Wiebe v. Schmidt Date:, 2013 BCPC 20

Citation: Wiebe v. Schmidt Date: 20130206 2013 BCPC 0020 File No: 20866 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JAN GERRIT WIEBE CLAIMANT AND: PAUL SCHMIDT DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: J. G. Wiebe Appearing in person: P. Schmidt Place of Hearing: Abbotsford , B.C. Date of Hearing: February 1, 2013 Date of Judgment: February 6, 2013

Introduction [1] The Claimant Jan Gerrit Wiebe brings this claim against the Defendant Paul Schmidt for damages to the Claimant’s 2001Toyota Corolla incurred on April 15, 2011 at about 9:00 p.m. when the Claimant’s vehicle struck some cattle which had wandered on toDownes Road in Abbotsford, BC. The cattle belonged to the Defendant and had escaped from a fenced pasture on land occupied by himwhich was close to Downes Road.

The Claimant says that the accident was unavoidable, and he says that the accident was theDefendant’s fault because he failed to keep his cattle properly penned up. [2] The Defendant denies responsibility for the Claimant’s damages on two grounds. Firstly, he disputes the Claimant’scharacterization of the collision with the cattle as “unavoidable”. He points out that, unlike deer or other wildlife, cattle do not dart outsuddenly into traffic. They are slow moving animals and so the Claimant struck an almost stationary object.

Therefore the Defendantstates that the Claimant failed to keep a proper lookout on the highway or alternatively he drove too fast for road conditions. [3] Secondly, the Defendant relies on Section 11(3) of the Livestock Act and says that since he took reasonable care to prevent hiscattle from escaping, he is exempted from liability. [4] At the trial of this matter, the Claimant and Defendant testified. The Claimant also called the owner of the body shop thatworked on his vehicle to verify that the repairs claimed all relate to this incident.

The Claimant wished to call a further witness, thedriver of another vehicle who had witnessed the accident, but he neglected to subpoena the witness, and the witness did not attend courtvoluntarily as the Claimant had expected. At the conclusion of the hearing, decision was reserved in order to allow me to get a betterunderstanding of the defence raised under

section 11 of the Livestock Act. Following are the reasons for the judgement rendered in thismatter.

Summary of Evidence [5] According to the records of Environment Canada as well as a police report prepared following this incident, the night ofApril15, 2011 was a rainy one in Abbotsford. Downes Road is a rural roadway that has no illumination at the location where theClaimant’s vehicle struck the Defendant’s cattle. The Claimant testified that prior to the collision he was travelling between 50 and 55kilometres per hour. The posted speed limit on this stretch of road is 50 kilometres per hour. The road has no shoulders and there aredrainage ditches on either side of the road. The road is also very hilly.

It was the Claimant’s evidence that upon becoming aware of thepresence of the cattle on the road he had little or no opportunity to stop his vehicle because of the darkness and the rain. [6] The Claimant believes that he struck a total of three cows. One of them slid across the hood of his car and struck thewindshield, breaking it. The cows also struck both sides of his car, causing the front quarter panels to buckle. The driver’s side mirrorwas knocked into the driver’s window, causing it to break. It cost the Claimant $3,900.30 to repair the vehicle, and another $225.04 tohave it towed.

Mercifully, none of the cattle appear to have been injured. [7] The Defendant is skeptical about the Claimant’s reported speed, given the amount of damage to the vehicle, despite the factthat the Claimant tried to stop. He argued that the Claimant should have had ample time to stop the vehicle. To prove this, he videotapedhimself driving at the same speed as the Claimant, and then measured the stopping distance.

He also supplied tables obtained from theinternet showing the stopping distances for various speeds and from these he argues that the Claimant had ample time to stop his vehiclebetween the time he should have seen the cattle and when he actually saw them. In fairness to the Claimant however, the Defendant wasable to measure stopping distance knowing that he was planning on stopping. I agree with the Claimant that this is a completely differentsituation from someone not planning on stopping, who must react suddenly while on a dark road, in rainy conditions.

I agree that theClaimant would have had to react under vastly different conditions than those present in the Defendant’s experiment. [8] The Defendant also argues that he is exempted from liability because his circumstances fall within section 11 (3) of theLivestock Act, which excuses him from liability. Under that section, the owner of livestock is exempted from liability from damagecaused by the livestock when it is at large if the owner took reasonable care to ensure that the livestock was not capable of escaping.

TheDefendant testified that he kept his cattle enclosed in a pasture surrounded by a wire fence with four or five strands of barbed wire. Heand his sons would regularly walk the fence line to make sure that the fence line was not broken any where. [9] The Defendant testified that on April 15th, after learning that his cattle were at large, he discovered how they had escaped. Alimb from a large tree located about 15 feet from the fence line had broken off and landed on top of the barbed wire, causing it to sagfrom the weight of the limb, low enough for the cattle to step over top of the wire.

He testified that the tree was not rotten or dead, andthere was no prior indication that such a thing would happen. The Claimant is doubtful of this explanation. He relies on data which heobtained from the internet to suggest that the winds that night were incapable of breaking tree limbs. Evidence that each of the partiesobtained from the internet might be helpful if not in dispute.

