Fontaine v. British Columbia (Official Administrator),  1 S.C.R. 424
Beth Naomi Fontaine Appellant
Insurance Corporation of British Columbia Respondent
Indexed as: Fontaine v. British Columbia (Official Administrator)
File No.: 25381.
Hearing and judgment: November 14, 1997.
Reasons delivered: March 19, 1998.
Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Torts ‑‑ Negligence ‑‑ Res ipsa loquitur ‑‑ Circumstantial evidence ‑‑ Precise time, date and place of motor vehicle accident unknown ‑‑ Severe weather and bad road conditions at presumed time of accident ‑‑ Whether or not res ipsa loquitur applicable, and if so, effect of applying it.
Appellant claimed damages with respect to the death of her husband who was found several weeks after his expected return from a hunting trip. His body and that of his hunting companion (which was still buckled in the driver’s seat) were in the companion’s badly damaged truck which had been washed along a flood swollen creek flowing alongside a mountain highway. No one saw the accident and no one knew precisely when it occurred. A great deal of rain had fallen in the vicinity of the accident the weekend of their hunting trip and three highways in the area were closed because of weather-related road conditions. The trial judge found that negligence had not been proven against the driver and dismissed the appellant’s case. An appeal to the Court of Appeal was dismissed. At issue here was when res ipsa loquitur applies and the effect of invoking it.
Held: The appeal should be dismissed.
Since various attempts to apply res ipsa loquitur have been more confusing than helpful, the law is better served if the maxim is treated as expired and no longer a separate component in negligence actions. Its use had been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. The circumstantial evidence that the maxim attempted to deal with is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. If such a case is established, the plaintiff will succeed unless the defendant presents evidence negating that of the plaintiff.
The circumstantial evidence here did not discharge the plaintiff’s onus. Many of the circumstances of the accident, including the date, time and precise location, were not known. There were minimal, if any, evidentiary foundations from which any inference of negligence could be drawn. Although severe weather conditions impose a higher standard of care on drivers to take increased precautions, human experience confirms that severe weather conditions are more likely to produce situations where accidents occur and vehicles leave the roadway regardless of the degree of care taken. In these circumstances, it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence. Any inference of negligence which might be drawn in these circumstances would be modest. Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn. The trial judge’s finding that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on the driver’s part was not unreasonable and should not be interfered with on appeal.
Referred to: National Trust Co. v. Wong Aviation Ltd.,  S.C.R. 481; Gauthier & Co. v. The King,  S.C.R. 143; Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 E.R. 665; Jackson v. Millar,  1 S.C.R. 225; Hellenius v. Lees,  S.C.R. 165; Toneguzzo‑Norvell (Guardian ad litem of) v. Burnaby Hospital,  1 S.C.R. 114.
Statutes and Regulations Cited
Family Compensation Act, R.S.B.C. 1979, c. 120.
Balkin, Rosalie P., and J. L. R. Davis. Law of Torts, 2nd ed. Sydney: Butterworths, 1996.
Clerk, John Frederic, and William Harry Barber Lindsell. Clerk & Lindsell on Torts, 13th ed. Common Law Library No. 3. London: Sweet & Maxwell, 1969.
Klar, Lewis N. Tort Law, 2nd ed. Scarborough, Ont.: Carswell, 1996.
Linden, Allen M. Canadian Tort Law, 5th ed. Toronto: Butterworths, 1993.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Stanton, K. M. The Modern Law of Tort. London: Sweet & Maxwell, 1994.
Wright, Cecil A. “Res Ipsa Loquitur”, in Special Lectures of the Law Society of Upper Canada (1955), Evidence. Toronto: Richard de Boo, 1979, 103.
APPEAL from a judgment of the British Columbia Court of Appeal (1996), 22 B.C.L.R. (3d) 371, 74 B.C.A.C. 241, 121 W.A.C. 241, 18 M.V.R. (3d) 1,  9 W.W.R. 305,  B.C.J. No. 845 (QL), dismissing an appeal from a judgment of Boyd J.,  B.C.J. No. 716 (QL). Appeal dismissed.
Robert A. Easton, for the appellant.
Patrick G. Foy and A. M. Gunn, for the respondent.
The judgment of the Court was delivered by
1 Major J. -- This appeal provides another opportunity to consider the so-called maxim of res ipsa loquitur. What is it? When does it arise? And what effect does its application have? This appeal centres on these questions. At the conclusion of the hearing, the appeal was dismissed with reasons to follow. These are the reasons.
2 The appellant claimed damages under the Family Compensation Act, R.S.B.C. 1979, c. 120, as amended, with respect to the death of her husband, Edwin Andrew Fontaine.
3 On November 9, 1990, Edwin Andrew Fontaine (“Fontaine”) and Larry John Loewen (“Loewen”) left Surrey, B.C. for a weekend hunting trip. They were expected back on November 12, 1990, and were reported missing later that day. Their bodies were found on January 24, 1991 in Loewen’s badly damaged truck (“the vehicle”), which was lying in the Nicolum Creek bed adjacent to Highway 3 (approximately seven kilometres east of Hope, B.C.). There were no witnesses to the accident, and no one knows precisely when or how the accident happened.
4 The weather was bad on the weekend the men went missing. Between 10 p.m. on November 8 and 10 p.m. on November 10, 1990, the area in and around the Hope weather station received approximately 328 mm. of rain. Three highways lead out of Hope. Highway 1 was cut off by a major landslide, Highway 3 was closed owing to the washout of a large culvert from under the highway, and two bridges on Highway 5 were closed because of heavy river flooding and potential damage to the bridges’ understructures.
5 Police investigators concluded that, at the time of the accident, the vehicle had been travelling westbound on Highway 3 and left the roadway at a point approximately 10 metres east of the entrance to a rest area. The vehicle then tumbled down a rock-covered embankment into the swollen flood waters of Nicolum Creek and was swept downstream. The vehicle left the road with sufficient momentum to break a path through some small alder trees. Loewen was found, with his seatbelt in place, in the driver’s seat.
6 A police constable testified that, at the presumed time of the accident, Nicolum Creek was in flood condition with the water within two-thirds of a metre of the edge of Highway 3 at the likely site of the accident. The wind was gusting to “extremely high velocities” and a rainstorm was raging.
7 The constable also testified that there is a swale in the highway at the point where the vehicle is believed to have left the road. With heavy rains, between 12.5 and 38 mm. of rain may collect in the swale. In the constable’s opinion, if the driver continued to drive straight at this point, loss of control would be unlikely. However, if the driver were to suddenly turn the vehicle’s wheels in an attempt to avoid the pool of water or engage in any other sudden driving manoeuvres, the vehicle might hydroplane, particularly if the vehicle had worn tires. The police report indicated that the two front tires of the vehicle showed “excessive” wear, with only 4 and 5 mm. of tread on the tires. The constable further testified that the sidewall of the right front tire was cut and the rim was damaged, consistent with the tire hitting a rock or other solid object on the road surface. He considered it difficult to say whether or not a flat tire might have caused the vehicle to go out of control and leave the roadway. He further agreed that the driver might have swerved to avoid hitting an animal on the road surface.
8 The trial judge found that negligence had not been proven and dismissed the case. A majority of the Court of Appeal dismissed the appeal.
II. Judicial History
Supreme Court of British Columbia,  B.C.J. No. 716 (QL) (Boyd J.)
9 The trial judge held that the appellant had not proven, on a balance of probabilities, that driver negligence contributed to the fatal injuries suffered by Fontaine. She found the only evidence that potentially suggested negligence was that the vehicle left the road at sufficient speed to break a path through some small alder trees and wind up in the creek. However, in her view, given the road and weather conditions this evidence was no more than neutral and did not point to negligence on Loewen’s part.
10 She rejected the appellant’s contention that the fact that the vehicle left the highway was prima facie evidence of the driver’s negligence. The trial judge also found that even if it were, the respondent had succeeded in producing several explanations for the accident that were equally consistent with no negligence. The onus remained on the plaintiff to prove negligence, on a balance of probabilities. Boyd J. held that the burden of proof had not been met and she dismissed the action.
