Has potential to change the law
The unique moose-vehicle class-action lawsuit being handled by Ches Crosbie starts Tuesday, and the case has the potential to break new ground in the land of the law.
Crosbie said he doesn’t know of any cases in Canada like it, but there have been some in the U.S. that involved allegations that wildlife fencing should have been in place.
In some cases, the plaintiff won, Crosbie said. They were individual cases and not class action such as the one he is handling.
“The case really is a case for experts. It’s a common issues trial,” said Crosbie.
This week there will be experts in their respective fields called to the stand such as Bob Cuff, a Newfoundland historian who will explain the history of moose on the island.
The case will start, though, with some people who have been directly affected by a moose-vehicle collision.
“It’s just to put a human face on the problem or the scope of the problem,” Crosbie said.
Jennifer Pilgrim, who is a plaintiff witness, lost her husband in a moose-vehicle collision in 2009. Ben Bellows, another main plaintiff, is quadriplegic as the result of a moose-vehicle accident in 2003.
The case isn’t dealing with particular injuries or individual compensations, though.
“The questions are questions like, ‘Is the government negligent? Is there a defence of core policy decision?’ Because if the government can prove that what was done or not done was a matter of core policy decision, then they have a good defence. Also, we’re looking at causation,” said Crosbie.
Causation deals with where collisions happen. There are moose-vehicle collisions all over the island, but they also happen in areas of concentrated collisions.
“For any individual class member, there remains the issue of, was there a particular accident at a position on the highway which should have been fenced?”
Nobody is suggesting the entire TCH should be fenced off, Crosbie added, but there are areas that may be proven to be of higher risk. Also, if an accident took place in a location where collisions are a rarity, the government can argue the area wouldn’t have been fenced anyway and wouldn’t have prevented a collision.
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“So that’s where the argument based on (moose) density becomes very important,” Crosbie said.
The Save Our People Action Committee formed in 2009 by survivors of moose-vehicle collisions to highlight the problem of moose on the highways in Newfoundland and Labrador. TheIt has a goal to reduce the moose-vehicle collision rate by 50 per cent or more over five years.
“Can that be done by reduction of the population of moose, at least in the areas adjacent to the major road? That’s the question. And if we can show that that is feasible then we may be able to prove that independently of where the fencing might be put, the probabilities favour that none of these people would have been in a collision,” Crosbie said.
Although the case may seem complicated, Crosbie said it’s not bad on a relative scale. He compares it to a malpractice trial he just finished that had 12 doctors testify.
“Compared to that it’s not complicated. It’s not complex in terms of the evidence.”
If Crosbie and his group win, the result could carry quite a bit of clout, though.
“The challenge is in the law because if we succeed it will be new law. We are pushing back the frontiers of the law, for sure,” Crosbie said.