Krista Lena Borgfjord, an infant by her litigation guardian, John Borgfjord v. Mildred Eileen Boizard, Earl F. Boizard, et al.

(British Columbia) (Civil) (By Leave)


Torts - Motor vehicles, Negligence.


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Torts – Motor vehicles – Negligence – Causation – Whether motor vehicle safety legislation supersedes the common law duty of care – Whether courts should use proximate cause analysis for the protection of less blameworthy defendants – Whether the Court of Appeal misapprehend the concept of inferential causation.

On a clear day, Ms. Boizard was driving at approximately 80-85 kph when she began to pass slower moving vehicles in the right and middle lanes of a long, straight, uphill, three-lane section of the Coquihalla Highway. When she entered the left lane, she could not see any traffic approaching from behind. While she was overtaking the vehicle in the middle lane, Mr. Thue approached from behind at an unusually high rate of speed. Instead of slowing to match her speed, he changed to the middle lane without slowing, then to the right lane. There, he saw the very slow moving vehicle in the right lane just ahead of the vehicle in the middle lane. Mr. Thue sped up, intending to pass the vehicle in the middle lane and squeeze back into the middle lane before the vehicle in the middle lane closed the distance between it and the vehicle in the right lane. He came into contact with the back left corner of the vehicle in the right lane. This contact caused great damage to the passenger side of his vehicle and his two passengers were ejected, suffering catastrophic injuries. The Thue vehicle spun uphill in front of the vehicle in the middle lane, and came to a stop facing Ms. Boizard’s vehicle in the left lane. She stopped as quickly as possible, with only a minor impact. Mr. Thue was convicted of dangerous driving causing bodily injury. One of the injured passengers argued that Ms. Boizard was negligent in changing lanes and failing to overtake Mr. Einarson’s truck at a reasonable speed.

The trial judge found Ms. Boizard 10 percent liable for the accident on the grounds that she had failed to meet the standard of a reasonable driver in that she had not passed the Einarson rig as fast as was reasonably possible. The Court of Appeal allowed the appeal.