Leedis v. Anwar-Aharash Date:, 2011 BCPC 86

Citation: Leedis v. Anwar-Aharash Date: 20110412 2011 BCPC 0086 File No: 1032457 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOANNA LEEDIS CLAIMANT AND: SASAN ANWAR-AHARASH DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: Joanna Leedis Appearing for the Defendant: Leilani Karr Place of Hearing: Vancouver , B.C.

Date of Hearing: March 23, 2011 Date of Judgment: April 12, 2011 [ 1 ] This matter came before me on March 23, 2011 pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] This case concerns a liability arising from a motor vehicle accident that occurred at the intersection of Robson Street (“Robson”) and Burrard Street (“Burrard)”, Vancouver, BC on January 29, 2010 at approximately 6 pm. [ 3 ] The parties were sworn and each confirmed that the facts set out in their respective Trial Statements were true and accurate. [ 4 ] The Claimant was driving northbound on Burrard and was struck by the Defendant’s automobile at the rear of her automobile. [ 5 ] The issue is whether or not the Claimant failed to see the Defendant as she changed lanes and, therefore, cut off the Defendant, or if the Defendant failed to see that the Claimant was turning right at the intersection of Burrard and Robson at the time the Defendant struck the Claimant. [ 6 ] The accident took place while it was raining heavily and the parties’ vision was restricted due to the driving conditions. [ 7 ] The Claimant gave two statements to ICBC.

The first was on January 30, 2010.

[ 8 ] As the result of the investigation made by ICBC, and based upon the Claimant’s initial statement and the Defendant’s statement, the adjuster concluded that the Claimant was at fault. [ 9 ] The Claimant did not provide a second statement to ICBC for several months.

This occurred after she was advised that she was at fault by ICBC. [ 10 ] The Claimant testified that when she gave her initial statement to ICBC, she thought that the Defendant had admitted liability during a conversation they had at the accident scene, when they exchanged their names and insurance particulars. [ 11 ] Following the accident, the Claimant parked her vehicle on Burrard north of Robson, even though she was turning right to travel east on Robson.

Under cross-examination, the Claimant explained that had she continued her turn and parked on Robson, she would have blocked traffic, however, she was able to make a “partial u-turn”, which I understood to be a wide turn to the left which permitted her to travel through the intersection and park as I explained above. [ 12 ] The Defendant places great reliance on the fact that if the Claimant had been turning right from Burrard to Robson, she should have parked on Robson rather than Burrard.

The Defendant says this is inconsistent with the driving sequence described in her ICBC statement, and that the only reasonable conclusion to be drawn from the Claimant parking on Burrard was that she was not turning on to Robson, but rather had cut-off the Defendant as he stated to ICBC, which explanation was initially accepted by ICBC. [ 13 ] On July 29, 2010, the Claimant requested an assessment review from the finding of liability against her. [ 14 ] Attached as Annexure “A” to these Reasons is a copy of the review decision made by the External Arbiter, Ilona Kusic, on August 12, 2010. Not surprisingly, Ms.

Kusic considered the same issues that were raised by the Defendant at trial. She could not resolve the conflicts in the evidence and, therefore, assessed liability equally between the parties. [ 15 ] In these proceedings, the Claimant sought to recover $1,200 to repair her car, the cost of a rental vehicle, filing fees and service fees. The Defendant did not file a Counterclaim. He is seeking the determination made by Ms. Kusic, namely, that the liability be divided equally between the parties. [ 16 ] I asked Ms.

Karr that if I did not find in favour of the Claimant and dismissed the case, if that would result in the decision of Ms. Kusic being confirmed. Ms. Karr agreed that it would be the outcome if I made such a finding. [ 17 ] Nothing in the testimony and trial statements of the parties provide me with any greater certainty as to who is responsible for the accident than was already considered by Ms. Kusic. [ 18 ] I am unable to understand why the Claimant parked her car on Burrard rather than on Robson.

However, the Defendant did not lead any evidence to explain that the actions of the Claimant were other than she described regarding the accident, and that the Claimant turned her vehicle other than she described so that she could park on Burrard rather than on Robson. [ 19 ] I have my concerns about the Claimant’s description of the accident. However, I am unable to conclude that Ms. Kusic’s decision was incorrect. Although I do not consider that I am hearing an appeal from the arbiter’s decision, I must make a finding that is markedly different than the conclusion reached by Ms.

Kusic to overturn the assessment of liability that was already made in this case. [ 20 ] After considering all of the evidence, I am unable to reach a different conclusion. There were no independent witnesses. The damages to the vehicles described in Ms. Kusic’s report are not conclusive of either party’s description of the accident.

Even though the explanation of parking on Burrard after the accident seems unusual, it is not implausible that she was able to do so at a busy intersection and with poor driving conditions, as she testified. [ 21 ] I am satisfied that the Claimant believed that the Defendant admitted liability at the time of the accident, that she thought that her initial statement to I.C.B.C. was a formality, and that nothing in particular would arise from it.

Accordingly, I do not find that the Claimant changed her first statement in the second statement to describe the accident differently. [ 22 ] I accept the Claimant’s testimony that upon learning liability had not been admitted, she described the accident as best she could remember several months later. Also, I find that the delay from the initial statement to her second statement is not so significant that Ms. Leedis could not remember the details of the accident as she described them. [ 23 ] Based on the evidence of the parties, I am unable to come to a different conclusion other than the one reached by Ms.

Kusic. Accordingly, the claim is dismissed. As a result, the arbiter’s decision to apportion liability equally between the parties is not changed. _____________________ Lawrence A. Kahn