Onus Of Proof In Motor Vehicle Collision With Cyclist

Generally the plaintiff in a civil action has to establish liability. That means, in a negligence claim, that the plaintiff must prove negligence.

That general rule, however, may be set aside by statute and, specifically, does not apply to automobile collisions with pedestrians or bicyclists.

Section 193(1) of the Highway Traffic Act reads as follows:

When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

Put briefly, where a motorist collides with a bicyclist or a pedestrian, on a highway or where the automobile causes injury, that motorist is presumed to be at fault and must show by a reasonable preponderance of evidence that the motorist was not at fault or negligent.

In today’s appeal decision in Senger v. Lachman, 2008 ONCA 323 the Court gave a confused direction in this regard and a new trial was ordered. The plaintiff’s fifteen year old son (Shawn) died when the bicycle he was riding collided with an automobile on a country highway near Consecon, Ontario. The respondents, Mr. Satrohan Lachman and Mrs. Parbatee Lachman are, respectively, the driver and owner of the automobile.

Part of the decision is set out below:

[10] The trial judge later read to the jury the first question that they would be called upon to answer. The question was phrased as follows:

Has the defendant, Satrohan Lachman, satisfied you that the accident was not caused by any negligence or improper conduct on his part? Answer “Yes” or “No”.

[11] After reading the question to the jury, the trial judge then repeated, in a different way, that the onus was on the respondents to satisfy the jury on the preponderance of evidence that the driver of the automobile was not negligent.

[12] Unfortunately, later in his charge, while he was explaining the standard of care that applies to a driver of a motor vehicle, the trial judge contradicted and confused his earlier explanation of the onus. In this portion of the charge, he started with the statement that the driver is “not asked to maintain a standard of perfection or to take extravagant precautions. The mere fact that an accident has happened and damage has been sustained, does not permit you to draw an inference that the accident was caused by somebody’s negligence.” Such direction represents a clear departure from the onus of proof established under s. 193(1).

[13] It is likely that the trial judge simply misspoke at this point in his charge. The instruction, however, is clearly wrong. The trial judge compounded the error when, later in his charge, he set out examples of what might constitute negligence. Specifically, he dealt with the duty on the driver of the motor vehicle under the Highway Traffic Act to sound the horn “whenever it is reasonably necessary to notify pedestrians or others, of his vehicle’s approach.” He went on to state, “[i]f you are satisfied that the failure of Mr. Lachman to sound the horn was an effective cause or a proximate cause of the accident, then you should find this omission an act of negligence.” This explanation to the jury may well have furthered the erroneous view that a specific act of negligence had to be proven by the appellant.

[14] Another portion of the charge may also have served to reinforce the incorrect impression that the onus was on the appellant to prove that Mr. Lachman was negligent. Prior to his instruction on onus of proof, the trial judge dealt with the damages claimed by Shawn’s mother and explained proximate cause to the jury. In doing so, he stated “the evidence must not only establish that the defendant, Satrohan Lachman, was negligent but also that his negligence was the proximate cause of her injuries or damages.” Again, this may well have confused the jury as to the presumption of negligence applicable in this case. How this distinction could be reconciled with his instruction concerning subsection 193(1) of the Highway Traffic Act was not explained by the trial judge when he subsequently provided the instruction on the onus of proof, thereby serving to exacerbate the jury’s confusion on this critical legal issue.

[15] Each of these problems, taken individually, may not have been sufficient to justify ordering a new trial given that, in the section dealing with the burden of proof, the trial judge had correctly instructed the jury on the Highway Traffic Act provision respecting onus, and had correctly described its impact. However, when these three portions of the charge are viewed together and the charge is read as a whole, I am not satisfied that the jury would have clearly understood that the burden of proof remained on the respondents throughout the trial, and that they (the jury) did not have to identify a specific breach of the duty of care (such as the failure to sound the horn) as the cause of the accident. It was up to the respondents to satisfy the jury that, upon the whole of the evidence, Mr. Lachman was not negligent: Bronson v. Evans and Evans, [1943] O.R. 248 at 257 ( C.A. ).