Sohn v. Mamedov Date:, 2012 BCPC 55

Citation: Sohn v. Mamedov Date: 20120220 2012 BCPC 0055 File No: 1033457 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DONG-UK SOHN CLAIMANT AND: KAREN MAMEDOV DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N.N. PHILLIPS Appearing on their own behalf: D. Sohn Counsel for the Defendant: M. Woodward Place of Hearing: Vancouver , B.C. Date of Hearing: January 31, 2012 Date of Judgment: February 20, 2012 Overview [ 1 ] On August 19, 2010, the claimant, Dong-Uk Sohn (hereinafter “Sohn”), was involved in an accident with the Defendant, Karen Mamedov (hereinafter “Mamedov”).

The Insurance Corporation of British Columbia (hereinafter “ICBC”) held both drivers equally responsible for the accident. The Claimant brought an action in the Small Claims Court questioning ICBC’s apportionment of blame and seeking related financial relief. This is the decision of the Court following a trial held in this matter. The Evidence at Trial [ 2 ] The Claimant testified the accident in question happened at the intersection of Hall Avenue and Kingsway Boulevard in Burnaby.

Sohn told the Court he is now 79 years of age and at around 7:40 am on the day in question he was heading to a restaurant in the area for breakfast. Sohn testified he was southbound on Hall and had come to a full stop for a red light at the intersection. He said traffic was heavy on Kingsway so he sat for four or five seconds with his right turn signal on waiting for the light to turn green.

Sohn said he was in the portion of the road nearest to the curb waiting when the vehicle driven by Mamedov came up on his left side and sideswiped his car. [ 3 ] Sohn described Hall Avenue at the point of the accident as wide enough to accommodate four cars but not having lane markings in the area.

Photos filed at trial show Hall ends at the intersection with Kingsway and that the intersection has a pedestrian crossing and a white signal stop line for southbound traffic to stop for the light at Kingsway. [ 4 ] In cross-examination Sohn did not agree with the suggestion that his car got to the intersection after Mamedov’s vehicle. He also

did not agree that he had attempted to squeeze past Mamedov’s waiting vehicle on the inside lane because he expected Mamedov to turn left and thereby caused the accident himself. [ 5 ] Sohn told the Court that following the collision he tried to get out of his car but was unable to open his door as it was blocked by Mamedov’s vehicle. After Mamedov moved his vehicle a short distance, Sohn said he got out and asked Mamedov for his driver’s license and insurance papers but Mamedov gave him only his driver’s license. Sohn said he then asked the Defendant for a pen and paper and Mamedov gave him those items.

Sohn told the Court that before he wrote anything down, Mamedov told him that he would like Sohn to take his car to a body shop he knew but Sohn said he wanted to report the accident to ICBC. [ 6 ] Sohn testified he wrote a brief statement for Mamedov to sign wherein Mamedov admitted to be at fault for the accident. Before he finished writing the statement Mamedov told him he had to leave right away and thus Sohn asked him to sign the incomplete statement. A copy of that document was filed with the court. The note states: I, the undersigned bumped my car to Mr. Sohn’s car at intersection of Kingsway and Hall. Mr.

Sohn’s car was in the … [ 7 ] A signature or initial appears immediately after what appears to be an incomplete word. Sohn told the Court Mamedov signed the note, retrieved his driver’s license and left. Sohn testified that while at the scene Mamedov repeated three or four times the comment about Sohn taking his car to a body shop place Mamedov knew of. [ 8 ] Sohn told the court the damage to his vehicle consisted of a scratch from above the front left tire forward on the left side along with a crack to the left headlight plastic cover.

An ICBC “estimate” relating to Sohn’s vehicle indicates damage in the left front bumper area, including to the driver’s door, door handle and to the mirror. The estimate report indicates damage to the headlight requiring wet sanding and polishing to repair with a labour estimate of 0.7 hours. The document indicates the repairs were estimated to cost a total of $1,275.12. Poor quality black and white photos of both vehicles were tendered by the defence. The photos of Sohn’s vehicle show what appears to be scraping over the left front wheel/bumper area.

