Dzah v. I.C.B.C. Date:, 2013 BCPC 29

Citation: Dzah v. I.C.B.C. Date: 20130212 2013 BCPC 0029 File No: 09-27720 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOHN YOA DZAH CLAIMANT AND: ICBC DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. F. PALMER Counsel for the Claimant: G. Trotter Counsel for the Defendant: J. Locke Place of Hearing: Vancouver , B.C. Date of Hearing: November 25, 2011 Date of Judgment: February 12, 2013 Introduction

[ 1 ] On October 17, 2008 the Claimant was driving his vehicle southbound on Windermere Street towards the intersection at East 2 nd Avenue. Windermere is governed by a stop sign at that intersection. When it was more than half-way through the intersection, Mr. Dzah’s vehicle was struck, on the passenger side, by a vehicle travelling eastbound on East 2 nd Avenue. [ 2 ] The Defendant found Mr. Dzah to be 100% liable for the collision. This action was brought seeking a de novo finding re liability in Mr. Dzah’s favor.

His claim against ICBC is for economic loss due to increased premiums. [ 3 ] The parties provided the Court with a Common Book of Documents. Counsel for the Claimant acknowledged that some of the included materials contained hearsay and stated that these matters were not provided as proof of the truth but merely for narrative purposes in case an issue with respect to an allegation of recent fabrication arose. Issues [ 4 ] The following issues must be resolved to determine whether liability in this case should be reapportioned: (

a) What standard of care did each driver have upon their approach to the inter-section of Windermere and East 2 nd Avenue? (

b) Does the evidence adduced at trial differ significantly from the information on which the Defendant based its decision on liability? (

c) Did the Defendant fairly apply the law, specifically sections 175 and 186 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318? The Evidence [ 5 ] Mr. Dzah was the only witness called in the Claimant’s case. He is an electrician by trade. On the date of the collision he was working at the Vancouver East Cultural Centre which is located on Venables at Victoria Drive. He was driving to meet a friend for lunch, following a route he had taken approximately fifteen times before. Mr. Dzah described Windermere as a single travel lane with parking on both sides of the street, controlled by stop signs at East 2 nd Avenue.

He said East 2 nd Avenue was configured in the same way. [ 6 ] Mr. Dzah testified that he was not in a hurry. While his employees are afforded only a half-hour for lunch Mr. Dzah can, as the owner of the company, take as much time as he likes. He was frequenting the same lunch spot on almost a daily basis. He testified that as he was approaching the intersection he had noted a man in a wheelchair going south through the east side of the intersection. He further testified that he checked for other traffic. When asked by his counsel when he noted the car on 2 nd Avenue Mr.

Dzah responded that it was the first car in the parking lane before the intersection. He then volunteered that he was going 10 kilometres per hour. [ 7 ] Mr. Dzah later asserted on direct examination that when he reported the accident to ICBC he told the call taker that when he was going south on Windermere for lunch he saw a man in a wheelchair on the road, that he stopped at the stop sign and as there was no traffic he then moved south with the wheelchair as the man headed south. [ 8 ] On cross-examination Mr. Dzah testified that he was stopped at the stop sign for approximately ten seconds.

When defence counsel suggested that was kind of a long time to wait Mr. Dzah responded that he was watching the man in the wheelchair and he waited because he could not tell what the man was going to do. [ 9 ] When cross-examined about where the defendant’s vehicle was when he first saw it Mr. Dzah answered that he couldn’t tell if it was two cars back from the intersection “or something like that”. When counsel put his trial brief to him Mr. Dzah agreed that he had previously stated the defendant’s vehicle was 10 to 12 feet from the intersection. [ 10 ] Mr.

Dzah denied that the vehicle was moving when he first saw it but subsequently stated that he saw some movement but he didn’t know what the driver was doing. He went on to say that he was guessing maybe the driver was on the phone. When asked if the defendant’s car was running Mr. Dzah said “I believe so”. When Mr. Dzah’s prior statement to ICBC “the car’s engine was running, suddenly she decided took off, that’s when she hit my passenger window side” was put to him he denied being able to hear the engine even though his window was open. [ 11 ] Mr.

