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Circumstantial Evidence and ICBC Unidentified Motorist Claims

Written by admin on . Posted in ICBC Liability (fault) Cases. 54 Comments on Circumstantial Evidence and ICBC Unidentified Motorist Claims

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a Plaintiff’s ICBC Claim alleging that an unidentified motorist caused a significant collision.
In last week’s case (Paguio v. Fraser) the Plaintiff was injured when his scooter collided with another vehicle.  The Plaintiff suffered a “serious head injury” and his ability to give evidence surrounding the circumstances of the crash were limited.
The Plaintiff conceded that the vehicle he collided with did nothing wrong but alleged that an unidentified motorist cut the plaintiff off forcing him into the other vehicle.  Mr. Justice Williams rejected this argument concluding that on a balance of probabilities the evidence did not support such a finding.  Prior to doing so the Court listed the following applicable principles when faced with a claim based on circumstantial evidence:

[60] …I must be guided by certain basic concepts that govern the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice Wilson provided a helpful discussion of the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence and provided reference to the applicable authorities.

[61] The principles as I understand are these:

(a)      Where a case is not proved by direct evidence, the court will carefully examine and consider the relevant circumstantial evidence.

(b)      Circumstantial evidence derives its effect through the process of the trier of fact drawing reasonable inferences. That is a cognitive process whereby, once certain facts are established or proven, then a logical conclusion is considered. It is the process of reasoning from a proven fact or facts to a reasonable, rational and logically legitimate conclusion.

(c)      The drawing of an inference is different than mere conjecture or a guess, no matter how shrewd or plausible that guess might be.

(d)      An inference, once properly drawn, must give rise to a reasonable conviction in the mind of the trier of fact that the element of which proof is necessary is at least more likely than not, or to some greater degree of certainty.

(e)      The plaintiff can succeed in proving his case on the strength of a reasonable inference which gives rise to a conclusion that the element has been proven on a balance of probabilities. If the inference does not support the conclusion to that standard, then the proof is not made out.

[62] In the final analysis, applying these guiding principles, and having examined the evidence carefully, I have concluded that the circumstantial evidence proffered by the plaintiff does not enable me to find that the case has been proven to the necessary standard. The plaintiff has not met the onus of proof he bears to establish his claim and it must therefore stand dismissed.

More on Circumstantial Evidence and Your ICBC Injury Claim

Written by admin on . Posted in Uncategorized. 53 Comments on More on Circumstantial Evidence and Your ICBC Injury Claim


Further to my previous post on this topic, historic reasons for judgement were released today on the BC Supreme Court website demonstrating that circumstantial evidence can be enough for a Plaintiff to win their ICBC injury claim.
In today’s case (Tweedie v. ICBC) the Plaintiff was injured while out for a morning jog in 1999.  There were no witnesses to the incident that injured the Plaintiff.  The result of the Plaintiff’s trauma was such that she could not remember how she was injured.   In her dazed state of mind she initially thought she tripped while jogging however, on learning about how serious her injuries were (these included several broken ribs, multiple fractured bones in her foot and a fractured fibula) the Plaintiff assumed she must have been struck by a vehicle.
The Plaintiff sued ICBC directly for compensation under s. 24 of the Insurance (Vehicle) Act (the section dealing with unidentified motorist claims).  ICBC denied liability arguing there was no proof that a motor vehicle collision caused the injuries and that even if the injuries were caused by a vehicle there was no proof that the driver of the vehicle was negligent.  Mr. Justice Wilson disagreed and found that ICBC is liable for the Plaintiff’s injuries as a result of the collision.  In reaching this verdict the Court relied exclusively on circumstantial evidence.  Mr. Justice Wilson provide the following useful summary of the law regarding finding fault in an injury claim based wholly on circumstantial evidence:

[3]           The principles are well-established for assessing liability where the evidence is circumstantial, but it is still useful to refer to them.  In the decision of the Supreme Court of Canada in Montreal Tramways Company v. Leveille, [1933] S.C.R. 456, the Court considered the claim of injury, a deformity to an unborn child alleged to have been brought about as a result of the child’s mother falling while on the tramway.  At p. 466, Mr. Justice Lamont considered the issue of whether there was evidence on which the jury could reasonably find the existence of a causal relationship between the accident to the mother and the deformity of the child’s feet, and said this:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn inRichard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact.  The applicant must prove his case.  This does not mean that he must demonstrate his case.  If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon.  Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

There was undoubtedly evidence to go to the jury that the mother’s accident was caused by the fault of the Company, and the jury’s finding on that point cannot be disturbed.  That such fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence.  It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury.  These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn.  It is not sufficient that the evidence affords material for a conjecture that the child’s deformity may have been due to the consequences

of the mother’s accident.  It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.

At p. 469, he referred to the decision of the House of Lords in Jones v. G.W. Rly. Co. (1930), 47 T.L.R. 39, in which the Court had to consider whether there was evidence on which a jury could properly find negligence on the part of the defendant’s servants which caused or contributed to the death of a husband of the first plaintiff.  He quoted from the decision of Lord MacMillan:

The dividing line between conjecture and inference is often a very difficult one to draw.  A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess.  An inference in the legal sense, on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof.  The attribution of an occurrence to a cause is, I take it, always a matter of inference.  The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability.  Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.

And then, on p. 474, after considering the difference in the jurisprudence in Quebec under the Civil Code and in the rest of Canada under the common law, he said:

… under either the French or English jurisprudence, the presumptions or inferences to be receivable as proof must be a deduction from established facts which produce a reasonable conviction in the mind that the allegation of which proof is required is probably true.  That conviction may vary in degree between “practical certainty” and “reasonable probability”….

