Car accident and other injury victims take note: the use of inferences to make findings of negligence or causation has increasingly taken centre stage in several recent decisions out of the Nova Scotia Court of Appeal. The appropriate use of inferences was highlighted in a decision released in early December, Johansson v. General Motors of Canada Ltd., 2012 NSCA 120.
A lady was injured in a car accident when, in 1998, the car she was driving suddenly swerved to the right and off the road. Tragically, she sustained a permanent brain injury.
Nothing unusual had appeared on the road. No other vehicle, person or animal was involved. She and her passengers had no idea why the car swerved to the right. She did not sue at that time.
Years later, GMC sent the Johanssons a Recall Notice for the 1997 Lumina she was driving at the time of the accident. GMC advised owners that “When trying to turn left, some drivers could experience higher resistance or, in a few cases, assist towards the right.” She and her family believed that this described the circumstances of her accident “to a T”. They hired a Nova Scotia personal injury lawyer and claimed damages against GMC, alleging that GMC was negligent in the design and manufacture of the car and that this negligence led to the defect.
A trial was held before a jury last year. After her personal injury lawyers presented all the injured victim’s evidence, GMC brought a “non suit motion” (which would strike her claim for lack of evidence). The trial judge sided with GMC and denied the claim. In other words, he did not let the jury decide the allegations of negligence. He felt that the lawyers for the plaintiff had not established sufficient evidence to possibly ground a claim of negligence.
In his non-suit ruling, the trial judge found that the lower pinion bearing on the rack and pinion mechanism was “defective”. He stated:
The unexplained nature of the accident, combined with its circumstances, and the nature of the Recall Notice, could support a finding that it is more likely than not that the accident was caused by a defective lower pinion bearing rather than any other competing explanation such as driver error; this is sufficient to satisfy the prima faciecase threshold on a nonsuit motion.
The judge granted the non-suit because, in his view, there was no evidence to establish the standard of care or GMC’s breach of the standard.
Lawyers for the injured lady appealed this ruling. On appeal, the central question was: Did the judge commit an appealable error, in his application of the principles that govern a non-suit in a negligence claim, by ruling that there was no evidence from which a properly instructed jury could infer GMC’s standard of care or GMC’s breach of a standard of care?
The Court of Appeal unanimously found that sufficient evidence had been presented which would have allowed a jury to infer that GMC was negligent. As such, they found that the trial judge had committed an error of law in not allowing the jury to make this decision. A new trial was ordered.
The Appeal Court reasoned:
…when the plaintiff’s evidence “permit[s] an inference of negligence attributable to the defendant”, the non-suit motion should be dismissed and the jury, after any evidence from the defendant, would decide whether or not that inference should be drawn.
Drawing inferences is standard fare for juries. An inference is a finding deduced or induced from a premise without direct evidence of the inferred fact. It is a factual jump on the reasoning path. The judge ensures that the span is not so broad or irrational that a reasonable jury would stumble. Otherwise the system trusts the jury’s common sense and agility to mind the gap and land softly. To resolve the non-suit motion simply because there is no direct evidence of GMC’ standard of care for rack and pinion steering assemblies, is to emasculate the jury’s function of assessing whether or not to reasonably infer the standard’s particulars from appropriate evidence.
In my respectful view, the judge mistook the process by which a jury may choose whether or not to infer “negligence” from circumstantial evidence, for “strict liability” without negligence. That was an error of law.
… it is for the jury to balance those factors and weigh the evidence related to the application of the standard of care. It is for the jury to decide whether in the circumstances of a particular case evidence of industry practice or regulatory benchmarks, on the one hand, or evidence surrounding the defect, on the other, should tip the scale. It is not for the judge to wade into the factual waters with a finding that a particular factor, such as industry practice, on which the judge has heard no evidence, will outweigh the others.
… it is clear that a plaintiff may lead evidence that the defendant failed to comply with industry practice, and that evidence may assist to establish a prima facie case. Or the defendant may lead evidence of compliance with industry practice. Either way, the evidence is to be weighed, with other evidence, by the jury at the conclusion of the trial. But evidence of industry practice does not necessarily trump other evidence and settle the negligence issue in the jury room. So it cannot be a legal prerequisite to the plaintiff’s prima facie case in mid-trial. A products liability plaintiff may establish her prima facie case with other evidence. The more common sequence is that the plaintiff leads with other evidence, and the evidence of industry practice makes its debut in the defendant’s case.
In my opinion, from that evidence, a jury reasonably could, if it wishes, infer that the low end of the standard of care governing quality control, investigation or testing for an assembler of a new vehicle does not sanction: a “defect” that impugns “safety” where “a crash could result”, because steering veers opposite to the intended direction, caused by components that are “not manufactured properly”, so bearings would suffer “failure” and fall out making them useless for their purpose, leading to “misdirected” power steering fluid, and a “wobbling” steering shaft that can “flop around” unpredictably, causing “erratic steering”.