Tag: no negligence

Cyclist Injured In Collision With Cement Truck Loses at BC Court of Appeal


Earlier this month the BC High Court dismissed an appeal by a cyclist who sustained serious injuries when he collided with a cement truck in 2004 (Sivasubramanian v. Franz).
The cyclist was travelling on the right hand shoulder of a roadway.  As he approached an intersection there was a cement truck ahead of him signalling to turn right.  The truck then started its turn and the cyclist collided into the midsection of the truck.  The Plaintiff sued the cement truck driver.  The case was dismissed at trial (you can click here to read my summary of the trial Judge’s findings).
The Plaintiff appealed arguing that the trial judge was wrong to dismiss the claim because the motorist should have seen the cyclist before the collision and should not have turned when he did.  The BC Court of Appeal disagreed and dismissed the case.  In dong so the Court made the following comments:

[24]         In the case at bar, the respondent truck driver was in the midst of a lawful turn to the right from the curb lane when the appellant rode his bicycle heedlessly into the mid-section of the truck. I agree with the trial judge’s conclusion that it would be unreasonable for Mr. Franz to assume that the appellant, or indeed any other user of the highway, would ignore his indication to turn right, and that by the time the appellant reached the intersection, Mr. Franz was well into his turn and could not have avoided the collision.

[25]         The appellant’s submission that he was so close to the intersection as to constitute an immediate hazard to which Mr. Franz had sufficient time to react and take evasive action is not supported by the trial judge’s findings of fact.

[26]         Second, the appellant’s argument that the trial judge erred in finding that even if Mr. Franz had seen the appellant he would have been justified in making the right hand turn is supportable. Given the trial judge’s findings I see no error in her conclusion.

[27]         I would not accede to the appellant’s arguments. Notwithstanding Mr. Thomas’ able submissions, cases such as this are fact-driven. As in Trac v. Sangra (1995), 17 B.C.L.R. (3d) 92, “this is a case that could be won, if at all, only at trial. For us to interfere would require us in effect to retry this case and to take a different view of the facts from that of the trial judge. That we are most reluctant to do.”

[28]         In my opinion, the appeal should be dismissed with costs to the respondents.

This case demonstrates one of the most basic principles in personal injury lawsuits (tort claims); in order to successfully sue for personal injuries the other party must be at least partially at fault otherwise the result will be dismissal at trial.

Jury Finds Driver Faultless for Going Through Stop Sign in Icy Conditions


I have written previously about the ‘invevitable accident‘ defence more accurately referred to as a ‘no-negligence‘ defence.  Today the BC Court of Appeal released reasons for judgement considering this area of the law in the context of a personal injury lawsuit that was dismissed by a BC Jury.
In today’s case (Bhangal v. Sloan) the Plaintiff was injured when his vehicle was struck by a pick-up truck driven by the Defendant.  The Defendant went through a stop sign without stopping.    His explanation was that he was not careless but rather could not stop due to the slope of the hill he was travelling down and ice on the roadway.  The Jury accepted this evidence and dismissed the Plaintiff’s claim finding that the Defendant was not careless in operating his truck.
The Plaintiff appealed arguing that the Jury was wrong and that their finding was one “no properly instructed jury could reach“.  The BC Court of Appeal disagreed and upheld the Jury dismissal of the personal injury lawsuit.  In reaching this conclusion the BC High Court reasoned as follows:

In Fontaine, the principle of res ipsa loquitur was put to one side as being no longer applicable in Canadian negligence law. It is no longer to be presumed that a car running off the road (or its loss of control) is attributable to the negligence of its driver. Rather, a case in negligence must be proven on both the direct and circumstantial evidence adduced, with effect being given to such inferences as the evidence properly supports.

[10] In Nason v. Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. 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 at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant 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.”

[11] Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.

[12] I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

[13] Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

[14] I would accordingly dismiss the appeal.

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.

Contact

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer