Proof of Negligence

Although the law of evidence specifically deals
with the various processes in which evidence is
adduced and weighed in trials, certain specific
problems of proof of evidence in tort warrant
special attention. Beyond the issue of burden of
proof generally, there are issues relating to shifts
in evidential burden of proof, the maxim res ipsa
loquitor, the rule in Cook v. Lewis and “novel”
approaches to other problems of proof.
The Burden of Proof on the Ptf
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
Generally speaking, the rule is that s/he who
alleges the existence of a fact has the burden of
proving it. In negligence law, therefore, it is the ptf
that must prove the essential elements giving rise
to a viable cause of action, that is:
The the dft owed him/her a duty of care; that the
dft’s conduct was negligent; that the ptf suffered
compsensable injury, and finally that the injury
was caused by the dft’s negligence.
Burden of Proof and Inferences


Once the ptf has made out his/her case, there is an
“evidential” burden on the dft to prove the facts
necessary to establish any of the defenses
available to him/her.
It must be noted that in determining which of the
facts adduced by either party ought to be given
probative value, the courts/jury are at liberty to
draw reasonable inferences on what ought to have
occurred.
Wakelin v. L & S Railway

Dec’sd estate sued railway company in
negligence. It was unclear whether dec’sd
ran into a train or whether the train
negligently ran into dec’sd. The HOL
reasoned that dec’sd wife could not succeed
in negligence unless she proved on a
preponderance of evidence that the dft was
negligent.
Balance of Probabilities

The rule is that the ptf must prove his/her case on
a “balance of probabilities.” This does not mean a
statistical probability of 51 per cent. All it requires
is that the evidence adduced by the ptf must be
more persuasive than that of the losing party. The
court need not be entirely devoid of doubts.
However, where the evidence of both are equally
persuasive and plausible, the party with the burden
of proof loses.
Evidential Burden

The onus of proof rests on the ptf and never
shifts. However, in the course of trial, the
evidence introduced by either party may
warrant a rebuttal or reply. This is a
dynamic process which is often
characterized as the “evidential burden.”
Note Sopinka’s warning in Snell v. Farrell.
Exceptions to the General Rule
Statutory Onus Shift in Proving Negligence
 Directly caused injury
 Multiple Negligent Defendants
 Res Ipsa Loquitor
 “Novel” Approach in Sindell v. Abbott?

Statutory Onus Shift
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There are a few cases where statutes have shifted
the onus of proof. For eg, S. 193 of the Highway
Traffic Act provides that:
Where a 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 or driver of the motor vehicle is upon the
owner or driver.
Justifying the “Onus” Section

“This section was enacted in order to overcome
difficulties experienced by ptfs in obtaining and
presenting sufficient evidence of a motorist’s
negligence to avoid a non-suit at the close of their
case. Knowledge of relevant facts and
circumstances leading up to an accident might be
in the possession only of the dft and injustice
might result if a ptf was unable to overcome the
initial obstacle of a prima facie case and to avoid
having his case determined b/4 all evidence was
b/4 the court” MacDonald v. Woodard
The Procedural Effect of “Onus”
Sections
The HOL has suggested, and quite correctly
too, that the procedural effects of “onus”
sections are:
 1. To create a rebuttable presumption of
negligence against the dft.
 2. To grant the ptf victory in instances
where the evidence of both the ptf and the
dft are EQUALLY balanced and persuasive.

Osgoode Hall Law Study of Onus
Sections

In 1965, the Osgoode Hall Law School
published its study on “Compensation for
Victims of Automobile Accidents”. The
study found that the onus section is largely
used by pedestrians who are run down. It
also found that unlike the previous regime,
54 per cent of pedestrians who sued,
recovered.
Statutory Onus Shift
Similarly, s. 10 (2) of the Parental
Responsibility Act provides that:
 In an action against a parent for damage to
property or for personal injury or death
caused by the fault or neglect of a child who
is a minor, the onus of establishing that the
parent exercised reasonable supervision and
control over the child rests with the parent.

