In the recently published case of Paguio v. Fraser, 2011 BCSC 1519, Mr. Justice Williams considered whether he could find that an unknown driver was the cause of a collision involving a scooter on Knight Street in Richmond. In the end result the court found that the plaintiff failed to prove on a balance of probabilities that an unknown driver was the cause of the collision.
The court found that the plaintiff’s scooter moved left from its lane of travel and came into contact with a Volkswagen. The scooter impacted the Volkswagen at the right front wheel well and tire. As a result of the collision the plaintiff sustained a serious head injury. The plaintiff alleged at trial that there was an unknown vehicle on his right that moved left, either contacting his scooter and impelling it to the left into the Volkswagen or, alternately, forcing the plaintiff to take evasive action by moving to the left to avoid being hit and colliding with the Volkswagen.
ICBC, acting on behalf of the unknown motorist, took the position that there was no other vehicle involved in the accident and alleged that the plaintiff made an unsafe move into the lane occupied by the Volkswagen causing the collision.
The plaintiff had no memory of accident and the court had to rely on the memories of a handful of witnesses to the event. In addressing the evidence, Justice Williams said:
Power to Observe Not Accurate after Accident
 This case demonstrates the proposition that when ordinary men and women are witnesses to a surprise event that exploded into the routine of an otherwise ordinary and unremarkable moment, the powers to observe, and then later recall and recount are often less than perfectly accurate. People are not video-recorders.
Justice Williams noted that there was no direct evidence of another vehicle being involved in the accident and that the plaintiff’s case turned on circumstantial evidence. With respect to the law around weighing of circumstantial evidence in a motor vehicle accident case, he noted the following principles:
 In examining these alternatives and making assessments of whether the plaintiff has met the onus of proving that it is more likely than not that the action of the driver of an unknown vehicle caused or contributed to the collision between himself and the Fraser car, it is important to recognize that the evidence bearing on the issue is circumstantial; having reached the conclusions that I have with respect to the testimony of Mr. Ingram, there is no direct evidence of such a vehicle having caused the collision. Accordingly, I must be guided by certain basic concepts that govern the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence. In Tweedie v. ICBC, 2002 BCSC 1937, Mr. Justice Wilson provided a helpful discussion of the approach that must be taken to the proof of a plaintiff’s case where it rests on a base of circumstantial evidence and provided reference to the applicable authorities.
 The principles as I understand are these:
(a) Where a case is not proved by direct evidence, the court will carefully examine and consider the relevant circumstantial evidence.
(b) Circumstantial evidence derives its effect through the process of the trier of fact drawing reasonable inferences. That is a cognitive process whereby, once certain facts are established or proven, then a logical conclusion is considered. It is the process of reasoning from a proven fact or facts to a reasonable, rational and logically legitimate conclusion.
(c) The drawing of an inference is different than mere conjecture or a guess, no matter how shrewd or plausible that guess might be.
(d) An inference, once properly drawn, must give rise to a reasonable conviction in the mind of the trier of fact that the element of which proof is necessary is at least more likely than not, or to some greater degree of certainty.
(e) The plaintiff can succeed in proving his case on the strength of a reasonable inference which gives rise to a conclusion that the element has been proven on a balance of probabilities. If the inference does not support the conclusion to that standard, then the proof is not made out.
 In the final analysis, applying these guiding principles, and having examined the evidence carefully, I have concluded that the circumstantial evidence proffered by the plaintiff does not enable me to find that the case has been proven to the necessary standard.
The plaintiff has not met the onus of proof he bears to establish his claim and it must therefore stand dismissed.
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