Dzah stated that he was going through the intersection as slowly as the wheelchair because he was not sure what the man was going to do when he reached the south side of the intersection. After he called 911 Mr. Dzah called his friend for a ride. He then left the scene and walked up to East 1 st Avenue to meet his friend. When he noted the police vehicle at the scene Mr. Dzah returned and spoke with Constable Torvik. [ 12 ] During cross-examination counsel suggested to Mr.

Dzah that the reason he added the man in the wheelchair to the diagrams he created for ICBC two years after the accident was because his memory had improved over time. Mr. Dzah agreed with that suggestion. [ 13 ] The defence called two witnesses. Ms. Rodriguez and Constable Torvik, one of the officers dispatched to the scene shortly after

Mr. Dzah called 911. Mr. Sergio Piccariello, identified as the man in the wheelchair at the scene, was in hospital and unavailable to testify. [ 14 ] Ms. Rodriguez testified that she was on her way to pick up her son from school when the collision occurred. She has lived in that neighbourhood since her arrival in Canada 10 years prior to the collision. She had held a driver’s license for 8 years and the collision on October 17, 2008 was the first in which she had been involved. [ 15 ] Ms.

Rodriguez testified that she was very familiar with the area and drove the same route every day, avoiding the intersection of East 1 st and Windermere because of the high accident rate there. Ms. Rodriguez was also familiar with the intersection of East 2 nd and Windermere because her son took a course from people that live on the northwest corner of East 2 nd and Windermere. Ms. Rodriguez knew Mr. Piccariello before the date of the collision because their sons had been in the same course together. [ 16 ] Ms. Rodriguez denied being parked on East 2d Avenue immediately prior to the collision.

It was her evidence that she was travelling east on East 2 nd at approximately 40 kilometres per hour. As she was approaching the intersection with Windermere she did not observe anyone stopped at the stop signs on Windermere, she did observe that there was no oncoming traffic and that no one was following her. Ms. Rodriguez did not notice Mr. Piccariello at the intersection until after the collision. [ 17 ] Ms.

Rodriguez testified that she did not notice the Claimant’s vehicle until he was just in front of her and that she did not have time to apply the brakes before striking the vehicle between the front and back doors. [ 18 ] After the accident Ms. Rodriguez got out of her vehicle and approached the Claimant to ask if he was alright. She was much shaken and felt as though she could not control her hands and legs or stop them from shaking. She had difficulty speaking in either Spanish or English. Mr. Dzah was already on his phone calling 911. Ms.

Rodriguez used her phone to call her husband and ask him what she should do about reporting the accident. [ 19 ] The Vancouver Fire Department was the first responder to the scene. The vehicles were moved out of the intersection before the Vancouver Police Department arrived on scene. Ms. Rodriguez had sustained some injuries to her knees in the collision and was taken to hospital by ambulance. [ 20 ] On cross-examination Ms. Rodriguez agreed with counsel’s suggestion that Mr. Dzah’s vehicle was most of the way through the intersection when the collision occurred. It was subsequently suggested to Ms.

Rodriguez that she had seen Mr. Dzah’s vehicle before it reached the stop sign, in the intersection and almost at the next stop line before the collision. Ms. Rodriguez responded saying she could have seen Mr. Dzah’s vehicle as suggested if Mr. Dzah had stopped completely at the stop sign before entering the intersection. [ 21 ] Counsel questioned Ms. Rodriguez about her conversation with Mr. Dzah after the accident. It was suggested that Mr. Dzah had asked her if she was okay and Ms. Rodriguez agreed that she had responded in the affirmative. She went on to say that Mr.

Dzah had not asked her if she needed an ambulance. The transcript of the 911 call contained in the Common Book of Documents, Tab 6, page 4, line 16, was put to Ms. Rodriguez. The excerpt was “Excuse me. I’m calling 911. Are you hurt? Do you need an ambulance?”. Ms. Rodriguez did not recall that conversation. [ 22 ] Constable Torvik and her partner were dispatched to the scene approximately 20 minutes after the collision was reported. When they arrived the vehicles had already been moved. Constable Torvik spoke with Mr. Dzah at the scene. She described his demeanour as not overly anxious about the accident.

