This side of the road car accident injury case(Ruchelski v. Moore, 2013 BCSC 492) applies the rarely used Presumption of Negligence principle set out in the seminal Supreme Court of Canada case of Fontaine. Experienced personal injury lawyers in Canada have been aware for some time that Fontaine completely did away with the rebuttable presumption of Res ipsa loquitur(the thing speaks for itself). In my view, after studying and practising personal injury law since 1992, in car accident cases the law now requires that the presumption be dealt with by the Judge or Jury as the trier of fact, who weighs the circumstantial evidence with the direct evidence.

In this injury case the accident occurred when the claimant was on her way into Vernon when she came across a patch of ice. Her vehicle started sliding to the right. She applied the brakes but could not bring her vehicle to a stop and it came to rest partly in the ditch blocking a portion of the lane she had been traveling in. While standing at the back of the car on the shoulder of the road she heard a “bang”. This noise was caused by the defendant’s vehicle contacting the rear of her car, which then struck her left buttock area. According to the injury claimant she was projected approximately two metres and landed on her left buttock.

The court found the other driver 100% at fault finding that the claim had established  a case of negligence and the other driver had not provided a reasonable explanation for hitting into the back of her car. As the Judge pointed out at paragraph 42:

In my view, the plaintiff has established a prima facie case of negligence. As was stated by Finch J.A. (as he then was) in Savinkoff v. Seggewiss (1996), 25 B.C.L.R. (3d) 1:

            In my view, sliding out of control into the plaintiff and the stopped vehicle gives rise to an inference of negligence on the [the defendant’s] part, in that he was either not sufficiently attentive to the road conditions, or he was driving too fast, or both. It was for him to explain how this accident could have occurred without negligence on his part, and on the evidence there is no satisfactory explanation. I would allow the appeal on the first issue and hold the defendant was negligent.

The claimant submitted that the award for pain and suffering should be in the range of $75,000-$85,000 and the defendants thought $45,000 would be an appropriate award. The claimant testified that after the car accident, the whole left side of her body was bruised all the way down to her hips. She also had pain in her left arm and upper body and was left with some ongoing left buttock pain.

The injury claimant received an award of $105,982.00 of which $60,000 was for pain and suffering for the car accident injuries. For beginners watch my short video about how judges decide personal injury cases.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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