British Columbia Court of Appeal (1996), 22 B.C.L.R. (3d) 371
(1) Gibbs J.A. (Proudfoot J.A. concurring)
11 Gibbs J.A. for the majority stated at p. 376 that “nothing in or about the vehicle, or in respect of the bodies inside, or elsewhere, points to negligence by the driver. It is, of course, possible to speculate but speculation does not discharge the burden of proof on a plaintiff.” He then distinguished this case from the numerous authorities referred to by the appellant, finding that in every one of those judgments there were proven facts from which inferences pointing to negligence could be drawn, whereas there were none here.
12 Gibbs J.A. found that, as in National Trust Co. v. Wong Aviation Ltd.,  S.C.R. 481, the trial judge held that there were explanations as consistent with no negligence as with negligence. The consequence of this finding was that res ipsa loquitur did not apply, the appellant was left with the burden of proof, and that burden not having been discharged, the case failed. In addition, he considered res ipsa loquitur was not available because the circumstances did not fall within the accepted definition of res ipsa loquitur, as the road and weather conditions at the relevant times were such that the accident could not be said to have happened “in the ordinary course of things” (p. 379).
13 Gibbs J.A. noted that the trial judge appeared to have given little weight to the evidence on excessive wear of the front tires. He found that she did not err in that assessment. He agreed with the trial judge that the plaintiff had failed to prove negligence and dismissed the appeal.
(2) McEachern C.J., dissenting
14 McEachern C.J. held that the trial judge should have considered the plaintiff’s negligence argument in light of cases where circumstantial evidence was key, having regard to the standards of proof established in Gauthier & Co. v. The King,  S.C.R. 143. The Chief Justice found that a car leaving the roadway in the circumstances of this case was some evidence of negligence. In his view, the storm and its consequences did not assist the defendants, given that if the storm made driving hazardous, the driver was aware of the risk and should have taken greater care. Also, the worn condition of the front tires, for which Loewen was responsible, increased the risk when driving in a storm.
15 Absent an alternative explanation, McEachern C.J. concluded that it was probable the vehicle left the road because of the driver’s negligence. He further observed that there was no evidence that this accident was caused by any of the agencies suggested by the trial judge. He said the authorities are clear that possible causes for which there is no evidence cannot be relied upon and concluded that the appeal be allowed with or without recourse to res ipsa loquitur.
16 1. When does res ipsa loquitur apply?
2. What is the effect of invoking res ipsa loquitur?
A. When does res ipsa loquitur apply?
17 Res ipsa loquitur, or “the thing speaks for itself”, has been referred to in negligence cases for more than a century. In Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 E.R. 665, at p. 596 and p. 667, respectively, Erle C.J. defined what has since become known as res ipsa loquitur in the following terms:
There must be reasonable evidence of negligence.
But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
18 These factual elements have since been recast (see Clerk & Lindsell on Torts (13th ed. 1969), at para. 967, quoted with approval in Jackson v. Millar,  1 S.C.R. 225, at p. 235, and Hellenius v. Lees,  S.C.R. 165, at p. 172):
The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.
19 For res ipsa loquitur to arise, the circumstances of the occurrence must permit an inference of negligence attributable to the defendant. The strength or weakness of that inference will depend on the factual circumstances of the case. As described in Canadian Tort Law (5th ed. 1993), by Allen M. Linden, at p. 233, “[t]here are situations where the facts merely whisper negligence, but there are other circumstances where they shout it aloud.”
20 As the application of res ipsa loquitur is highly dependent upon the circumstances proved in evidence, it is not possible to identify in advance the types of situations in which res ipsa loquitur will arise. The application of res ipsa loquitur in previous decisions may provide some guidance as to when an inference of negligence may be drawn, but it does not serve to establish definitive categories of when res ipsa loquitur will apply. It has been held on numerous occasions that evidence of a vehicle leaving the roadway gives rise to an inference of negligence. Whether that will be so in any given case, however, can only be determined after considering the relevant circumstances of the particular case.