Judicial Application of s. 10 (2)

In Shannon v. T.W and Cinnirella v. C.C., the
courts dismissed suits in negligence against
parents. In interpreting the onus section, the courts
held that the “standard of care required of parents
is that of reasonably careful people in the
circumstances. The standard is an objective one
that focuses on their conduct and its adequacy
with reference to that of a reasonable person. The
standard imposed by the Parental Responsibility
Act is one of reasonableness, not perfection.”
Directly Caused Injury

Another exception to the general rule that
the onus of proof rests on the ptf is in cases
where, arising from trespass, the injury to
the ptf is directly caused by the dft. In such
cases, the onus rests on the dft to show the
absence of both intention and negligence on
his part. This is a very anomalous and
strange exception. See Dahlberg v. Naydiuk
The Rule in Cook v. Lewis

In Cook v. Lewis, the ptf was injured by a gun shot
fired by one of the 2 defendants. Both dfts fired at
the same time and the birdshot from one of their
guns struck the ptf. The jury could not determine
which particular hunter injured the ptf. None of
the legal theories available at that time could avail
the ptf. The SC established the principle that when
a ptf is seriously disadvantaged in proving her
case, through no fault of her, the onus of
disproving negligence rests on the dft.
Res Ipsa Loquitor

This maxim allows the ptf in suits where the cause
of the accident is unknown, to discharge the
burden of proof by circumstantial evidence. The
origin of the maxim has been traced to the case of
Byrne v. Boadle: ptf was injured by a falling barrel
of flour as he was walking beside the window of a
shop owned by the dft. The ptf adduced no direct
evidence as to whose fault made the barrel of floor
to fall. The court reasoned that the fall of the
barrel was of itself evidence of negligence.
Res Ipsa loquitor
The doctrine applies in cases where”
 A. the thing that inflicted the damage is
under the sole management and control of
the dft.
 B. the occurrence is such that it would not
have happened without negligence.
 C. there must be no evidence as to how or
why the occurrence took place.

The Requirement of Control

The circumstances of the case must point to the dft
as the sole source of the injury. The element of
control need not be physical in nature. It is enough
if there is sufficient link between the dft and the
injury-producing event as to bespeak negligence
on the part of the dft. Note that the maxim does
not apply where there are more than 1 dft capable
of independently answering for the ptf’s loss.
Occurrence bespeaks negligence

The second element is that the mere
occurrence of the event should raise an
inference of negligence. Common
experience must suggest that the event
would not have occurred in the absence of
negligence. Would a house that suddenly
collapsed bespeak of negligence in the
construction? What of water-mains breaking
and flooding the neighborhood?
Unknown cause of the event

The third element is that the occurrence
which brought about the ptf’s injury must
not be susceptible to direct proof. Thus,
where there is direct evidence as to the
cause of the occurrence, the maxim would
not apply. See North York v. Kert Chem.
Indust. Inc
The Effect of Res Ipsa Loquitor

The procedural effect of a successful invocation of
the maxim is that it raises an “inference” of
negligence. It does not displace or remove the
onus of proof on the ptf. If successfully invoked
by the ptf, the dft may then adduce evidence to
show how the accident or event might have
occurred in the face of reasonable care. The
explanation must be based on evidence, not
speculation, theories, or conjecture.
Fontaine v. ICBC

The decision of the SC in Fontaine marked the
expiration of the doctrine of res ipsa loquitor in
Canadian negligence law. In the words of Major,
“whatever value res ipsa loquitor may have once
provided is gone. Various attempts to apply the socalled doctrine has been more confusing than
helpful…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 action”.
Sindell v. Abbott Lab & Ors

Ptf and others in a similar position sued the dfts
for manufacturing and selling DES. There was no
direct proof of which of the dfts had sold the
particular drug to a particular ptf. All the dfts
manufactured DES and all the ptfs had developed
malignant bladder tumor from maternal use of
DES. In modifying the “material contribution test”
the court reasoned that each of the dfts was liable
to the extent of their market share of DES.