicle to lock up and undoubtedly lead to the skidding collision with the highway barrier. However, Mr. Hidasi claimed that applying the emergency brake seemed like the right choice given his total loss of both steering and braking control. Whether or not the vehicle had “actually” lost 100% of its steering and braking ability was never fully determined. Unfortunately, the vehicle was inadvertently destroyed by ICBC following the accident, but before a full inspection of it had been completed. As a result, the Court was forced to rely upon Mr. Hidasi’s own testimony and various expert opinions. In the end the Court of Appeals held, (in a 2-1 decision), that the trial judge was correct in applying the doctrine of “Agony of Collision,” and that Mr. Hidasi’s choice to apply the emergency brake was not negligent, even though though this action actually “caused” the collision with the highway barrier, and even though this action would not have been reasonable under “ordinary” circumstances. In this regard the Court noted as follows:

[16] Having so found, it was necessary for the Court to determine whether Mr. Hidasi’s response to the failure of his steering wheel and brakes had met the standard of reasonableness. Dr. Toor opined that where a loss of power occurs, a driver will still be able to steer and brake, although he or she must use considerable force to do so. As well, he opined that the loss of power steering and power brakes could have no effect on the path of travel of the vehicle. Thus the plaintiff contended that if Mr. Hidasi had simply tried harder, the vehicle would have responded to his steering and braking and would have continued to follow the gentle curve it was in and come to rest without incident. (Paras. 43-4.) Further, since Dr. Toor noted that the application of the parking brake would have “locked” the rear wheels, which would then “skid out in a straight line, causing the vehicle to locally spin and leading to loss of control”, the plaintiff submitted that Mr. Hidasi had not used reasonable care in engaging the emergency brake and should have slowed the vehicle down by using the automatic transmission. (The ability to “use the transmission as a stopping device to decelerate”, whether with two or four wheels, was a special feature that Mr. Hidasi had been eager to secure when he bought the Jeep Cherokee.)

[17] The trial judge was not persuaded, however, that Mr. Hidasi had failed to exercise reasonable care. In his words:

I am not satisfied the defendant’s reaction to the circumstances he unexpectedly faced was unreasonable. First, there is no suggestion that Mr. Hidasi was in some fashion shocked into inaction and delayed responding to what he reasonably perceived as an emergency. To the contrary, all of the evidence suggests that he responded immediately. Second, it may well have been that if Mr. Hidasi was a stronger individual or simply redoubled his efforts at attempting to manually steer and manually brake the vehicle he would have been successful. I do not accept that he knew that, or should have known that. Rather, I find that he tried his level best to steer and brake. He perceived that both of these options were ineffective and he needed to adopt an alternative course and do that quickly. From his perspective he had two options: either do nothing or engage the emergency brake. Choosing the latter was not an unreasonable course of action. When it gave rise to unexpected consequences and in effect created a further danger, Mr. Hidasi responded to that. He immediately disengaged the emergency brake. By that point, however, he was unable to alter the path of travel of the vehicle and the collision occurred. It may be that the vehicle would have tracked around the curve it was on without difficulty if Mr. Hidasi had done nothing. It may also be that had he geared down using the automatic transmission he would have been able to stop the vehicle without incident. It may be that adopting either or both of those courses of action would have been better than adopting the course that Mr. Hidasi did. This issue is not whether he took the best course of action, but whether he responded reasonably, bearing in mind the tolerance the law affords to what might be described as errors in judgment committed by a driver faced with an emergency situation. [At para. 45; emphasis added.]

In the result, the learned judge was not satisfied that the plaintiff had proven Mr. Hidasi was negligent, and the action was dismissed.

Ultimately, the BC Court of Appeals upheld the lower Court’s decision, in a split 2-1 decision. It is worth noting that the dissenting opinion did not support the lower Court’s decision. The dissent held that the actual emergency situation had not been adequately proven in the first place. The dissent noted as follows:

[53] … in this case, Mr. Hidasi was not able to show what caused the brakes and steering to fail, nor even expert or physical evidence that they did fail. Curiously the only expert evidence on this point contradicted Mr. Hidasi’s account of what he experienced. Mr. Toor, the expert engineer, opined that:

The reason for initial stiffness in steering and/or brakes cannot be identified with any reasonable degree of certainty. One reasonable possibility is failure of the power assist mechanism.

If the power assist failed, the vehicle would have been “harder” to steer, but still steerable. The brakes could also have been applied; however, it would likely take more effort for corresponding deceleration to compensate for loss of power assist mechanism.

[54] To the same effect was the mechanic’s evidence, that increased effort would be required, but that the vehicle would still be operable.

[55] As noted above, Mr. Hidasi testified at his examination for discovery that the brake was like “pressing on dead metal which you cannot move”, “solid”, and that “it did not have any movement whatsoever”.

[56] In my view, more was required than a simple assertion of a mechanical failure to establish an inevitable accident defence sufficient to refute the inference of negligence. The only explanation that was posited in this case by the experts to explain the mechanical failure – that there was a power assist failure – did not align with Mr. Hidasi’s own description of the events. In my view, the trial judge erred in failing to consider if there was any evidence that supported the defendant’s assertion of a sudden catastrophic failure of steering and brakes or any cause that could reasonably account for the failure. On the contrary, the judge appears to have concluded that Mr. Hidasi’s evidence was sufficient to rebut the inference of negligence. The only time the trial judge addressed the conflict between Mr. Hidasi’s account of events and the expert evidence was in his consideration of the third part of the Rintoul test ‒ whether Mr. Hidasi had acted reasonably to avoid an accident.

[57] The issue these reasons address is whether we should decline to interfere with the trial judge’s decision on the basis that, as the trier of fact, it was for him to interpret and accord weight to the evidence put forward by the parties. For this Court to interfere with a fact or inference of fact, the error, must of course be a “palpable and overriding” one.

[58] In my view, the decision in this case turned on whether Mr. Hidasi led sufficient evidence to make out the defence of inevitable accident, in particular, the first branch of the defence – whether there was a mechanical failure. Here, the trial judge correctly identified the legal test from Rintoul, but did not turn his mind to the question of whether the evidence sufficiently satisfied the first branch of that test.

[60] … The trial judge did not consider whether Mr. Hidasi’s evidence was sufficient to satisfy the first part of the test, and thus sufficient to meet the legal threshold necessary to negate the inference of negligence. It could not be said that the defence of inevitable accident was made out in this case. I do not consider that the judge is entitled to deference on this point because his findings are questions of applying a legal standard to the facts of the case.

As our clients from Whistler and Squamish know, accidents that occur on mountain highways can present special challenges and considerations for personal injury cases. If you have been injured in an accident in Whistler, Squamish, or anywhere in BC, we strongly recommend that you meet with one of our dedicated personal injury lawyers to discuss your options and your rights.

Our Whistler, Squamish, Kelowna, Fort St John, Surrey, and Vancouver car and truck accident personal injury lawyers are always available for a free initial consultation by calling 1-877-602-9900 or you can complete our online form. We look forward to helping you receive the maximum settlement you deserve.

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