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Who has to prove fault in a motor vehicle accident?

Victor Lewin - Monday, November 07, 2016

Typically the individual or claimant bringing forward a case for personal injuries has burden to prove that the defendant is at fault for the accident. The claimant needs to prove on a balance of probabilities (i.e. 51% chance) the defendant caused the accident. In law, this is referred to as the onus of proof.

There are exceptions to this general rule. One exception is pedestrian collisions. If you are a pedestrian hit by a motor vehicle, then the onus shifts, and the defendant operator and/or owner of the vehicle has to prove he or she was not negligent in the circumstances (i.e. did not cause the accident).

The rules covering the duties of drivers and owners of vehicles are set out in Nova Scotia’s Motor Vehicle Act. The starting point when considering any motor vehicle collision is section 100(1) of the Motor Vehicle Act, RSNS 1989, c 293. Section 100(1) of the Act imposes a duty to drive carefully and reads:

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.

Section 248 (1) of the Motor Vehicle Act is the section that addresses motor vehicle/pedestrian situations specifically and states:

Onus of proof of liability

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.

Therefore, when a pedestrian collision is involved, the defendant has to show sufficient evidence to convince a judge that he or she was either not at fault for the accident or partially not at fault. If the defendant cannot discharge this obligation through cogent evidence, the driver who hit the pedestrian will be found to be 100% at fault for the accident.

The Nova Scotia Supreme Court had the opportunity to address this reverse onus in the case of Drysdale v. Bev & Lynn Trucking Ltd., 2016 NSSC 109. In this case, the plaintiff was struck in a marked crosswalk by the defendant. In finding the defendant solely responsible for the accident, the Court accepted the evidence of witnesses that suggested the defendant was not looking forward at the time of the accident. The Court found that, given the circumstances, the defendant was unable to overcome the reverse onus and found the defendant 100% liable for the accident.

If you have any questions on the onus of proof in personal injury matters, feel free to contact one of our injury lawyers for a free consultation.


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