Improper construction of a section of grassy median on Highway 19, near Qualicum Beach, is the cause of injuries from a vehicle rollover in the area that occurred on March 27, 2005.
On Oct. 27, 2016, at the Supreme Court of BC in Nanaimo, Justice Kenneth Affleck found that the Ministry of Transportation failed to take reasonable care in the design and construction of the highway and they are partially liable for the accident.
“The risk of rollover accident could have been avoided, or at least reduced, if the slopes of the median were shallower, as good engineering practice dictated…” said Affleck in the Reasons for Judgement document.
Christine Bayfield, the driver of the vehicle, was also found partly liable. Affleck concluded that hydroplaning was the reason that Bayfield left the road and that if she had been driving slower in the wet conditions the risk of rollover would have been reduced. However, because the rollover, not the hydroplaning, was the cause of the injuries, the ministry was found two-thirds liable.
Affleck also reviewed evidence alleging that the surface of the highway was not constructed according to the design drawings, which could have increased the risk of hydroplaning on that section of highway. However, he found that the highway was built to meet the design specifications of the time and that, as a matter of policy, the government does not retro-fit highways when design and construction standards change. He also found that there was no evidence that the lack of hydroplaning warning signs contributed to the accident as Bayfield was familiar with the stretch of highway and the risk of hydroplaning.
At the moment, the staff at the ministry are reviewing the ruling before considering its next steps, said Sonia Lowe, Ministry of Transportation public affairs officer. She had no further comment on the case at this time.
Bayfield was heading south on Highway 19 on a rainy afternoon when she pulled into the passing lane to get ahead of a logging truck that was spraying water onto her windshield. Her son was sleeping in the front seat beside her. She lost control of the 2002 Pontiac Montana van and it spun counterclockwise off the highway and into the median. She told the judge she was going around 100 km/h at the time of the accident, but there was no evidence to prove or disprove that. The posted speed limit, at the time, was 110 km/h.
According to the court document, at this point Bayfield has no memory of the rest of the incident. The right rear tire of the vehicle was torn off as the car moved sideways across the median. At the bottom of the slope of the median the van encountered soft muddy soil and several inches of standing water. When it reached the opposite, upward embankment it rolled. The vehicle flipped into the oncoming traffic. Bayfield’s son was ejected from the car and badly injured. Bayfield remained in the vehicle but she also suffered serious injuries.
Bayfield initially sued the ministry in March of 2007. The case was first seen in court on June 2, 2015.
In her initial statement of claim she alleged that the ministry was responsible for the negligent design and construction of the highway where the accident occurred. In June of 2014 the statement of claim was replaced by a notice of civil claim. The new pleading added an allegation of negligent maintenance and alleged that the drainage capacity of the median did not meet relevant design standards.
In their response, the ministry said that the highway construction and maintenance were the responsibility of an independent contractor at the time of the accident, but it did acknowledge that it owes a duty to construct and design a roadway that is reasonably safe.
The court proceedings in 2015 dealt with whether evidence of poor maintenance could be used by Bayfield’s lawyer to prove the ministry liable, or by the ministry to prove faulty maintenance to which it was not liable. The trial was adjourned with the judge suggesting that the pleadings be amended to clarify the issue of maintenance.
Bayfield and the ministry appeared in court again on Sept. 1, 2016. Bayfield revised her argument, dropping the allegations of faulty maintenance and instead submitting evidence that the median at the location of the accident was improperly designed and constructed.
She also alleged that the highway at the location of the accident constituted a nuisance because its design and construction interfered with her right to freely, safely and conveniently use and enjoy the highway.
In his Reasons for Judgement document, the judge considered the weather conditions, the speed at which Bayfield was driving and the condition of her tires.
He heard about the physical evidence observed at the scene of the accident as well as measurements and observations from professional engineers who returned to the scene of the accident in 2010, 2014 and 2015.
“The potential for serious injury and property damage would have been reduced by more than 80 per cent if the design standard had been met,” said Ian Adam, one of the engineers, in his report to the court.
There were other witnesses, as well as an article from the Mirror published in 2007 about how treacherous the Inland Island Highway was.
Justice Affleck concluded that hydroplaning was the reason that the vehicle left the road, but that the rollover was the cause of the injuries. He decided there was no use analyzing the case as nuisance because the outcome would would be the same. He found it sufficient to establish liability based on only negligence.
Damages were agreed. The Court invited an exchange of written arguments about whether to allow costs and expenses.