A photo of the front left quarter showing the left headlamp was of poor quality and no damage to the lamp cover can be seen in the photo. [ 9 ] Sohn testified he has not yet had his 2010 Kia Rio repaired. Sohn claimed $1000 for “auto residual value decrease” in his Notice of Claim and said he did so in case the value of his car has been diminished as a result of the damage sustained in the accident. Sohn also claimed $900 for his an increase in his insurance premium and deductible.

The evidence established that Sohn has renewed his insurance twice since the accident but his premium has not increased. [ 10 ] Finally, Sohn testified that in December 2010 he was having problems sleeping due to the stress associated with the accident and sought compensation for the cost he has incurred to obtain and fill prescriptions for sleeping pills as a result of the accident. [ 11 ] Mamedov testified he had immigrated to Canada from Russia in 2008.

He told the Court that when the accident happened his English speaking abilities were not as good as what they were at the time of the trial (enabling him to testify in English without the assistance of an interpreter). Although Mamedov’s English was quite good, he struggled to understand questions put to him in both direct and cross-examination. Sohn, a native Korean speaker, also had some difficulty with questions put to him in court.

Although I was satisfied that the Court could ensure a fair hearing without adjourning for Russian or Korean interpreters to be engaged by the parties, it was not an ideal situation. The Court appreciates that given the relatively minor nature of the monetary amount claimed, the cost of having interpreters in court would be prohibitive. [ 12 ] Mamedov testified he had turned left onto Hall Avenue from a short distance back on the same block after he left the driveway of a McDonald’s restaurant.

He said the light at Kingsway had just turned red for traffic in his direction so he stopped his car close to the right hand curb exactly on the broad white painted stop line. In reference to the photographs placed in evidence, Mamedov said his car was standing in about the middle of the stop line, in other words neither on the far right nearest to the curb, nor on the far left closest to the centre of Hall. Mamedov testified his right turn signal light was on as he waited for the light to change.

Mamedov agreed that if a car had wanted to turn left beside him it would have been partially standing outside the white stop line and agreed there is only room for two cars on the stop line. [ 13 ] Mamedov testified that as he waited for the light to turn green Sohn’s vehicle sideswiped his car when Sohn “came to my right side and he continued to drive in the bike lane”. He said Sohn’s car drove about a meter and after stopping Sohn tried to open his door hitting Mamedov’s car as he did so.

Mamedov testified Sohn’s car was too close to enable Sohn to get out so Mamedov moved his car and both men then got out. [ 14 ] Mamedov testified that Sohn was angry and he did not see the point talking to him as a result. He said they exchanged information at the scene, although he later agreed he only wrote down Sohn’s license plate number and make of vehicle. He said he knew this was all he needed to make a claim. [ 15 ] Mamedov agreed he gave Sohn his notebook and a pen and that Sohn wrote something down and asked him to sign it.

Mamedov said he was anxious to carry on with his drive to work and that he did not want to sign what it was Sohn had written. He said he only did so when Sohn forcibly took his wrist and made him affix a signature of sorts to the paper. Mamedov then tore out the sheet of paper from his notebook and gave the sheet to Sohn. Mamedov denied at any time having admitted fault for the accident to Sohn. [ 16 ] Mamedov agreed he had told Sohn about a body shop where his car could be repaired but denied he did so because he knew he was at fault for the accident.

He testified he could see that Sohn was very stressed and he said not to worry and told him who could repair his car. Mamedov denied admitting to Sohn he was at fault for the accident and said he told Sohn at the scene that it was Sohn himself who had caused the accident by pulling up on his right when Mamedov was already at the stop line waiting to turn right. [ 17 ] Fortunately, the damage to Mamedov’s vehicle was also fairly minimal with an estimate of $1,000 for repairs. The ICBC estimate report indicates the damage was to the front right area of the vehicle including to the bumper and headlamp.

The estimate also

details damage to Mamedov’s passenger side door and handle, along with damage to the right mirror. The ICBC estimators whoprepared the estimates for the two cars did not testify nor did either party call expert testimony about the mechanics of the accident.

