In this falling asleep personal injury case (Holt v. Rother,2013 BCSC 1065) the claimant was a pedestrian on the shoulder of 350th Avenue in Oliver, British Columbia, and the defendant was driving returning from the beach in Okanagan Falls. The driver suddenly veered across the oncoming lane and struck the walking claimant causing personal injuries. The evidence showed that before the car accident the driver had been roasting in the sun all day without much water.
The driver that hit the Pedestrian denied fault claiming he suffered from an unexpected and unforeseeable medical condition which caused him to lose consciousness. He claimed to have experienced a syncopal episode or vasovagal fainting. The Judge rejected the explanations and found that the driver simply dozed off. Expert evidence was presented to support the proposition that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. In my view this expert opinion on the symptoms of drowsiness was not needed and judicial notice could have been taken of such a common human experience.
In car accident personal injury claims in British Columbia the claimant has the burden of establishing a prima facie case of negligence. Once that is done the driver being blamed for the accident must present evidence negating that of the claimant or necessarily the claimant will succeed. The defence of inevitable accident or “act of God” can only succeed upon proof on a balance of probabilities that the driving was not the product of conscious acts on the part of the defendant. Mere possibility is not sufficient.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.