Thien v. Dexter et al. Date:, 2011 BCPC 69

Citation: Thien v. Dexter et al. Date: 20110322 2011 BCPC 0069 File No: 1030541 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KEVIN HON-KONG THIEN CLAIMANT AND: JEFFREY K. DEXTER, JESSICA K. DEXTER & BIROL YILMAZ DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: Kevin Hon-Kong Thien Counsel for the Defendants: Jennifer S. Frahm Appearing on behalf of Birol Yilmaz: Jennifer S. Frahm Place of Hearing: Vancouver , B.C.

Date of Hearing: February 9, 2011 Date of Judgment: March 22, 2011 [ 1 ] This matter came before me pursuant to the Simplified Trial Rules under the Small Claims Act . This dispute concerns a motor vehicle accident that occurred at the intersection of Pacific Boulevard and Cambie Street in Vancouver, British Columbia at about 9:30 p.m. on Sunday, January 17, 2010. [ 2 ] The Trial Statements of the Claimant and Defendant were admitted into evidence. The parties testified that the facts in their Trial Statements were true and accurate. [ 3 ] The Claimant reviewed his Trial Statement in detail.

A large portion of the Claimant’s evidence was argument rather than evidence about the accident. [ 4 ] A partial

summary of the Claimant’s evidence is as follows: (

a) The Claimant was travelling westbound on Pacific Boulevard (“Pacific”). (

b) The Claimant came to a complete stop at the intersection as the light was red, and only turned right after two cars had turned left

from Pacific onto Cambie Street (“Cambie”) as those cars had an advance green light. (

c) The Claimant proceeded after the intersection was clear and turned into the right-hand lane from Pacific to Cambie. (

d) The Defendant’s car turned left from Pacific (Expo Boulevard from the other direction) to Cambie and drifted into the right lane and struck him. (

e) The accident took place at a distance from the intersection, which was well after the Claimant established himself in the right lane. [ 5 ] The parties agree that the accident took place in the right lane of the two left hand turn lanes from Pacific (Expo) to Cambie. [ 6 ] Appendix 1 is a diagram made by the Claimant and formed part of his Trial Statement. I have included it in these Reasons to depict the intersection and not for the location of where the accident occurred. I have interlineated the street names for ease of reference. [ 7 ] There was an independent witness, Mr. Birol Yilmaz (“Mr.

Yilmaz”), who provided a statement to ICBC. After considering Mr. Yilmaz’s statement and the statements of the parties, the ICBC adjuster concluded that the Defendant’s version was more likely to have occurred. [ 8 ] ICBC assigned 100% fault to the Claimant. [ 9 ] The Claimant argued: (

a) that the physical damage to his car and the location of debris from his car could only be consistent with his version of the accident. (

b) that the Defendant’s statements to ICBC were inconsistent and that Ms. Dexter’s recollection of the lanes in the intersection and, more particularly, which of the two left turn lanes from which she was executing her turn was different in those statements. [ 10 ] The Defendant, Jessica K. Dexter (“Ms. Dexter”), testified: (

a) that she turned left from Pacific (Expo) to Cambie, and that the Claimant hit her vehicle in the right hand lane. (

b) that she turned from the right lane of the two left turn lanes. [ 11 ] In her statements, the Defendant said that she turned from the left of the two left turn lanes. [ 12 ] The Claimant testified that the accident occurred a fair distance from the intersection. The Defendant said that the accident took place close to the entrance of the intersection. Mr. Yilmaz testified that he could no longer be certain that his statement to ICBC that the accident took place close to the intersection was accurate. Mr.

Yilmaz said that he saw the accident from the periphery of his vision, while he and his wife were waiting to cross Cambie at the intersection of Pacific and Cambie, and therefore the accident occurred closer to the intersection than further from it. [ 13 ] During Mr. Yilmaz’s testimony, I cautioned Ms. Frahm not to lead the witness. I did so because Ms. Frahm was taken by surprise when Mr. Yilmaz qualified his statement to ICBC. As a result, I have concluded that I must give less weight to the statement made by Mr. Yilmaz to ICBC regarding the location of the accident. [ 14 ] Mr.

