Rooster Tails and Snowy Trails: Duties of Care and Winter Driving in BC

Picture this. It’s snowing heavily. You are driving on an unplowed highway at a responsible speed, taking into account the road and weather conditions. Out of nowhere, a truck passes recklessly at a high rate of speed, obscuring your view of the road with snow. Sound familiar?

A recent judgment of the Supreme Court of British Columbia, Link v. Insurance Corporation of British Columbia, 2014 BCSC 1765, dealt with the duty of care drivers owe to other drivers when overtaking them on a snow-covered highway.

The duty of care when overtaking another vehicle is statutorily mandated in sections 157 to 159 of the Motor Vehicle Act. Section 157 requires that you only pass another vehicle on the left at a safe distance and do not return to the right side of the highway until safely clear of the overtaken vehicle. Section 158 prohibits passing on the right except in certain circumstances. Section 159 prohibits you from driving on the left when passing unless it can be done safely.

In this case, Mr. Link was driving home from Richmond to White Rock, BC on Highway 99. It was snowing heavily and the highway had not been plowed. An SUV approached from the rear, changed from the slow lane occupied by Mr. Link into the passing lane and drove past at a high speed, cutting back in front of him and delivering a “rooster tail” of snow onto his windshield. Blinded by the snow, Mr. Link braked, lost control, and collided with the highway median.Rooster Tails and Snowy Trails 01

The court found the SUV driver had breached the standard of care and Mr. Link was not partly responsible, or contributorily negligent, as braking was a reasonable reaction to “losing total forward visibility”.

The commentary I have heard in discussions of this decision sets out two criticisms:

  1. Passing in winter conditions will generally cause snow to be raised into the air obscuring the view of the vehicle being passed. Does this decision mean overtaking a vehicle on a snow-covered highway is negligent? Granted, there is a difference between some snow in the air and a “rooster tail” of snow on a windshield, but how can one gauge the amount of snow their car will raise in passing, and at what point does that amount of snow constitute negligence?

  2. Winter driving requires avoiding sudden driver inputs. Mr. Link should have taken his foot off the accelerator and kept steering straight letting the wipers clear the windshield. By suddenly braking, he was partly responsible, or contributorily negligent, for the accident.

Regardless, putting aside the legal arguments, the timing of this decision nicely coincides with the falling leaves, foreshadowing the oncoming winter driving season.

Ensure your car is ready for the ice and snow, and keep in mind that your driving affects other drivers on the road. Always drive responsibly and with courtesy and due care—especially when dealing with rooster tails and snowy trails…


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Einfeld Law is a highly knowledgeable and experienced BC personal injury law firm specializing in motor vehicle accidents, motorcycle accidents, and other negligence claims involving bodily injury. We have successfully litigated many ICBC and other insurance claims, including out of province, wrongful death, brain injury, spinal cord injury, whiplash, soft tissue injury, and all other bodily injury claims. We have collected millions of dollars on behalf of our clients. We never act for ICBC or other insurance companies.

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