Legal Brief – Reverse Onus of Proof (CAN)

The Decade of Action for Road Safety began in 2011. It is a global plan conceived by the United Nations whose purpose is to “reduce the forecasted level of road fatalities by increasing activities conducted at national, regional and global levels.”

One of the five pillars of the plan is “post-crash responses,” which includes “effective legal response.” The UN wants jurisdictions around the world to create better legal systems to deal with road safety.

In many jurisdictions, cyclists and other vulnerable road users who suffer losses at the hands of negligent motorists in motor vehicle collisions are forced to prove fault. They must marshal the evidence to discharge this “onus of proof” on a balance of probabilities. The problem is that because of their injuries, cyclists often lack an accurate memory of what happened. Without a clear recollection, vulnerable road users are then put to the significant risk and expense of reconstructing the collision through experts. The cost of those post-accident investigations is borne by the cyclist, and if they cannot prove negligence they can face financial disaster.

A few bike-friendly jurisdictions have recognized the injustice to many innocent persons who lack the wherewithal to prove fault, and have reversed the onus of proof. In these jurisdictions, an example being the Netherlands, it is accepted that automobiles are dangerous, and the legal onus to disprove negligence is on the motorist and/ or its insurers.

Dr. Lionel Ireland suffered career-ending injuries in a bicycle collision on a two-lane asphalt surfaced roadway on Vancouver Island. He had no memory of events three days before and three days after the collision owing to a head injury and could only advance a theory as to what happened. He alleged that the defendant driver failed to pass him at a safe distance and that she was wholly liable for the collision. She and her passenger denied this claim, arguing that as they were passing Dr. Ireland, he turned to look to his left and steered his bike directly into the side of the car. Dr. Ireland retained an engineer to try to reconstruct the collision, but ultimately his case was dismissed because he failed to meet the ultimate onus of proof. The judge found that the physical damage to the vehicle was not inconsistent with the defendant’s version of events.

In my view any civilized system of law should require the operator of a motorized vehicle to disprove negligence after a collision with a vulnerable road user.

David Hay is a litigation lawyer and partner at Richards Buell Sutton LLP. He has a special interest in bike injury law and can be contacted at 604.661.9250 or dhay@rbs.ca.