Thien was following a family member who was transporting personal items in another vehicle. After he exchanged insurance information with Ms. Dexter, the Claimant left the accident scene and travelled to where his family member had gone. [ 15 ] Mr. Thien testified that some of the photographs of the accident in his Trial Statement were not taken on January 17, 2010, and those that were taken on January 17, 2010 were shot several hours after the accident. [ 16 ] The parties agree that the accident occurred on a rainy night. [ 17 ] Mr.

Thien agreed in cross-examination that considerable traffic travelled through this intersection, even though it may not have been as busy as other nights because it was Sunday. [ 18 ] I have concluded that I cannot rely upon the photographs tended by the Claimant to be an accurate record of the location of the accident debris, and for proof of the location of the accident in relation to the intersection because none of the photographs were taken or the location of the debris was recorded immediately following the accident and, in particular, before Mr.

Thien left the accident scene. [ 19 ] Although the Claimant gave evidence of his theory of the accident, there was no expert evidence. I am not prepared to accept the Claimant’s theory of the accident as if it was an opinion by an expert. [ 20 ] The Defendant’s evidence does not escape my concern. I am not satisfied that Ms. Dexter’s statements to ICBC and her testimony establish that she knew which of the two left-hand turn lanes she was in when she turned onto Cambie. [ 21 ] Mr. Yilmaz did not testify about the lanes in the intersection, nor about the lane in which Ms.

Dexter’s car was travelling, even though she turned from the direction towards where he was walking. [ 22 ] Also, I have little confidence that the testimony of the Claimant about the location of the accident in relation to the intersection or the lane from which the Defendant turned is reliable. [ 23 ] I have concluded as follows:

(

a) The Claimant turned without knowing the location of Ms. Dexter’s car, if he saw it at all. (

b) Ms. Dexter drifted from the left of the two left-hand turn lanes, which is the lane she testified in which she was travelling in her original statement to ICBC into the right of the two left-hand turn lanes, which is where the accident took place. [ 24 ] Mr. Thien conceded that Ms. Dexter had the right of way because she was able to turn left using the advance green light. I am satisfied that Mr. Thien did not wait until the intersection was clear before he turned, having regard to the driving conditions and the right of way that he had to give to Ms. Dexter.

Perhaps, had he done so, there would have been no collision. [ 25 ] To the extent that Mr. Yilmaz recalls the accident, he is clear that he saw it from his periphery and that could only have been so if the accident took place closer to the intersection than Mr. Thien has testified. [ 26 ] However, as I have concluded that Ms. Dexter turned from the left of the left-hand turning lanes into the right of the left-hand turning lanes, she is also at fault. [ 27 ] Doing the best I can with the evidence, I assign liability of 65% to the Claimant, and 35% to the Defendant. [ 28 ] At the commencement of the hearing, Ms.

Frahm advised the Court that after my decision, ICBC would adjust the deductibles between the parties. If I need to make a ruling with respect to the deductibles, counsel and Mr. Thien may make further submissions in writing to the Registry directed to me. [ 29 ] Mr. Thien also claimed damages for his time to deal with ICBC. Based upon the discussions I had with the Claimant, he withdrew this claim. Also, he agreed that he had no claim against Mr. Yilmaz. There will be an order dismissing the claim against Mr. Yilmaz, which should be noted as having gone by consent. [ 30 ] Mr.

Thien has been successful, although not to the extent he claimed. He is entitled to his costs. There will be a Judgment in his favour for filing fees of $100, services fees of $140 for total of $240 and pre-judgment interest from January 17, 2010 as calculated by the Registry. [ 31 ] Ms. Frahm may provide the Registry with the correct form of Order. Mr. Thien must approve before it can be entered. ___________________ Lawrence A. Kahn