Case Dismissed: Prove it before you lose it
In an interesting recent court decision out of British Columbia, a cyclist was injured after coming into contact with an SUV. The cyclist unfortunately suffered very significant injuries. He was rendered unconscious on the scene and spent nearly two months in hospital recovering from his injuries.
In pursuing this claim, the cyclist had absolutely no recollection of the accident itself. Further, the SUV did not remain at the scene and was never identified. The only evidence in regard to the collision itself was from an independent witness. That witness, did not even see the accident itself but saw the cyclist behind the SUV before the accident. The witness then saw the cyclist in propelled in mid-air still about 10 feet behind the SUV. The witness went up to the cyclist to assist but the SUV left the scene.
As the Judge assessed the evidence of the witness, the Judge agreed with defence counsel that “it would be pure speculation to infer negligence on the part of the vehicle driver.” The Judge stated: “in cases where “the evidence is circumstantial, inferences of negligence cannot be drawn unless there are positive proven facts from which such inferences can be made”: Plett v. Insurance Corporation of British Columbia (1987), 12 B.C.L.R. (2d) 336 (C.A.) at para. 22.
Ultimately, the cyclist could not prove on a balance of probabilities that the SUV was negligent in its actions. The most plausible explanation was that the cyclist was actually at fault but nevertheless, there was no evidence to suggest that there was any negligence in terms of the actions of the SUV, even though it had left the scene. Accordingly the claim of the cyclist was dismissed.
A full copy of this decision, Salo v. Insurance Corporation of British Columbia, 2017 BCSC 1418, can be found here.