3) Proof of Negligence: Direct and Circumstantial Evidence

Whether or not there has been a breach of the standard of care is a question of fact to be decided by a judge sitting alone or by a jury. The burden of proof is on the plaintiff to establish on the balance of probabilities that the defendant was negligent. This standard of proof is sometimes expressed as requiring a finding that there is a preponderance of the evidence in favour of the plaintiff's allegations. There may be direct evidence of negligence, as when a number of witnesses observe the failure of the defendant to stop at a red light. Sometimes, however, there is no direct evidence of how the accident occurred. In those cases, the plaintiff must rely on circumstantial evidence. Circumstantial evidence may support an inference or conclusion that the defendant was negligent.

The use of circumstantial evidence with respect of the breach of the standard of care was, traditionally, controlled by the Latin maxim res ipsa loquitur (the thing speaks for itself). Recently, however, the Supreme Court declared in Fontaine v. British Columbia (Official Administrator) [Note 51: [1998] 1 S.C.R. 424 [Fontaine].] that this Latin maxim has outgrown its usefulness and should no longer be used in negligence cases. The Court did not, however, disagree with the general process of proving negligence by circumstantial evidence that has taken place under the rubric of res ipsa loquitur for over a hundred years. Some general understanding of that process, therefore, remains useful.

Res ipsa loquitur created an inference of negligence when the accident or event that caused the damage was something that in ordinary human experience does not happen without negligence and the situation and circumstances from which the accident arose were under the sole management and control of the defendant. In the absence of direct evidence of how the accident happened, proof of these two factors created an inference that it was the negligence of the defendant that caused the loss. This circumstantial evidence was said to "speak" of the defendant's negligence and a prima facie case was made out.

Kirk v. McLaughlin Coal & Supplies Ltd. [Note 52: [1968] 1 O.R. 311 (C.A.) [Kirk].] and Clayton v. J.N.Z. Investments Ltd. [Note 53: [1969] 1 O.R. 89 (C.A.) [Clayton].] illustrate the operation of the maxim. In Kirk, the oil furnace in the plaintiff's home exploded. It had been serviced by the defendant for twelve years. Within a period of one month there was a cycle of repair work followed by an explosion, followed by further repairs and then a final explosion that gave rise to the loss that was the subject matter of the litigation. The cause of the explosion was never established. The Court applied res ipsa loquitur. Oil furnaces in houses do not normally explode unless there has been some negligence, and the furnace was under the effective control and management of the defendant since the plaintiff testified that no one else had touched it. The circumstantial evidence pointed strongly to the defendant's negligence as the probable cause of the explosion. The Court in Clayton reached an opposite conclusion. The plaintiff in that case leased an apartment in a recently completed building. A lead pipe leading to a radiator in the apartment inexplicably burst, causing water damage to the plaintiff's furnishings and fixtures. The plaintiff relied on the maxim to establish the liability of the company that had installed the pipe. The Court held that it may have been reasonable to infer that someone's negligence caused the failure of the pipe but it was not reasonable to infer the negligence of the installer. The pipe was not under his sole control and management. The occurrence could equally point to the negligence of the owner of the block, maintenance personnel, or the manufacturer of the pipe, none of whom gave evidence.

Application of the maxim did not provide conclusive proof of the defendant's negligence. It created a rebuttable inference of negligence, often described as a prima facie case of negligence. There was some judicial inconsistency in formulating the burden that rested on the defendant to rebut this inference. This was explained to some degree by the varying strength of circumstantial evidence and the strength of the inference in any given case. The dominant view was that the defendant was required to provide an explanation of how the accident happened that was consistent with due care on his part. Such an explanation neutralized the inference of negligence raised by the plaintiff's evidence. The explanation must have some evidential foundation. Mere theorizing, conjecture, or speculation of how the accident might have happened without negligence was normally insufficient. There were instances where the courts reversed the burden of proof and required the defendant to prove due care, but that approach was restricted to certain categories of cases such as those dealing with liability for defective food products, aircraft crashes, and fires. [Note 54: See Linden, above note 47 at 253-55.]

In the Fontaine case the Supreme Court reconsidered the utility and role of res ipsa loquitur. The case dealt with a single motor vehicle accident. A truck left the highway in severe weather conditions and crashed into a swollen stream. Both the driver and his passenger were killed. The family of the deceased passenger sued the driver. There was no direct evidence as to how the accident occurred. The Supreme Court held that it was no longer appropriate to resort to the maxim of res ipsa loquitur in cases of circumstantial evidence. The Court appeared to be concerned that some courts were treating the maxim as a doctrine of law involving the application of rules and principles. It sought to emphasize that the maxim merely described the process of using circumstantial evidence to establish the negligence of the defendant. To give that process a Latin description created confusion and difficulty. The Court held that the trier of fact must simply weigh the circumstantial evidence with any available direct evidence and determine if the plaintiff has established a prima facie case of negligence. Once the plaintiff has done this, the defendant must present evidence negating the inference of negligence or the plaintiff will win. On the facts, it was held in Fontaine that there was insufficient circumstantial evidence to create an inference of negligence against the driver of the vehicle.

The Fontaine decision does not appear to herald any major substantive change in negligence law and many of the old res ipsa loquitur cases will continue to be a reliable guide in the use of circumstantial evidence.

CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES

C. CAUSATION

The plaintiff must prove that the defendant's negligence caused his loss. This is known as cause-in-fact. It should not to be confused with the control device remoteness of damage, sometimes known as proximate cause, which may excuse a defendant from liability for loss caused to the plaintiff on the ground of fairness. Cause-in-fact focuses on the factual issue of the sufficiency of the connection between the defendant's wrongful act and the plaintiff's loss. It is this connection that justifies the imposition of responsibility on the negligent defendant. That is the issue canvassed here together with some related problems of multiple tortfeasors.