COURT CASES on CIRCUMSTANTIAL EVIDENCE
While it is easier to prove negligence through direct evidence, it is still possible to prove negligence through circumstantial evidence. The latter occurs when, absent direct evidence, there is evidence that can lead to the reasonable conclusion that negligence occurred.
In Michel v Doe and ICBC, the Plaintiff was injured by an object that had come off a logging truck. The identity of the driver of the logging truck was never ascertained. The trial judge dismissed the Plaintiff’s claim, which was upheld by the British Columbia Court of Appeal, who discussed the law of circumstantial evidence as it pertains to injury claims.
 In the case at bar, the real question is whether a breach of that standard of care can be inferred from the evidence. In other words, can the court conclude that a prudent inspection would probably have discovered the rock and infer that such an inspection was not done?
 The defendant argues that the best factual case for the plaintiff is a finding that the rock fell off the load of logs, and then submits that there are too many questions left unanswered by the evidence to allow a finding of negligence. As mentioned above, I think that the alternative possibility of a rock falling from the frame or bunk structure might be a stronger factual case on which to argue that the standard of care was breached. I say that because in my view, applying common sense, a visual check of those parts of the exposed frame and bunk structure that could hold a rock that could be dislodged by the relatively minor forces associated with braking or rounding a curve in the highway is probably a simpler matter than checking the entire load of logs. Of course it is possible that the rock was thrown up onto a part of the truck after the start of its journey, after an initial inspection at the loading site, but that almost certainly would not have happened on the paved highway; in my view, prudence dictates that logging truck drivers should check for such occurrences, just as they should for rocks lodged between their dual tires, when moving from gravelled or dirt secondary roads to major highways.
 In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:
 The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence: Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577. That case was decided after the judgment at trial in the case at bar.
 While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified. The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence. The legal burden of proof, of course, remains on the plaintiff throughout.
 In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred. In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care. Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.
 The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.” Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection. He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection. In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.
 In the absence of evidence establishing the probable resting place of the rock, I cannot find that it probably would have been discovered by a proper inspection. I must therefore dismiss the plaintiff’s case.
 If I had found a prima facie case of negligence established, I would have granted judgment for the plaintiff, rather than refer the matter to the trial list or order cross-examination of the two motorist witnesses, which were the alternative applications of the defendant. The defendant has had ample opportunity to test the evidence of these independent witnesses. The detail of their evidence is not likely to be determinative of the issue. The only benefit to be obtained by referring the matter to the trial list might be to accommodate the evidence of an accident reconstruction expert of some kind or an exploration of practices in the logging industry by way of expert evidence. The defendant did not advocate the need for any such evidence and either party could have produced it for this summary trial if they had chosen to do so.
In Tweedie v ICBC, the Plaintiff had gone out for a jog one morning. There were no witnesses to the accident that occurred, and the Plaintiff could not remember what had happened. The fact of the matter was, however, that she woke up with serious injuries. She thought she must have been hit by a car, and sued ICBC under the hit and provisions of Section 24 of the Insurance (Vehicle) Act. The lawyer for ICBC argued that there was no proof that a car had caused the collision, and, further, that there was no proof of negligence. The Court, relying only on circumstantial evidence, awarded the Plaintiff damages, and commented on the law of circumstantial evidence in the context of an injury claim arising out of a motor vehicle accident.
 The principles are well-established for assessing liability where the evidence is circumstantial, but it is still useful to refer to them. In the decision of the Supreme Court of Canada in Montreal Tramways Company v. Leveille,  S.C.R. 456, the Court considered the claim of injury, a deformity to an unborn child alleged to have been brought about as a result of the child’s mother falling while on the tramway. At p. 466, Mr. Justice Lamont considered the issue of whether there was evidence on which the jury could reasonably find the existence of a causal relationship between the accident to the mother and the deformity of the child’s feet, and said this:
The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley,  A.C. 678 as follows:
It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon. Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.
There was undoubtedly evidence to go to the jury that the mother’s accident was caused by the fault of the Company, and the jury’s finding on that point cannot be disturbed. That such fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence. It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury. These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn. It is not sufficient that the evidence affords material for a conjecture that the child’s deformity may have been due to the consequences of the mother’s accident. It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.
At p. 469, he referred to the decision of the House of Lords in Jones v. G.W. Rly. Co. (1930), 47 T.L.R. 39, in which the Court had to consider whether there was evidence on which a jury could properly find negligence on the part of the defendant’s servants which caused or contributed to the death of a husband of the first plaintiff. He quoted from the decision of Lord MacMillan:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.
And then, on p. 474, after considering the difference in the jurisprudence in Quebec under the Civil Code and in the rest of Canada under the common law, he said:
… under either the French or English jurisprudence, the presumptions or inferences to be receivable as proof must be a deduction from established facts which produce a reasonable conviction in the mind that the allegation of which proof is required is probably true. That conviction may vary in degree between “practical certainty” and “reasonable probability”….
And at p. 475:
The question, however, is whether he instructed the jury sufficiently? In a case such as this it is, in my opinion, essential that the judge should instruct the jury that the presumption which they are entitled to admit as proof must not be a mere guess on their part, but must be a reasonable deduction from such facts as they shall find to be established by the evidence.
That is the standard which must be met here, where I am the trier of fact.
 In a decision of the British Columbia Court of Appeal, Plett v. Insurance Corporation of British Columbia 1987 CanLII 2753 (BC CA), (1987), 12 B.C.L.R. (2d) 336, under the heading “Circumstantial evidence”, at p. 341, Mr. Justice Wallace said this:
In cases such as this, in which the evidence is circumstantial, inferences of negligence cannot be drawn unless there are positive proven facts from which such inferences can be made.
In Caswell v. Powell Duffryn Associated Collieries Ltd.,  A.C. 152,  All E.R. 722 (H.L.) a case concerning an industrial accident to a workman, Lord Wright stated at pp. 169-170 what is, in my respectful opinion, the correct approach to a case which turns solely on circumstantial evidence:
My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
In the present case there are, I think, certain known facts which enable some inferences to be drawn. Beyond that point the method of inference stops and what is suggested is conjecture. It is not necessary to recapitulate the facts which have been fully stated by my noble and learned friend, Lord Atkin. I shall be content to state what I regard as proved by the method of inference, and reject what appears to be made to be a matter merely of conjecture