The Position of the Parties [18] Sohn made only the briefest of closing remarks but clearly wanted the Court to rule in his favour by finding that Mamedov’sconduct after the accident, in telling Sohn to go to a body shop and leaving the scene so quickly, to be consistent with Mamedov beingresponsible for the accident. [19] Mamedov, who had the benefit of experienced counsel acting on his behalf at trial, submitted that his version of how the accidenthappened was more consistent with the preponderance of the evidence than the Claimant’s.

Defence counsel submitted that the damageto the front left headlight of Sohn’s car could only have happened if Mamedov’s version of the accident was the accurate one, althoughneither Sohn nor Mamedov was asked how headlight damage to both cars occurred. Finally, it was submitted that the ‘statement’ Sohnwrote and had Mamedov sign at the scene was coerced and not an acknowledgement of responsibility for the accident. The Law [20] The following provisions of the Motor Vehicle Act, R.S.B.C. 1996 c.318 are relevant to this case. Passing on right 158

(1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except (

a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn, ...

(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right (

a) when the movement cannot be made safely, or (

b) by driving the vehicle off the roadway. Passing on left 159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can doso in safety. Turning at intersections 165

(1) If the driver of a vehicle intends to turn it to the right at an intersection, the driver must cause it to approach the intersection andthen make the turn as close as practicable to the right hand curb or edge of the roadway. … [21]

Section 1 of The Negligence Act, R.S.B.C. c. 333 deals with apportionment of liability for damages:

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss isin proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault,the liability must be apportioned equally. ... [22] In Bradshaw v. Stenner [2010] BCSC 1398, Justice Dillon was called upon to consider how to assess credibility in a civil claim. Justice Dillon stated (@ paragraphs 186 and 187): Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v.

Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452,50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidenceharmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and thedemeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, (BC CA),[1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole

and shown to be in existence at the time (Farnya at para. 356). It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a 'stand alone' basis, followed by ananalysis of whether the witness' story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimonyshould be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party,disinterested witnesses may provide a reliable yardstick for comparison.

Finally, the court should determine which version of events isthe most consistent with the "preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions" (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB KB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. Analysis [23] The parties gave evidence of two very different means by which this sideswipe accident happened. The Claimant told the Courthe was waiting for the light to turn green when Mamedov drove up on his left side and hit his car. For his part, the Defendant told theCourt his car was the first to arrive at the intersection and that it was Sohn who sideswiped him when Sohn tried to pull in beside him onhis right.

The damage to the two cars is consistent with a sideswipe collision. The fact that Sohn was unable to open his door to get outuntil Mamedov moved his vehicle is also consistent with a sideswipe action. [24] The facts in this case are such that either the Claimant or the Defendant caused the accident and I do not see how the Court couldfind both drivers contributed to the accident.

Defence counsel submitted that the damage to the front left headlight of Sohn’s car couldonly have happened if Mamedov’s version of the accident was the accurate one, although neither driver was asked how the headlightdamage on both cars occurred nor was expert evidence tendered to support such a conclusion. [25] It was submitted on Mamedov’s behalf that Sohn failed to cross-examine Mamedov sufficiently on his version of the accident. Ido not agree that cross-examination was insufficient.

Mamedov was asked a number of questions about the placement of the cars at thestop line when the accident occurred and simply maintained he was at the light before Sohn and that Sohn’s car squeezed in beside his.Cross-examination of both parties in this case was somewhat curtailed due to second language difficulties for both men. [26] I found the evidence of Sohn to be candid and internally consistent.

Despite cross-examination of the Claimant on point, Sohnmaintained he was waiting in the right turn lane when Mamedov drove up and sideswiped his vehicle. [27] Examining the Defendant’s evidence, Mamedov testified he too was waiting for the light to change so he could turn on toKingsway when Sohn sideswiped him. However, Mamedov acknowledged that his car was not positioned on the roadway in the area itwas required to be in order to make a right turn; namely in a position on the road nearest to the curb.