The question, however, is whether he instructed the jury sufficiently?  In a case such as this it is, in my opinion, essential that the judge should instruct the jury that the presumption which they are entitled to admit as proof must not be a mere guess on their part, but must be a reasonable deduction from such facts as they shall find to be established by the evidence.

That is the standard which must be met here, where I am the trier of fact.

[4]           In a decision of the British Columbia Court of Appeal, Plett v. Insurance Corporation of British Columbia (1987), 12 B.C.L.R. (2d) 336, under the heading “Circumstantial evidence”, at p. 341, Mr. Justice Wallace said this:

In cases such as this, in which the evidence is circumstantial, inferences of negligence cannot be drawn unless there are positive proven facts from which such inferences can be made.

In Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152, [1939] All E.R. 722 (H.L.) a case concerning an industrial accident to a workman, Lord Wright stated at pp. 169-170 what is, in my respectful opinion, the correct approach to a case which turns solely on circumstantial evidence:

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed.  The Court therefore is left to inference or circumstantial evidence.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

In the present case there are, I think, certain known facts which enable some inferences to be drawn.  Beyond that point the method of inference stops and what is suggested is conjecture.  It is not necessary to recapitulate the facts which have been fully stated by my noble and learned friend, Lord Atkin.  I shall be content to state what I regard as proved by the method of inference, and reject what appears to be made to be a matter merely of conjecture.

BC Personal Injury Claims and Circumstantial Evidence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

If you are injured in BC through the actions of another but can’t gather any direct evidence proving that the other party is at fault can you still succeed in a claim for damages?  The answer is yes a lies in circumstantial evidence.
Direct evidence is evidence that stands on its own to prove a fact :”I saw the Defendant get drunk, get behind the wheel speeding like a maniac and hit the pedestrian“.  Circumstantial evidence, on the other hand, is evidence that proves a fact by an inference “the defendant had 12 drinks on his bar tab and at the scene of the accident he was found unconscious in the driver seat, smelling of alcohol, in front of the pedestrian who was found injured in the crosswalk“.  In the first example there is direct evidence of drunk driving causing injury, in the second example there is evidence that can lead to the reasonable conclusion of drunk driving causing injury.
Negligence in BC Personal Injury cases can be found wholly on circumstantial evidence and today reasons were released by the BC Court of Appeal dealing with the law of circumstantial evidence in an ICBC claim.
In today’s case, Michel v. Doe and ICBC, the Plaintiff was “seriously injured by an object that had come off a loaded logging truck being driven by an unidentified driver.”   The Plaintiff sued for damages.   Since the driver left the scene of the injury and could not be identified the Plaintiff could not prove what specifically, if anything, the driver did wrong in contributing to this object coming off the logging truck.  The lawsuit was dismissed at the trial level due to a lack of evidence of negligence.  The Plaintiff appealed.
The BC Court of Appeal dismissed the appeal but in doing so discussed the law dealing with circumstantial evidence in BC personal injury claims.  The highlights of this discussion are reproduced below:

[21]          In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:

[9]        The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence:  Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577.  That case was decided after the judgment at trial in the case at bar.

[10]      While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified.  The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence.  The legal burden of proof, of course, remains on the plaintiff throughout.

[22]          The appellant argues that the “question which must be asked and which the learned trial judge did not ask is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur without negligence.”  However, this question was posed in Fontaine in the context of the Court’s discussion regarding the requirements for the application of res ipsa loquitur during the course of its “obituary” for the Latin maxim (Gillis v. B.C. Transit, 2001 BCCA 248 at para. 4, 88 B.C.L.R. (3d) 163).  Nonetheless, it is arguable that despite the reformulation given in Fontaine, this question remains relevant to the issue of whether a prima facie case of negligence has been made out.  In Fontaine itself, in concluding that the circumstantial evidence present did not discharge the plaintiff’s onus, the Court stated “it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence” (paras. 31-32).  Moreover, as previously noted, Marchuk held that despite its criticism of res ipsa loquitur, the Court in Fontaine had not actually modified the underlying principles governing the use of circumstantial evidence in determining liability for negligence.  Further, in Lemaire v. Ashabi et al, this Court upheld the trial judge’s decision finding negligence, a decision which referenced Fontaine, stating with respect to the trial judge’s finding of prima facie negligence that:

[7]        She first considered whether the prima facie inference of negligence could be drawn.  She cited (at para. 56) United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the principle that:

… the fact that an operation is under the control of the defendant coupled with the fact that the accident is such that in the ordinary course of things it would not happen if those having the management use proper care, is sufficient to establish a prima facie case of negligence.

[23]          In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred.  In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care.  Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.

[24]          The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.”  Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection.  He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection.  In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.

[25]          In my view, this case is analogous to the application of Fontaine in Hall v. Cooper Industries, Inc., 2005 BCCA 290 at para. 59, 40 B.C.L.R. (4th) 257: “[the appellant] did not establish aprima facie case of negligence which caused the accident.  Therefore the case never reached the point where [the respondent] was required to produce ‘evidence to the contrary.’”

[26]          The trial judge’s conclusion that the evidence was equally consistent with the possibility that the rock was “somewhere in the middle of the load but near the front, where it could have eluded detection without negligence” as with the possibility that it was somewhere it ought to have been discovered, is consistent with the trial judge having considered the question of whether the accident would ordinarily occur without negligence.  His conclusion was that the accident was equally as likely to have occurred without negligence as with it.