When asked by counsel for the Defendant whether Mr. Dzah had described the vehicle that collided with his as having been “parked at the side of the road and bolting into the intersection” Constable Torvik said that she did not recall such a statement and had she heard it she would have written it down. On cross-examination Constable Torvik agreed that her conversation with Mr. Dzah was more of an introduction than a detailed description. The Law [ 23 ] The parties agree that the provision of the Motor Vehicle Act , (hereafter MVA) , applicable to the determination of liability in this case is s. 175 .

Entering through highway 175(1) If a vehicle that is about to enter a through highway has stopped in compliance with

section 186 , (

a) The driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and (

b) having yielded, the driver may proceed with caution. 175(2) If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway. [ 24 ] The modifier, s. 186 of the Motor Vehicle Act , follows: 186. Stopping at intersections

Except when a peace officer directs otherwise, if there is a stop sign at an intersection, a driver of a vehicle must stop (

a) at the marked stop line, if any, (

b) before entering the marked crosswalk on the near side of the intersection, or (

c) when there is neither a marked crosswalk nor a stop line, before entering the intersection, at the point nearest the intersectinghighway from which the driver has a view of approaching traffic on the intersecting highway. [25] Counsel provided a range of cases in support of their arguments not all of which were of assistance to the Court. In theClaimant’s Brief of Authorities counsel included the following cases: Innes v. Bui, [2010] B.C.J.

No. 1269 (B.C.C.A.), (hereafter Innes),a case dealing with an appeal from a decision made in the Supreme Court where the Claimant’s case was dismissed on the basis of resjudicata, when the merits of the case had not been determined in prior litigation before the Provincial Court; Kalineiko v. InsuranceCorp. of British Columbia, [2003] B.C.J. No. 1183 (BCPC) (hereafter Kaleinko) a decision of Judge Romilly of this Court in which thecentral issue was whether the Claimant should have been held liable for an accident attributable to unsafe road conditions resulting froma prior accident; Paredes v.

Chan, 2002 BCPC 30, (hereafter Paredes), a decision of Judge Yee of this Court dealing with several issuesincluding the standard of care of a driver emerging from a parking lane into a travel lane; and Rothenbusch v. Van Boeyen, BCSC 1518,(hereafter Rothenbusch), a decision of Justice Ker dealing with numerous issues including apportionment of liability when both drivershave failed to meet the appropriate standard of care. [26] Counsel for the Defendant provided the Court with two decisions: Wisnoski v.

Kolynchuk, 2004 BCSC 1010, (hereafterWisnoski), a decision of Justice Chamberlist determining liability for a motor vehicle collision at an intersection where all four cornerswere governed by stop signs; and Twining v. Huang, 1999 CarswellBC 2159, (hereafter Twining), a decision of Justice Hood dealingwith liability for a motor vehicle accident occurring at an intersection where one vehicle was travelling on a through street and the othervehicle entered the through street after complying with a stop sign. Both cases were heard as 18A trials. The decision in Wisnoski wasbased on a consideration of

section 186 of the Motor Vehicle Act. In Twining, at paragraph 5, Justice Hood articulated the issue to bedetermined as follows. The sole issue before me is whether when the defendant’s vehicle was about to enter onto 64th Avenue, the plaintiff’s vehicle wasapproaching so closely on that Avenue that it constituted an immediate hazard. [27] Justice Hood continued with a consideration of the relevant provision of s. 175 of the MVA, being subsection (1)(a).

Theevidence Justice Hood had to consider in making his determination was far more precise than the evidence before this Court.Photographs of the intersection provided the Court significant detail with respect to the distances either of the vehicles were required totravel in safely negotiating the intersection. [28] Justice Hood’s review of the law dealing with the rights of dominant and servient drivers was of great assistance. At paragraph15 Justice Hood cited decisions of the Court of Appeal, Keen v. Stene (1964), (BC CA), 44 D.L.R. (2d) 350, and Raiev. Thorpe (1963), (BC CA), 43 W.W.R. 405.

