In a case of bus driver negligence causing injury, the Court of Appeal has dismissed the appeal of ICBC and Translink, finding the circumstantial evidence adequate to infer negligence (click here for Benavides v. ICBC, 2017 BCCA 15). However, the Court of Appeal sidestepped the real underlying issue: should public carriers be under a stricter test of liability when it comes to personal injury? If so how should this test be articulated?
The famous legal maxim res ipsa loquitur ( “the thing speaks for itself”), was a law of evidence done away with by the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator),  1 S.C.R. 424. So the trial judge misarticulated the evidentiary test ( click here to read trial decision for Benavides v. Doe) but made findings of fact sufficient to support his ultimate conclusion on liability. He was found to have breached the standard of care expected of a reasonable and prudent bus driver by braking abruptly without warning his passengers and by braking suddenly in order to stop the bus at or beyond its regular stop at Fraser and 22nd Avenue in Vancouver.
Court of Appeal, without articulated the standard of care required of a bus driver, did outline some rules of evidence for bus accident cases at paragraph 17 as follows:
- The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.
- The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.
- Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.
Res ipsa loquitur in its purest form was a social policy to allow innocent victims compensation when exposed to hazards created by industry. The tide has shifted, Res ipsa loquitur is gone, and it there is a strong argument that public interest is no longer revered over profitable industry as a sociolegal policy.
The value of circumstantial evidence, however, has to be weighed against the power of a party to prove or disprove a fact and injury victims in this regard are still powerless. With industry often being in control of documents and information, the courts will be much quicker, as in this case, to infer negligence based on conduct.