Can I Be Compensated for Moose Collisions on the Highways of Newfoundland?

This summer it seems like we turn on the news to hear almost daily warnings about moose on roads and highways in our urban areas, including St. John's.  Frequently, the story is about yet another moose collision.  Moose accidents all too often result in serious injury and death.  Over the years I have helped moose collision victims to obtain financial compensation for moose accident injuries.  Injured drivers and passengers have obtained statutory accident benefits (also known as Section B) but these are at a very low level and quite inadequate for serious injuries.  Full compensation is potentially available for passengers from careless drivers, but drivers themselves have nobody to sue, whether they were careless or not.

Proof of liability is often difficult and uncertain.  A good example is Baker v. Russell, 2008 NLCA 51 (CanLII).  The trial judge dismissed the claim, but to the surprise of many lawyers, the Court of Appeal reversed and ordered the defendant to pay.  This is an illustration of what has been called the "forensic lottery", in which it is very difficult to predict the outcome in a case.  This is especially true of moose cases. 

I don't pretend to have the solution to making our roads safer from the hazard posed by moose.  Solutions are out there.  Other provinces and other countries like Sweden have substantial moose populations and modern highway systems, and have taken means such as fencing certain places to control the hazard.  What the solutions should be is for the government to figure out.  But most would believe that the government can do a better job than they have been doing.  Government will improve safety standards if put under enough pressure of public opinion, and pressure from lobby groups like the Save Our People Action Committee (SOPAC), and yes, maybe under pressure from a class action too.

The hazard posed by moose on the highway in Newfoundland has its own unique history. The government of Newfoundland brought moose from New Brunswick to Newfoundland in 1912.  These critters grew in numbers and posed a threat to road traffic.  If this hazard was foreseeable in 1912, then arguably the government is liable in what lawyers call the tort of negligence.  There may also be a good case in what lawyers call public nuisance.  If these theories of liability were to succeed, then those injured in motor vehicle accidents involving moose might be compensated, including those injured through no fault of the driver and including the injured driver too.  The government would have a powerful incentive to take the measures necessary to control the problem and reduce the accident rate. 

Now there is no doubt that any case alleging these theories of liability against the government, whether class action or otherwise, would be a risky case to take.

There is something government can do now quite easily to help those injured in moose accidents, and that is to make no fault accident benefits (Section B) mandatory for all vehicle owners, and greatly improve the level of benefits above the paltry amounts provided at present.   These benefits are now limited to a total of $25,000 for rehab expenses and $140 a week for total disability.  Making accident benefits mandatory, and making the benefit levels more reasonable, would have a minimal impact on auto insurance premiums, but the significant number of our fellow Newfoundlanders who are severely head injured and spinal cord injured and those injured in less disastrous ways through moose collisions every year deserve this help. 

I would love to have your comments about improving accident benefits and what you think about a class action.  The purpose of the class action would be compensation for the injured, and measures to reduce or prevent collision danger posed by moose.