In this ICBC hit and run personal injury case (Paguio v. Fraser, 2011 BCSC 1519) the claimant was riding his motor scooter on Knight Street in Richmond heading to his workplace in south Vancouver. The injury claimant had just purchased the scooter the morning of the accident and had not ridden a motorcycle in any meaningful way in the preceding five years.
The injury claimant says that there was an unknown vehicle on his right, and that vehicle moved left, either hitting his scooter and forcing it to the left, or alternatively, forcing the claimant to take evasive action by moving left so as to avoid being hit, and thereby causing the claimant to collide with an innocent car. The innocent driver was originally sued in the case but the claimant discontinued against them and focused on the unknown driver as the cause of the accident.
The court was not prepared to accept the evidence of witnesses with respect to the existence of the unknown hit and run vehicle and as such the court was left to rely on very weak circumstantial evidence. The case against ICBC was dismissed and court summarized the factors regarding a finding based on circumstantial evidence like this,
“[60] In examining these alternatives and making assessments of whether the plaintiff has met the onus of proving that it is more likely than not that the action of the driver of an unknown vehicle caused or contributed to the collision between himself and the Fraser car, it is important to recognize that the evidence bearing on the issue is circumstantial; having reached the conclusions that I have with respect to the testimony of Mr. Ingram, there is no direct evidence of such a vehicle having caused the collision. Accordingly, I must be guided by certain basic concepts that govern the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice Wilson provided a helpful discussion of the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence and provided reference to the applicable authorities.
[61] The principles as I understand are these:
(a) Where a case is not proved by direct evidence, the court will carefully examine and consider the relevant circumstantial evidence.
(b) Circumstantial evidence derives its effect through the process of the trier of fact drawing reasonable inferences. That is a cognitive process whereby, once certain facts are established or proven, then a logical conclusion is considered. It is the process of reasoning from a proven fact or facts to a reasonable, rational and logically legitimate conclusion.
(c) The drawing of an inference is different than mere conjecture or a guess, no matter how shrewd or plausible that guess might be.
(d) An inference, once properly drawn, must give rise to a reasonable conviction in the mind of the trier of fact that the element of which proof is necessary is at least more likely than not, or to some greater degree of certainty.
(e) The plaintiff can succeed in proving his case on the strength of a reasonable inference which gives rise to a conclusion that the element has been proven on a balance of probabilities. If the inference does not support the conclusion to that standard, then the proof is not made out.”
For a more thorough review of the law relating to hit and run in BC check out my article when ICBC losses an appeal of a hit and run case. Posted by Mr. Renn A. Holness