Cyclist with No Recollection of Collision has Claim Dismissed Against Unidentified Motorist

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing an injury claim against involving an unidentified motorist because the Plaintiff had, due to injuries, no recollection of the collision and no evidence to establish driver negligence.

In today’s case (Salo v. ICBC) the Plaintiff was riding his hybrid bicycle in close proximity to an SUV when something occurred and a witness “saw the bicycle and Mr. Salo in “mid-air” about ten feet behind the SUV.”.

The Plaintiff suffered a brain injury in the event and had “absolutely no recollection as to what happened“.  The SUV driver was not identified.  The witness did not see what exactly transpired to send the Plaintiff airborne.

The Plaintiff sued for damages alleging the SUV driver was negligent.  The Court dismissed the claim finding the above did not discharge the Plaintiff’s burden of proof on a balance of probabilities.  In dismissing the claim Mr. Justice MacKenzie provided the following reasons:

[39]         In this case there is no direct evidence as to what caused Mr. Salo to become airborne when the SUV was stopped at the stop sign.  Both counsel have suggested possible scenarios or explanations as to what might have happened, some more fanciful or implausible than others.  But, as the defendant asserts, absent any evidence “about the movements of the SUV before the collision”, it would be pure speculation to infer negligence on the part of the SUV driver.  In addition, whether the SUV turned right a few seconds after Mr. Cunningham observed it stopped at the intersection or a moment or two later, this, in my view, does not assist the court in determining what caused Mr. Salo to become airborne near the rear of the SUV, or in drawing an inference that the SUV driver was negligent.

[40]         Given the paucity of evidence as to what occurred on July 3, 2014 when Mr. Salo unfortunately suffered significant injuries while riding his bicycle, I agree with the defendant when it submits there are no positive proved facts from which I can infer that the unknown driver was negligent.

[41]         As a result, the action is dismissed.  Subject to any agreement between the parties, the defendant is entitled to costs on Scale B.