Here however neither party have the expertise to give evidence on therespective subjects of their internet research (stopping distances of vehicles or trees and wind forces), and neither party called any expertwho could be questioned or cross-examined about how to interpret the data. [10] Although the Claimant and Defendant each are suspicious of the accuracy of one another’s evidence, I am of the opinion thatboth of them were credible witnesses and I have no reason to find that either of them intentionally gave false evidence. Applicable Law (

a) Burden of Proof [11] The burden of proof in a civil case rests with the Claimant to prove his case on a balance of probabilities. As the Supreme Courtof Canada stated in F. H. V. McDougall 2008 SCC 53 , [2008] 3 S.C.R. 41, at para. [49]:

“[I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.” [ 12 ] Similarly, in a civil case, where the Defendant is relying on a specific defence, he must show, on a balance of probabilities that he is entitled to the benefit of that defence. (

b) Section 11 of the Livestock Act [ 13 ] In British Columbia, the law makes an owner of livestock responsible for damage caused by that livestock while it is at large unless such an owner shows that he or she took reasonable care to make sure that the livestock would not escape.

Section 11 of the British Columbia Livestock Act imposes strict liability on an owner of livestock running at large, but that owner can be relieved of such liability if the owner can prove, on a balance of probabilities, that he or she took reasonable steps to prevent the livestock from escaping. This principle has been applied by a number of decisions of the courts of this province including McIntyre v. Collier (1999) 42 M.V.R. (3d) 99 (BC Supreme Court) ; Richert v. Boesterd [1984] BCJ No. 826 (BC Supreme Court) ; Fitzen v. Savoy 2003 BCSC 814 (BC Supreme Court); and Buss v. Day 2002 BCPC 713 (BC Provincial Court). [ 14 ]

Section 11 reads (in part) as follows: 11.

(1) Subject to subsection (3), the owner of livestock is liable for damage caused by the livestock while the livestock is at large contrary to this Act or the regulations or any other enactment... (3) Subsection (1) does not apply if an owner establishes that: (

a) the owner's livestock was at large as a result of

an act or omission of a person over whom the owner had no control, or (

b) the owner took reasonable care to ensure that the livestock was not capable of escaping and being at large contrary to this Act, the regulations or any other enactment. [ 15 ] If an owner can show that he took reasonable care to prevent the livestock from escaping, section 11 (3) exempts that owner from liability, notwithstanding that the animals caused damage which is not the fault of the party sustaining the damage. Though not technically an “Act of God” within the legal definition of that term, the principle is somewhat similar in that damage has occurred through no human fault. (

c) The Motor Vehicle Act [ 16 ] The Motor Vehicle Act of British Columbia places a number of requirements on persons operating motor vehicles on highways in the province. Under section 144 (1) (

c) of that Act, a person must not drive “at a speed that is excessive relative to the road, traffic, visibility or weather conditions”. However a person is not necessarily operating a motor vehicle contrary to section 144 (1) (

c) simply because an accident has occurred. The Supreme Court of British Columbia held in R. v. Orban 2007 BCSC 760 that all of the circumstances must be considered before deciding whether or not a driver has driven at a speed considered to be too fast for road conditions. Analysis [ 17 ] In this case, both the Claimant and the Defendant have expressed scepticism about each other’s evidence. Notwithstanding this, I find no reason to question the honesty of the Claimant or the Defendant. The tests conducted by the Defendant respecting stopping distances are not of much use to deciding the facts of this case.

The Defendant knew he was going to stop in each test, and was not confronted with an unexpected obstacle. They do not factor in reaction time or how wet pavement would affect the ability to stop. I also accept the Claimant’s evidence that the combination of rain, darkness and a lack of street lighting adversely affected his ability to see the cattle that night. I also note that the police report of the accident does not attribute any fault to the driver.

I am unable to find fault with the Claimant for this accident, and there is no evidence on which to conclude that he operated his vehicle at an excessive speed for the conditions present. [ 18 ] Simply because the Defendant is the owner of the cattle which caused the accident does not in and of itself place liability on him. Section 11(3) of the Livestock Act protects him from liability if he can show that he took reasonable care to ensure that the cattle remained confined.

On the evidence before me, the only reasonable explanation for the cattle being at large is that offered by the Defendant, the unanticipated presence of a large limb of a tree falling on the barbed wire fence, causing to wire to lower so that the cattle could escape. The evidence suggests that but for this occurrence over which the Defendant had no control, the cattle would not have escaped because the Defendant took reasonable care to contain the animals. He erected a four strand fence with fence posts reasonably spaced, and made regular checks of the fence.

The Defendant has met the requirements of subsection (3) which exempt him from liability under subsection (1) for the damages caused by his livestock. [ 19 ] In the final analysis, neither party are at fault for the Claimant’s damages. No judgement can be awarded against the Defendant on these facts and therefore the Claimant’s claim against the Defendant is dismissed. Order [ 20 ] The Claimant’s claim brought against the Defendant is dismissed. Normally, under Rule 20 (2) of the Small Claims Rules, the

successful party is entitled to the costs allowed under that rule unless a judge orders otherwise. In my view, this is an unfortunate situation which occurred without either party being at fault and therefore it would be unfair to penalize either party with costs. Accordingly, each party will bear their own costs of this action. Dated at the City of Abbotsford, in the Province of British Columbia this 6 th day of February, 2013. ________________________________ The Honourable Judge K. D. Skilnick