Although the burden of proof often plays a prominent role in
criminal jurisprudence, it is not often remarked on in personal
injury cases. It is no less important to remember, however, that
the burden of establishing the case on a balance of probabilities,
is on the plaintiff. A recent decision of the British Columbia
Supreme Court, Andraws v. Anslow, 2014 BCSC 2080, is a
prime example of the importance of a plaintiff establishing his or
her damages on a balance of probabilities where a motor vehicle
accident has occurred.
In Andraws the plaintiff, Ms. Andraws, claimed she was
injured in a minor motor vehicle accident (the
"Collision"). The Collision occurred when the defendant,
Mr. Anslow, rear-ended the vehicle Ms. Andraws was driving, at a
very low speed while both parties' vehicles were in line to
leave the Guilford Mall. The total cost to fix the bumper of Ms.
Andraws vehicle was $100.
Ms. Andraws claimed she suffered soft tissue injuries and
headaches. She requested an award for damages of $65,049 –
$115,049, with $40,000-$60,000 of this amount representing
non-pecuniary damages. The Defendant admitted fault for the
Collision, but argued Ms. Andraws had not suffered any injuries as
a result of the Collision.
The court considered the medical evidence submitted by Ms.
Andraws' family physician and her kinesiologist. Ms.
Andraws' family physician gave evidence that Ms. Andraws was
partially disabled for a year after the Collision and was unable to
perform her duties as a hairdresser because it required the use of
her upper and lower back muscles. Based on Ms. Andraws' answers
to questionnaires, Ms. Andraws' kinesiologist testified that
Ms. Andraws' disability at the time was "severe".
The court then reiterated the principles that apply to a civil
claim. Namely, the court outlined that a plaintiff must prove her
injuries on a balance of probabilities and quoted the following
passage from the Supreme Court of Canada in F.H. v.
McDougall, 2008 SCC 53:
If a legal rule requires a fact to be proved (a "fact in
issue"), a judge or jury must decide whether or not it
happened. There is no room for a finding that it might have
happened. The law operates a binary system in which the only values
are zero and one. The fact either happened or it did not. If the
tribunal is left in doubt, the doubt is resolved by a rule that one
party or the other carries the burden of proof. If the party who
bears the burden of proof fails to discharge it, a value of zero is
returned and the fact is treated as not having happened. If he does
discharge it, a value of one is returned and the fact is treated as
The court found in this case that Ms. Andraws had not met the
standard of proof in establishing that her injuries were caused by
the Collision. Although the court noted that injuries could arise
where there was minimal damage to the vehicles involved in an
accident, it also considered authority that the severity of a motor
vehicle accident is relevant to whether a plaintiff suffered the
injuries as alleged. The court found the Defendant's
description of the Collision was consistent with the
"cosmetic" damage to each vehicle and the overall traffic
configuration at the time the Collision occurred. The court found
that Ms. Andraws had overstated the severity of the Collision.
Ultimately, the court found that the Plaintiff had not proven her
claim for damages on a balance of probabilities and dismissed the
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