BC Court of Appeal Discusses Rear End Crashes and Permitted Inferences of Negligence

Usually when a driver rear-ends another vehicle that driver is at fault.  However, this is not always the case and reasons for judgement were released today by the BC Court of Appeal addressing this area of law.
In today’s case (Singleton v. Morris) the Plaintiff was involved in a rear end collison in 2005.  She sued the owner and driver of the vehicle that rear-ended her claiming negligence.  The driver of the rear vehicle gave evidence that the collision happened not due to carelessness, but as a result of an unexpected slippery substance on the road (perhaps brake fluid) and this caused her to lose control and collide with the Plaintiff vehicle.  This evidence was accepted and the Plaintiff’s claim was dismissed by the trial court.
The Plaintiff appealed the finding arguing that the trial judge was wrong.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court discussed the permitted inferences of negligence in rear end crashes cases and the burden of proof.  The highlights of the Courts discussion were as follows:

[32] The burden of proof in cases of negligence is set out in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424. There, Mr. Justice Major stated that the maxim of res ipsa loquitur should be treated as expired. He said:

27        It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.  After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.  [Emphasis added.]

[33] Mr. Justice Major’s statement sets out the general approach in negligence cases.  That is, the trier of fact should weigh both the circumstantial evidence and the direct evidence, where available, in determining whether the plaintiff has established a prima facie case of negligence.  In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case.  Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.

[34] Importantly, as stated by this court in Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318 at para. 10:

… The legal burden of proof, of course, remains on the plaintiff throughout.

[35] Here, because the plaintiff failed to establish that the defendant was driving at an excessive speed, there was no direct evidence of negligence on the part of the defendant.  Therefore, the plaintiff was forced to rely on circumstantial evidence and sought to establish an inference of negligence because the accident was a rear-end collision.

[36] Madam Justice Newbury examined the drawing of such inferences and the rebutting of them through the defence of explanation in Nason v. Nunes, 2008 BCCA 203.  InNason, a car had gone off the road. Newbury J.A. said:

[14]   … This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated … such an inference will be “highly dependent on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”  [Emphasis in original.]

[37] In Fontaine, Mr. Justice Major applied the law relating to such inferences and the defence of explanation to the facts of the case before him, stating:

33        If an inference of negligence might be drawn in these circumstances, it would be modest.  The trial judge found that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on Loewen’s part.  Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[38] Thus, in cases such as this, the trial judge may – but is not required to – draw an inference of negligence from the fact there was a rear-end collision.  The defence, however, may attempt to rebut such inferences through the defence of explanation.  A defence of explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.) is an explanation of how an accident may have occurred without the defendant’s negligence.  The defendant does not bear the onus of proving how the accident did happen.  The trial judge drew an inference of negligence in this case.  She said, “In this case, given that this was a rear-end collision in which the truck was properly stopped and was there to be seen, there is a prima facie case of negligence.”  Further, the trial judge correctly noted that Mrs. Morris “has to advance an explanation as to how the collision may have occurred without negligence on her part.”

[39] Here, the inference of negligence was, as the trial judge correctly held, adequately explained.  The plaintiff had failed to establish that Mrs. Morris was driving at an excessive speed or braked too late.  The trial judge accepted the defendant’s explanation of the presence of the oily substance on the road.  The explanation was “adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.”  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[40] I would dismiss the appeal.