Back To Basics: Proving Fault in a BC Personal Injury Claim
When suing for damages as a result of a personal injury claim (specifically a Negligence claim) there are 3 basic matters that must be proven. These were discussed in reasons for judgement released earlier this week by the BC Supreme Court, Nanaimo Registry.
In this week’s case (Brooks-Martin v. Martin) the Plaintiff was involved in a 2005 motorcycle crash in Saanich, BC. She lost control of her bike. She claimed that another motorcyclist, who was travelling in front of her, swerved in front of her causing her crash. She sued the other motorist and also a company she alleged was responsible for failing to clean up gravel spilled onto the road which allegedly contributed to the crash.
At the close of the Plaintiff’s claim the Defendant brought a ‘no-evidence’ motion and asked the Court to dismiss the Plaintiff’s claim. Mr. Justice Halfyard refused to do so and provided the following succinct reasons summarizing the law of no-evidence motions and the basic requirements of a successful lawsuit for negligence in British Columbia:
 The legal test that must be met by a defendant who makes a motion for non-suit has been stated many different ways by many different courts. Based on the authorities, I would state the rule in this way: In order to succeed on a motion for non-suit, a defendant must persuade the court that there is no evidence which is capable of proving one of the essential elements of the cause of action alleged against the defendant. The court must not weigh evidence or attempt to make findings of fact or to assess credibility. If an inference which is essential to the plaintiff’s case would be “mere speculation,” the defendant’s “no evidence” motion should be granted. See Fenton v. Baldo 2001 BCCA 95 at paragraphs 25-26; Seiler v. Mutual Fire Insurance Co. 2003 BCCA 696 at paragraph 12; Craigdarloch Holdings Ltd. at paragraphs 14 and 30; and Tran v. Kim Le Holdings Ltd. 2010 BCCA 156 at paragraph 2….
 A plaintiff who sues for damages for personal injury allegedly caused by the defendant’s negligence, must prove:
a) That the defendant owed him or her a duty of care;
b) That the defendant did an act or failed to do an act, which act or omission fell below the standard of care required of the defendant; and
c) That the defendant’s said act or omission caused an accident (which caused injury to the plaintiff).
(See Linden & Feldthusen, Canadian Tort Law, 8th edition (2006), page 108)
 In my opinion, there is some evidence which, if believed, could support findings of each and every essential element of the cause of action alleged against MacNutt. To my mind, none of the disputed inferences required to support the plaintiff’s case at this stage, would be “mere speculation.”
 It was for these reasons that I dismissed MacNutt’s motion for non-suit.