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Personal Injury Lawyer Establishes Presumption of Negligence with Scant Evidence Winning the Injury Case

  
In this single car accident injury case (Bassi v. Bassi, 2010 BCSC 1896) the law of presumed negligence just got a shot in the arm. Top personal injury lawyers in BC will want to take notice of this case if the injury claimants are unable to give evidence about how the accident occurred and can only come up with circumstantial evidence. This often occurs if the claimant is a sleeping passenger or a driver with no memory of the car accident due to a head injury. In this case the driver was eastbound on a highway between the villages of Keremeos and Olalla in British Columbia when he saw a deer jump into the road to his left.  He swerved off  the road across the paved shoulder and onto the gravel shoulder to his right.  He then swerved sharply to his left, crossed the eastbound and westbound lanes of the highway crossing the paved shoulder and ending up on the gravel shoulder of the westbound lane.  As he tried to correct his vehicle’s momentum, it rolled over one complete revolution ending up with its rear wheels in the westbound lane’s ditch and his front wheels on the westbound lane’s shoulder. At no point did he hit the deer with his van. I have reviewed other deer accident cases which you may want to review.  
 The judge found that at the time of the accident the driver had been up and had not slept for nearly 24 hours as he had attended a wedding in the Lower Mainland of British Columbia.  It was during that trip home, nearly five hours into the drive, that the accident occurred causing some degree of injury to each of the three children and to his wife, all of whom are claimants int he lawsuit.   
 As to whether this was an appropriate case to be heard under Rule 9-7 the judge aptly found,    

“[10] I have considered the matter and conclude that this is an appropriate case to consider the issue of liability separately from that of damages and that it is appropriate for resolution by way of Rule 9-7 as I am satisfied that despite the relatively scant evidence to be considered on the issue of liability, I am able to find the facts necessary to determine the issue and it would not be unjust to do so on this application.  I consider that, as well, a determination under Rule 9-7 will assist in the efficient resolution of this matter.”  
 In the case of  Pitts Enterprises Ltd. v. Farkes et al, 2004 BCSC 1493, the driver was confronted by a moose which suddenly appeared in the road in front of him in circumstances where he had no opportunity to take any evasive action.  He struck the moose and went into oncoming traffic and the judge found,  

 “[12]      In circumstances where a vehicle leaves a travelled portion of the road, or moves into an oncoming lane of traffic, the presumption of negligence on the driver’s part arises, which the driver must rebut by explaining how the accident occurred without negligence on his part.  The explanation must be based on evidence not speculation (Lee v. Chan1997 CanLII 4201 (BC S.C.), (1997), 29 B.C.L.R. (3d) 27 (B.C.S.C.)).  

 [13]      If the driver can show how the accident occurred without negligence, and such explanation is a reasonable one, then the burden is again on the plaintiff to prove negligence.  If the explanation is equally consistent with negligence and with no negligence, then the burden to establish negligence still remains upon the plaintiff.  (Ballard v. North BB.R.Co. (1923), 60 Sc.L.R. 441 at p.5).”  
In that case the driver actually struck the animal on the road and what happened thereafter could not be his fault as he had lost control over the steering of his vehicle.  In this Bassi case, the driver did not strike the deer .  
Most personal injury lawyer in BC will be familiar with  the Supreme Court of Canada case of Fontaine v. British Columbia (Official Administrator)   and it was given important consideration in this case .  In Fontaine, two hunters, Leowen and Fontaine, went on a hunting trip but never returned.  They were found in their vehicle apparently driven by Leowen several months later in a creek off the highway.  There were no witnesses to the accident and no one knew precisely when, how, or why the accident occurred.  There was evidence of heavy rains and washouts in the area around the time the two went missing. The Supreme Court held,   

 “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 [claimant]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.”  
In the courts view  the injury claimants had  established a prima facie case of negligence and, while the driver offered an explanation of what occurred, it lacks cogent detail and was not, “sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident.”  The driver was therefore found 100% at fault for the accident. Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL.B.    
Issue: Should an injury lawyer require direct evidence if it is obvious from the circumstances that the driver is at fault?  

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