21 Where there is direct evidence available as to how an accident occurred, the case must be decided on that evidence alone. K. M. Stanton in The Modern Law of Tort (1994), stated at p. 76:
Res ipsa loquitur only operates to provide evidence of negligence in the absence of an explanation of the cause of the accident. If the facts are known, the inference is impermissible and it is the task of the court to review the facts and to decide whether they amount to the plaintiff having satisfied the burden of proof which is upon him.
See also R. P. Balkin and J. L. R. Davis, Law of Torts (2nd ed. 1996), at p. 289; Lewis Klar in Tort Law (2nd ed. 1996), at p. 421.
22 Finally, the phrase “in the ordinary course of things” in the passage quoted from St. Katherine Docks, supra, has been the source of some confusion. It has been suggested that the circumstances themselves must be ordinary in order for res ipsa loquitur to apply. That is not necessarily true. The question that must be asked is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur in the absence of negligence. Granted, some circumstances may be so extraordinary or unusual that it cannot be said with any degree of certainty what would ordinarily happen in those circumstances. In such cases, res ipsa loquitur will not apply. In other cases, expert evidence may be presented to assist the trier of fact in understanding what would ordinarily occur in a given set of circumstances.
B. Effect of the application of res ipsa loquitur
23 As in any negligence case, the plaintiff bears the burden of proving on a balance of probabilities that negligence on the part of the defendant caused the plaintiff’s injuries. The invocation of res ipsa loquitur does not shift the burden of proof to the defendant. Rather, the effect of the application of res ipsa loquitur is as described in The Law of Evidence in Canada (1992), by John Sopinka, Sidney N. Lederman and Alan W. Bryant, at p. 81:
Res ipsa loquitur, correctly understood, means that circumstantial evidence constitutes reasonable evidence of negligence. Accordingly, the plaintiff is able to overcome a motion for a non-suit and the trial judge is required to instruct the jury on the issue of negligence. The jury may, but need not, find negligence: a permissible fact inference. If, at the conclusion of the case, it would be equally reasonable to infer negligence or no negligence, the plaintiff will lose since he or she bears the legal burden on this issue. Under this construction, the maxim is superfluous. It can be treated simply as a case of circumstantial evidence.
24 Should the trier of fact choose to draw an inference of negligence from the circumstances, that will be a factor in the plaintiff’s favour. Whether that will be sufficient for the plaintiff to succeed will depend on the strength of the inference drawn and any explanation offered by the defendant to negate that inference. If the defendant produces a reasonable explanation that is as consistent with no negligence as the res ipsa loquitur inference is with negligence, this will effectively neutralize the inference of negligence and the plaintiff’s case must fail. Thus, the strength of the explanation that the defendant must provide will vary in accordance with the strength of the inference sought to be drawn by the plaintiff.
25 The procedural effect of res ipsa loquitur was lucidly described by Cecil A. Wright in “Res Ipsa Loquitur” (Special Lectures of the Law Society of Upper Canada (1955), Evidence, pp. 103-36), and more recently summarized by Klar in Tort Law, supra, at pp. 423-24:
If the plaintiff has no direct or positive evidence which can explain the occurrence and prove that the defendant was negligent, appropriate circumstantial evidence, as defined by the maxim res ipsa loquitur, may be introduced. Should the defendant, at this stage of the proceeding, move for a nonsuit, on the basis that the plaintiff’s evidence has not even made out a prima facie case for it to answer, the practical effect of the maxim will come into play. The court will be required to judge whether a reasonable trier of fact could, from the evidence introduced, find an inference of the defendant’s negligence. That is, could a reasonable jury find that on these facts the maxim res ipsa loquitur applies? If it could so find, the motion for a nonsuit must be dismissed. If such an inference could not reasonably be made, the motion must be granted. In other words, the maxim, at the least, will get the plaintiff past a nonsuit.
