McPhee v. British Columbia (Minister of Transportation and Highways) et al., 2008 BCCA 254

• Judge: Finch, C.J.B.C., Levine and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 17, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 254;(2008), 258 B.C.A.C. 13 (CA)

McPhee v. B.C. (2008), 258 B.C.A.C. 13 (CA);

    434 W.A.C. 13

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JN.046

David George McPhee (appellant/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Transportation and Highways and Mainroad Contracting Ltd. (respondents/defendants)

(CA035071; 2008 BCCA 254)

Indexed As: McPhee v. British Columbia (Minister of Transportation and Highways) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Levine and Smith, JJ.A.

June 17, 2008.

Summary:

The plaintiff sued the Province of British Columbia and Mainroad Contracting Ltd. (Mainroad) for personal injuries suffered in a single vehicle motor vehicle accident on January 31, 1998. The plaintiff claimed that his vehicle slipped on black ice and alleged that Mainroad had been negligent in failing to perform its maintenance duties on the highway to the required standard.

The British Columbia Supreme Court dismissed the action. The plaintiff appealed, arguing that the court misapprehended or misunderstood some of the evidence, failed to give adequate reasons for its conclusion, erred by deciding the case on the basis that the plaintiff had not met the burden of proof, and erred by failing to weigh the relative probability of two explanations for the accident.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See Torts - Topic 65 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - The plaintiff sued, saying that, because of negligence in the maintenance of the highway he was travelling on, his car slipped on black ice and went off the road, causing him personal injury - The trial judge dismissed the action, holding that the plaintiff had not met the burden on him to prove on the balance of probabilities that there was black ice on the highway - The British Columbia Court of Appeal upheld the decision - The trial judge's findings of fact were well documented by the evidence, including expert evidence that skid marks on the highway at the accident scene indicated absence of black ice, and testimony that another motorist was able to brake his vehicle very close to where the plaintiff left the road (see paragraphs 16 to 26) - The trial judge's reasons were adequate even though he did not articulate every step in his reasoning process (see paragraphs 27 to 35) - Finally, the trial judge made no error in failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident - He was under no obligation to compare the relative probabilities of the theories advanced - See paragraphs 36 to 46.

Cases Noticed:

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, consd. [para. 27].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, consd. [para. 28].

Stephens v. Cannon, [2005] EWCA Civ. 222, dist. [para. 36].

Eyres v. Atkinsons Kitchens and Bedrooms Ltd., [2007] EWCA Civ. 365, not folld. [para. 40].

Datec Electronics Holdings Ltd. et al. v. United Parcels Service Ltd., [2007] N.R. Uned. 124; [2007] UKHL 23, refd to. [para. 40].

Benoit v. Farrell Estate (2004), 200 B.C.A.C. 251; 327 W.A.C. 251; 27 B.C.L.R.(4th) 226; 2004 BCCA 348, consd. [para. 44].

Counsel:

R.D. Gibbens and C.M. Weiler, for the appellant;

A.A. Hobkirk and K.L. Weslowski, for Mainroad Contracting Ltd.

This appeal was heard at Vancouver, B.C., on February 26 and 27, 2008, by Finch, C.J.B.C., Levine and Smith, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on June 17, 2008, by Levine, J.A.