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The Unthinkable: Losing a Personal Injury Case Where the Plaintiff is Rear-Ended

The Issue:  

Plaintiffs do not lose, on the issue of who caused the car accident, when they are hit from behind.

It. Just. Cannot. Happen.

The Case:  

Plaintiff lost the Trial decision. Then she lost again on appeal.

Singleton v. Morris (2010) BC Court of Appeal

Singleton v. Morris (March 13, 2009) Supreme Court of British Columbia, Vancouver No. M060288

Why This Matters:  

For accident victims, this is a stark reminder that there are always risks to litigation.

For personal injury plaintiff lawyers, it’s a reminder to always blast back at every issue raised by the defendant. Securing your liability argument, even in a seemingly clear cut case, is crucial.

The Details:   

This is a really bad break for the plaintiff and the plaintiff’s lawyer. Due care was taken to cover off the liability argument – accident reconstruction experts were retained by both parties.

Unfortunately, the seemingly sleeper issue of this alleged grease on the road – unfortunately seen by the investigating office and the local public works superintendent – was not commented upon by either liability expert witness.

As a plaintiff’s lawyer, you help the client through four (4) difficult years from accident to Trial and cover off so many important issues – ensuring they receive accident benefits, dealing with short-term and long-term disability claims and denials, dealing with deteriorating employment situations, working through pain and suffering and medical issues – only to have the entire case turn on an issue that both liability experts do not focus upon.

What The Court Said:

As per The Honourable Chief Justice Finch:

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

 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. In Nason, 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

[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.

Gregory Chang
Toronto Insurance and Personal Injury Lawyer