All signs this month indicated I needed to write about deer. First, there’s a funny story out of North Dakota where a woman called into a radio station and wanted to know why the government was posting signs encouraging deer to cross the interstate. Seriously? I’m really hoping this was a joke, but if you haven’t seen this, you have to check out the article in the Huffington Post (Donna, Radio Caller, Wants Deer Crossing Signs Moved So Deer Won’t Cross Highways).
Second, I keep encountering near-misses with deer on the road up by my place and third, and perhaps most obvious, 'tis the season to sing about deer. Of course the most notable Christmas carol is “Rudolph the Red Nosed Reindeer” but for this article, a more appropriately titled carol is “Grandma Got Run Over By a Reindeer”.
If you have been in an accident with wildlife, you know it’s not a pleasant experience. I can remember being a child in Saskatchewan driving back from the lake late at night and my mom crashing into a deer that was in the middle of the road. I can still hear the loud thud and feel the terror of this large animal crashing into our car. In my case, we were lucky, no one was injured (beyond the deer), my mom kept her composure and the vehicle on the road despite the fact that I’m sure it scared her to death.
Of course wildlife on the roads can cause more than vehicle damage and a minor childhood rattling. According to statistics collected by ICBC, on average, 4 people are killed and 384 people are injured every year as a result of collisions involving wildlife and according to Wildlife Collision Prevention Program website there are between 4 and 8 large animal vehicle collisions every hour in Canada.
So what happens if you are injured in a car accident that was caused by wildlife? Unfortunately for us, deer (and other wildlife) don’t carry insurance so if the animal is the sole legal cause of the accident your only recourse will likely be the limited accident benefits available through ICBC. In other words, you will have no claim for pain and suffering or other damages that are only available where a human being or other legal entity is responsible. But, if in addition to the wildlife, the driver or another entity is partly to blame for the accident or the extent of your injuries, you may be able to make a claim.
In the case of Freidooni v. Freidooni 2010 BCSC 553, the Court held the driver liable for injuries to his passenger (his wife) when she was injured as a result of a collision with a deer. In that case, it was daylight, the defendant had his vehicle on cruise control in excess of the speed limit and the road conditions were perfect. In addition, the accident occurred in an area where there was an expectation of wildlife. As a result, the Court held that the defendant failed to keep a proper lookout thereby making him liable to his wife for the injuries she suffered. The driver in Bassi v. Bassi 2010 BCSC 1869 was also held liable for his passengers’ injuries when he swerved to avoid a deer resulting in the vehicle leaving the road, rolling and landing in a ditch. In that case, the driver had not slept in 24 hours, was aware there was wildlife in the area and it was light out at the time.
In the decision of Power v. White 2012 BCCA 197, the BC Court of Appeal upheld the trial judge’s decision holding the defendant liable for rear-ending the Plaintiff’s vehicle when it made a sudden lane change from the fast lane to the slow lane, and abrupt braking in front of the defendant’s vehicle as a result of the sudden appearance of a deer on the highway. In essence, 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.
In the case of Pitt Enterprises Ltd. v. Farkes 2005 BCCA 511, the BC Court of Appeal upheld the trial judge’s finding that the defendant could not have seen the moose in time to avoid the accident. As a result, the plaintiff could not recover damages for his injuries. A similar conclusion was reached in Racy v. Leask 2011 BCSC 846.
In summary, for cases involving wildlife, there are several possible outcomes. It is important to understand that each case is very fact specific and therefore no conclusions should be drawn without a careful review of the facts. While you can’t make a claim against the deer (I can see the Notice of Civil Claim now – S. Claus v. Rudolph and Others), you may have a claim against the driver of a vehicle involved or in unique cases, possibly the branch of government responsible for the roadway where the accident occurred or even the manufacturer or repair company for your vehicle if there was a defect in how the vehicle reacted in the situation (i.e. brake failure, air bag failure, etc.). As a result, if you are injured as a result of a collision with wildlife it is important to get legal advice about your claim.
For more information on prevention of wildlife collisions see: www.wildlifecollisions.ca.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.
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