Generally, in a civil action the burden of proving negligence falls on the party advancing the claim. This party is often the plaintiff, the one suing the defendant in negligence, or the defendant if they are claiming contributory negligence (the extent to which the plaintiff was injured due to their own negligent conduct). All claims of negligence must be proven on a balance of probabilities. This means proving that there is more than a 50% chance that what is being claimed in the lawsuit actually occurred. When a plaintiff sues a defendant in negligence it is typically the plaintiff’s responsibility to prove on a balance of probabilities that their injuries were caused by the defendant’s negligence. However, there are some legislative provisions relevant to establishing fault in personal injury cases when the injury is a result of the from a vehicle-pedestrian collision.
Drivers Have Statutory Duty to Drive Carefully
Section 100(1) of the Motor Vehicle Act creates a statutory duty of careful driving. This is a positive general duty imposed on drivers to drive carefully.
100 (1) Every person driving or operating a motor vehicle on a highway or any place ordinarily accessible to the public shall drive or operate the same in a careful and prudent manner having regard to all the circumstances.
If a court finds that a defendant driver is in breach of this provision of the Motor Vehicle Act, the court will inevitably find that they have fallen below the reasonable standard of care (the minimum level of care one must exercise in order not be negligent). In other words, breaching this provision means that a driver was not driving in a careful or prudent manner.
Reverse Onus on Defendant Drivers
Usually, if a plaintiff is alleging negligence in a civil action it is the plaintiff’s responsibility to prove that the defendant was negligent, and the onus of proof would be on the plaintiff. However, Nova Scotian legislation creates a legal presumption that if a pedestrian is injured because of a motor vehicle the driver of the motor vehicle is at fault. This means the general onus of proof that would otherwise exist in a civil case is reversed. The onus will then fall on the defendant to show that they were not negligent. This reverse onus was originally contained under section 248(1) of the Motor Vehicle Act.
248(1) Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of a motor vehicle upon a highway, the onus of proof:
a) That such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent;
b) That such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the operator of the motor vehicle, shall be upon the owner or operator of the motor vehicle.
The application of this provision is explained in Drysdale v Bev & Lynn Trucking Limited., 2016 NSSC 109. This was a case involving a plaintiff who had been hit in a marked cross-walk by a defendant driver. The defendant objected to the plaintiff’s motion for summary judgment on the issue of liability (when a case or aspect of a case is decided without proceeding to trial because there are no genuine issues of fact or law to be determined at trial).
The Nova Scotia Supreme Court upheld that section 248(1) of the Motor Vehicle Act created a reverse onus in where the defendant driver is presumed to be solely at fault for the accident, unless they raised evidence to either fully or partially rebut that presumption. The court found that there was no evidence that the plaintiff had been at all negligent to rebut the presumption created by this provision; therefore, the defendant driver was found to be entirely liable for the accident (Drysdale v Bev & Lynn Trucking Limited., 2016 NSSC 109 paras 25-27).
This reverse onus was formerly contained in section 248(1) of the Motor Vehicle Act. In 2011 the Nova Scotian Legislature repealed this provision of the Motor Vehicle Act, and amended the Insurance Act (see Clause 12) to contain this provision. This reverse onus provision is now contained in section 148C(2) of the Insurance Act.
148C(2) Where a person sustains loss or damage by reason of a motor vehicle on a highway, the onus of proof in any civil action that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or the employee or agent of the owner acting in the course of that person’s employment or of the driver of the motor vehicle is on that owner or driver.
However, in cases in where the injury or accident took place prior to the legislative amendment of the Insurance Act the applicable law is still section 248(1) of the Motor Vehicle Act. The onus on defendant drivers to rebut the presumption that they were negligent still exists, it is just now contained in the Insurance Act instead of the Motor Vehicle Act.
If the defendant driver successfully rebuts or partially rebuts this presumption, then the court can look to whether the plaintiff pedestrian was contributorily negligent or the primary cause of the accident.
Questions about a accident claim?
Contact Jeff Mitchell for a free case review. Call toll-free: 1-855-670-1345 or 902-702-3452. Prefer to email? [email protected]
This is a guest post by Sara Gillett, Schulich School of Law