In the following paragraphs, 16 and 17 respectively, Justice Hood set outthe considerations for determining when an approaching vehicle constitutes an immediate hazard and what must be established to supporta finding that the through, or dominant, driver was at fault for the collision. “that an approaching car is an immediate hazard if the circumstances are such as to require the driver of that car to make some sudden orviolent action to avoid the threat of a collision if the servient driver fails to yield the right of way.” “…the actual collision may be remote in time and distance, nevertheless the hazard is immediate if reasonable danger of such futurecollision may be apprehended, that is, at the time of the proposed entry.” “(1) that the servient vehicle entered the intersection in disregard of the law; (2) the through vehicle driver became aware, or should have become aware of the servient driver’s entry into the intersection in disregard of the law; and (3) that the through traffic driver had a sufficient opportunity to avoid the accident and failed to do so.

Findings [29] The facts in Twining are closest to the facts in this case. Absent evidence similar to the evidence available to Justice Hood thedetermination of the issues in this case will be resolved by assessing the reliability of the testimony of the parties. The evidence ofConstable Torvik is of assistance insofar as it establishes that the Claimant did not, upon first speaking with the officer at the scene,

mention the man in the wheelchair or his presence in the intersection at the time of the collision. [ 30 ] I did not find Mr. Dzah to be a credible witness. His assertion that his memory of the accident improved over time is self-serving and patently unreasonable. In assessing the reliability of his testimony I have considered the internal consistency of his evidence and its consistency throughout both direct and cross-examination. As well I have considered Mr. Dzah’s motive to dissemble given his history of at-fault accidents with the corporate defendant. [ 31 ] It is both unreasonable and improbable for Mr.

Dzah to claim, as he did in his evidence, that he saved the life of the man in the wheelchair when he crossed the intersection in front of Ms. Rodriguez’s oncoming vehicle. Had that been the case Mr. Dzah would not have overlooked that detail in either his diagrams or statements provided to ICBC in 2008 or 2009. [ 32 ] On the date of the collision Mr. Dzah was in the position of servient driver. The onus was on him to stop at the stop sign and assess whether it was safe to cross the intersection. On his evidence he saw the black vehicle with its engine running in the curb lane right before the intersection.

I accept the evidence of Ms. Rodriguez that she had not stopped on East 2 nd Avenue prior to approaching the intersection with Windermere. [ 33 ] I also accept the evidence of Ms. Rodriguez that she was travelling at approximately 40 kilometres per hour just prior to the collision. I do not accept the evidence of Mr. Dzah that he was travelling at only 10 kilometres per hour. I accept the evidence of Ms. Rodriguez that Mr. Dzah’s vehicle crossed in front of her vehicle so quickly that she did not have time to react evasively or hit her brakes. [ 34 ] It is far more likely that Mr.

Dzah did not stop at the stop sign assuming he could race across the intersection before the man in the wheelchair completed his transit. [ 35 ] In seeking a reapportionment of liability for the collision the onus is on the Claimant is to establish on a balance of probabilities that the dominant driver, Ms. Rodriguez, had sufficient opportunity to avoid the collision and failed to do so. Mr. Dzah has not met that onus. The theory of the Claimant that the point of impact should be determinative of fault is not persuasive.

Absent expert opinion as to rates of speed at impact the Claimant’s theory is not the only reasonable inference to be drawn. [ 36 ] On approaching the intersection Mr. Dzah was required to come to a full stop, determine whether there was a vehicle approaching which constituted an immediate hazard and to yield to such a vehicle. Ms. Rodriguez had the right of way and was entitled to travel through an intersection free of observable traffic. [ 37 ] The corporate defendant had more evidence on which to base the determination of liability than has been presented to this Court.

However, on the evidence presented and the findings I have made with respect to that evidence I find no basis to differ from that determination. Decision [36] The claim is dismissed. The Defendant is entitled to costs. _____________________ J.F. Palmer