Inference of negligence applied: no evidence of VW Beetle
In the recent decision of Dorsett v. Sahib, 2018 BCSC 1884, the British Columbia Supreme Court, applied the law of “inference of negligence” to determine liability issues resulting from a motor vehicle accident. In certain cases, the court may draw an inference of negligence from all of the evidence both circumstantial and direct. If the inference is drawn and the defendant does not provide a non-negligent explanation, the plaintiff is successful. If the inference is not drawn, or if the defendant provides a non-negligent explanation, the plaintiff must prove negligence in the normal way. Where the trial judge does draw an inference of negligence, the defendant can negate the inference through the defence of explanation of how an accident may have occurred without the defendant’s negligence. The defendant does not bear the onus of proving how the accident did happen.
On April 12, 2013, William James Dale Dorsett was driving west on Marine Way in Burnaby. He was approaching the intersection of Marine Way and Byrne Road. The defendant, Nadeem Sahib, was driving east on Marine Way. He lost control of his car. It went over the median separating westbound and eastbound traffic. Mr. Sahib’s vehicle landed in Mr. Dorsett’s lane and collided with Mr. Dorsett’s vehicle. Suzanne Marie Outhwaite was travelling west on Marine Way behind Mr. Dorsett. Her vehicle collided with the right rear corner of Mr. Dorsett’s vehicle. Mr. Dorsett claims that Mr. Sahib negligently lost control of his vehicle. Mr. Sahib claims that he lost control of his vehicle trying to avoid a black VW Beetle. Mr. Sahib claims that Mr. Dorsett was negligent in colliding with Mr. Sahib’s vehicle. Both Mr. Dorsett and Mr. Sahib claim that Ms. Outhwaite did not keep a safe distance between her vehicle and Mr. Dorsett’s vehicle, and that if she had, she could have avoided colliding with Mr. Dorsett’s vehicle from behind. The claims against Mr. Sahib and Ms. Outhwaite engage the principle of whether inferences of negligence should be drawn against them which they must negate, and if so, whether they have negated the inferences.
Mr. Sahib is the plaintiff in Action No. M169979 and a defendant in Mr. Dorsett’s action, Action No. M167730. Mr. Dorsett is also a defendant in the Sahib Action. Ms. Outhwaite is a defendant in both actions and a third party in the Dorsett Action. In both actions, the plaintiffs have also sued an unidentified driver and the Insurance Corporation of British Columbia (“ICBC”) as nominal defendant for the unidentified driver, given Mr. Sahib’s claim that he lost control of his vehicle after swerving to avoid a black Volkswagen Beetle (the “black VW Beetle”). A Master of the Court ordered that these actions be tried at the same time on liability. A Judge of the Court subsequently ordered that the damages trial in the Dorsett Action be severed from liability so the trial is on liability only in both actions.
The factual disputes are mainly whether there was a vehicle which cut off Mr. Sahib and caused him to lose control of his vehicle and whether his vehicle landed on its wheels or on its side in the oncoming lane of traffic. Mr. Sahib claimed he swerved twice to avoid a black VW Beetle and lost control going over the median. Mr. Dorsett and Ms. Outhwaite’s testimony was similar. Both did not see a black VW Beetle. The only vehicle Mr. Dorsett saw in the oncoming lanes was Mr. Sahib’s vehicle. He did not see a black VW Beetle or any other vehicle in the eastbound lanes of travel other than the vehicle driven by Mr. Sahib. Ms. Outhwiate testified that she did not see a black VW Beetle travelling eastbound. The Court found that Mr. Sahib did not negate the inference of negligence through an explanation of how he may have crossed the median due to factors other than his own negligence. Mr. Sahib’s explanation requires a finding as to whether there was a black VW Beetle that swerved into Mr. Sahib’s lane of travel. Mr. Sahib changed his story and there were inconsistencies between Mr. Sahib’s statement to the police after the accident, his statement to ICBC and his evidence at trial. In the opinion of the Court, Mr. Sahib lacked credibility. The Court preferred Ms. Outhwaite and Mr. Dorsett’s evidence because their testimony is consistent with each other notwithstanding that they are opposing parties. Mr. Sahib’s evidence is not reliable given that he changed his story from the first time he told it in ways that are helpful to him. His evidence is internally inconsistent. He describes braking after the first swerve. If he did so, he would have had to increase his speed to catch up to the black VW Beetle in order to be in a position to be cut off by it a second time. Based on the evidence of Mr. Dorsett and Ms. Outhwaite, and the inconsistencies in Mr. Sahib’s recounting of the event, the Court concluded there was no black VW Beetle or any vehicle that swerved towards Mr. Sahib causing him to lose control of his vehicle.
In order to negate the inference, Mr. Sahib had to provide an adequate explanation of how the accident may have happened without his negligence. Although not a burden to disprove negligence, an adequate explanation cannot be one that is found to be based on something causing him to lose control when that something did not exist. The Court did accept that a vehicle cut Mr. Sahib off. Mr. Sahib provided no alternative reasonable explanation as to why he lost control of his vehicle. Accordingly, Mr. Sahib has not provided an explanation as to how the accident may have happened without his negligence.
As to whether Mr. Dorsett was negligent the Court accepted the evidence of Mr. Dorsett and Ms. Outhwaite that Mr. Sahib’s vehicle landed in Mr. Dorsett’s lane of travel already flipped on its side and landed instantaneously with the collision with Mr. Dorsett’s vehicle. Having found that Mr. Sahib’s vehicle was flipped as it landed, and the landing was instantaneous with the collision, the Court did not accept that Mr. Dorsett had an opportunity to avoid the collision. There can be no criticism for Mr. Dorsett keeping his eye on an erratically swerving vehicle. When it came over the median, he braked but did not have time to swerve, assuming he had a safe place to swerve to. The Court found Mr. Dorsett not negligent.
As to whether Ms. Outhwaite was negligent, the Court found that this case is not like most rear end accidents where the front vehicle has stopped normally or stops in an emergent situation but brakes and/or skids for some time before it comes to a stop, giving the trailing vehicle time to react and stop. In this case, the front vehicle, Mr. Dorsett’s vehicle, stopped in its tracks because Mr. Sahib’s vehicle landed on top of it. Ms. Outhwaite only had time to swerve. There was no time to fully stop, and no time for her to avoid the accident. There is no evidence of excessive speed. The Court accepted Ms. Outhwaite’s evidence that she braked and swerved in the split second she had after knowing the Sahib car was coming over the median. This evidence, when combined with the fact that Mr. Dorsett’s car was stopped in its tracks in front of her, does not support an inference of negligence. Ms. Outhwaite reacted as reasonably as she could to this unexpected event.
In summation, Mr. Dorsett has proven negligence against the defendant Mr. Sahib. Mr. Dorsett’s claims against ICBC, John Doe, Jane Doe and Ms. Outhwaite were dismissed. Mr. Sahib’s third party claim in the Dorsett action against Ms. Outhwaite was dismissed. Mr. Sahib’s action is dismissed.