Proving Your BC Injury Claim: A "Balance of Probabilities"


When you sue someone in British Columbia for causing injuries (either negligently or intentionally) you need to prove your case.  If you fail to do so your case can be dismissed and you may end up paying the other party’s Court costs.
What is the test that needs to be met when proving your injuries?  Unlike criminal trials which require proof of a crime ‘beyond a reasonable doubt‘, civil lawsuits have a much lower burden of proof.  A Plaintiff in an injury lawsuit need only prove their claim on a ‘balance of probabilities‘ which means more likely than not.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the civil burden of proof in an ICBC claim.
In today’s case (Costello v. Rafique) the Plaintiff was involved in a ‘relatively minor rear-end collision‘ in 2006.  He sued for damages.  The Plaintiff claimed the accident caused a back injury which continued to cause problems up until the time of trial.  The Defendant disagreed arguing the car crash was not the cause of the Plaintiff’s ongoing pain problems rather these were attributable to a previous back condition (the Plaintiff in fact underwent a decompressive laminectomy shortly before the collision).
Mr. Justice Melnick found that while the Plaintiff did indeed continue to suffer from back pain, and that the ongoing symptoms “may well be…the result of soft tissue injuries resulting from the accident” possibility is not enough to prove a case on the civil standard.  In dismissing the Plaintiff’s allegation of causation of ongoing injuries due to the collision the Court stated as follows with respect to the Civil Burden of Proof:

[16] It may well be that Mr. Costello’s continuing back pain is the result of soft tissue injuries resulting from the accident. However, on the balance of probabilities, Mr. Costello has failed to persuade me that this is the case…

[17] Dr. Reebye’s carefully worded report really says it all:  “[t]he soft tissue injuries were responsible for his symptoms and limitation soon after the accident” [emphasis added] and, “[t]he injuries sustained were not severe enough to aggravate his pre-existing conditions.” I note that it is possible that Dr. Reebye is wrong. It could be that the whiplash from the accident did affect Mr. Costello’s spine in a way that affected the area of the surgery. But without a full and proper medical investigation with the aid of diagnostic imaging, I have no way of knowing that. The body of evidence that has been put before me on behalf of Mr. Costello, who bears the burden of proving his case on the balance of probabilities, just does not do that. The evidence neither convinces me that the soft tissue injuries from this minor rear-end collision have independently resulted in the debilitating pain and discomfort I have no doubt he now suffers, or that those injuries in some way affected the area of his spine which was the subject of the 2006 surgery or in some way caused his pre-existing condition to re-assert itself.

[18] I am convinced on a balance of probabilities that Mr. Costello did, indeed, suffer soft tissue injuries in the motor vehicle accident which caused him pain and discomfort for a period of time that cannot be quantified precisely but, before the time of trial, would have been resolved. Dr. Reebye’s suggestion in cross-examination that Mr. Costello could experience effects of the accident for five to ten years is implausible and at odds with his report. As noted above, I have no doubt that Mr. Costello is suffering back pain but I am not satisfied, to the standard required on a civil trial, that his current problems result from the injuries sustained in the motor vehicle accident. ..

Balance of Probabilities, bc injury claims, Civil Burden of Proof, Costello v. Rafique, ICBC claims, Mr. Justice Melnick

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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