This, however, does not end the matter. What, if anything, must the defendant do at this point? In theory, where the case is being tried by a judge and jury, the defendant still need not do anything. Although the judge has decided that as a matter of law it would not be an error for the trier of fact to find for the plaintiff on the basis of the circumstantial evidence which has been introduced, it is still up to the jury to decide whether it has been sufficiently persuaded by such evidence. In other words, the judge has decided that as a matter of law, the maxim can apply. Whether as a question of fact it does, is up to the jury. The jury may decide, therefore, that even despite the defendant’s failure to call evidence, the circumstantial evidence ought not to be given sufficient weight to discharge the plaintiff’s onus. Thus, even if a defendant has decided not to introduce evidence, a trial judge should not, in an action tried by judge and jury, either take the case from the jury and enter judgment for the plaintiff, or direct the jury to return a verdict in favour of the plaintiff. It is up to the trial judge to determine whether the maxim can apply, but up to the jury to decide whether it does apply.
26 Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.
27 It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.
C. Application to this case
28 In this appeal, the trial judge had to consider whether there was direct evidence from which the cause of the accident could be determined, or, failing that, whether there was circumstantial evidence from which it could be inferred that the accident was caused by negligence attributable to Loewen.
29 The trial judge found that the only potential evidence of negligence on Loewen’s part concerned the fact that the vehicle left the roadway and was travelling with sufficient momentum to break a path through some small trees. She concluded that, when taken together with other evidence concerning the road and weather conditions, this was no more than neutral evidence and did not point to any negligence on Loewen’s part. That conclusion was not unreasonable in light of the evidence, which at most established that the vehicle was moving in a forward direction at the time of the accident, with no indication that it was travelling at an excessive rate of speed.
30 There was some evidence about “excessive wear” on the front tires of the vehicle. In commenting upon this evidence, Gibbs J.A. for the majority of the Court of Appeal stated at p. 379:
The fact was stated thus in an accident investigation report: “The front tires showed excessive wear with only 4 mm. LF and 5 mm. RF tread depth”. The author of the report was not called as a witness. The evidence does not disclose whether the witness who was asked about the effect of “excessive” wear had himself measured the tires as well as observing the wear. There was no evidence of where on the tires the measurement was taken or of whether the wear was uniform over the tires. Perhaps most importantly, there was no evidence of what the tread depth of an unworn tire of that make and style would be, whatever the make and style was. So there was no standard against which to measure the 4 and 5 mm., and no way for the court to attach an objective meaning to the observer’s subjective description of “excessive” wear.
In light of these deficiencies in the evidence, I agree with Gibbs J.A. that the trial judge did not err when she apparently treated this evidence as of negligible value.
31 There are a number of reasons why the circumstantial evidence in this case does not discharge the plaintiff’s onus. Many of the circumstances of the accident, including the date, time and precise location, are not known. Although this case has proceeded on the basis that the accident likely occurred during the weekend of November 9, 1990, that is only an assumption. There are minimal if any evidentiary foundations from which any inference of negligence could be drawn.
32 As well, there was evidence before the trial judge that a severe wind and rainstorm was raging at the presumed time of the accident. While it is true that such weather conditions impose a higher standard of care on drivers to take increased precautions, human experience confirms that severe weather conditions are more likely to produce situations where accidents occur and vehicles leave the roadway regardless of the degree of care taken. In these circumstances, it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence.
33 If an inference of negligence might be drawn in these circumstances, it would be modest. The trial judge found that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on Loewen’s part. Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn. The trial judge’s finding was not unreasonable and should not be interfered with on appeal.
34 The finding of facts and the drawing of evidentiary conclusions from those facts is the province of the trial judge, and an appellate court must not interfere with a trial judge’s conclusions on matters of fact unless there is palpable or overriding error: see Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital,  1 S.C.R. 114, at p. 121 per McLachlin J. There is no indication that the trial judge committed a palpable or overriding error here.
35 The appellant submitted that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single-vehicle accident. This bald proposition ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstances of each case: see Gauthier & Co., supra, at p. 150. The position advanced by the appellant would virtually subject the defendant to strict liability in cases such as the present one.
36 The trial judge did not err in concluding based on either the direct or circumstantial evidence or both that the plaintiff failed to establish on a balance of probabilities that the accident occurred as a result of negligence attributable to Loewen. The appeal is therefore dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Swinton & Company, Vancouver.
Solicitors for the respondent: Ladner Downs, Vancouver.