On his own evidence, it wasapparent that Mamedov’s car was neither positioned on the road to turn right nor left. Mamedov was obligated by section 165(1) of theMotor Vehicle Act not to turn his vehicle to the right unless he caused his car to approach the intersection as closely as practicable to theright hand curb or the edge of the roadway. Mamedov’s failure to confine his car to the proper lane of travel was without explanation. [28] According to Sohn’s testimony, after the drivers got out of their vehicles, Mamedov quickly offered that he knew of a body shopwhere Sohn could take his vehicle to.

Although Mamedov testified he made the offer out of concern for the fact Sohn seemed stressed,his conduct at the scene suggests that was unlikely something he would have been motivated by. Mamedov quickly did what he neededto at the scene of the accident and then hurried off to work. He told the Court he thought Sohn was angry and that Sohn used pressure toget him to affix his signature to the note Sohn wrote at the scene. Mamedov is a fit young man and I did not find it believable that hewould be at all afraid of the diminutive Claimant or that Sohn would have been able to overcome Mamedov physically.

These things arenot consistent with Mamedov offering the information about the body shop due to his concern about Sohn being stressed. I findMamedov’s repeated references to the auto body shop to be consistent with Mamedov immediately appreciating that he alone caused theaccident and wanting, not unreasonably, to take care of the minimal damage without involving the insurance company. [29] Although I appreciate that Mamedov had limited English language skills when the accident occurred, I do not find he misspokenor did he fail to appreciate the significance of his words when he made mention of the auto body shop.

That he did so immediately afterthe accident in my opinion is consistent with Mamedov knowing he was responsible for the sideswipe accident. [30] The handwritten note filed with the Court by Sohn is significant. Mamedov testified he only signed the note when Sohn grabbedhis wrist and insisted he do so before he left the scene. I find it unlikely that the elderly Claimant would have in any way managed to usephysical force to pressure Mamedov to sign the note if Mamedov had really not wanted to do so. Although the note is brief andincomplete, Mamedov did sign it acknowledging his car bumped Sohn’s vehicle.

This is some evidence the Court can take intoconsideration in determining which version of the event is the more likely one. [31] The burden of proof at this trial was on the Claimant on a balance of probabilities. I find that the Mamedov’s referral to the autobody shop to affect the repairs; the written admission of bumping the Claimant’s vehicle; and the failure to place his vehicle close to thecurb as he readied to turn right, tip the evidentiary burden in Sohn’s favour.

I find Sohn met the onus on him at trial of showing thatMamedov failed to pay attention as he drove to the intersection and sideswiped Sohn’s car. I find Mamedov fully responsible for theaccident. [32] Turning to the additional relief sought by Sohn, although he claimed for an increase to his insurance premium he expected hewould be charged as a result of ICBC holding him partially at fault for the accident, his premium apparently did not increase.

Therefore,this aspect of the claim must be dismissed. [33] Sohn also claimed for the decrease in the value of his car due to the damages sustained in the accident, but he called no evidenceto establish there would be any depreciation if the repairs were properly made. His claim for such loss cannot succeed due to the fact noevidence was put before the Court to establish this aspect of the claim.

[ 34 ] Finally, Sohn made a claim for the mental stress caused by the accident. Although the evidence established that in December 2010 Sohn’s doctor prescribed sleeping pills to deal with the stress related to the accident, I find that the stress was mostly as a result of ICBC partially blaming Sohn for the accident and Sohn’s need to go to court to resolve the matter.

Moreover, I find that the law requires that a claimant to prove more than a psychological upset or disturbance and that there must be proof of a recognizable psychiatric illness in order to succeed in a claim in negligence for nervous shock (per Justice Truscott in Ulmer v. Weidmann [2011] B.C.J. No. 158 (@ paragraph 99). Although I accept that this entire affair has been upsetting and distressing to Sohn, the law does not recognize “mental states that fall short of a recognizable psychiatric illness”. Accordingly, the Claimant cannot succeed in his claim for “mental stress compensation”.

Result [ 35 ] In conclusion, I find the Defendant caused the accident in question by pulling too close to Sohn’s waiting vehicle and that the damages sustained were all caused by the sideswiping motion of Mamedov’s car. I declare Mamedov to be 100% responsible for the accident in question. [ 36 ] The Claimant having been successful at trial, he is entitled to his Small Claims filing fee of $100; service fees of $60; and $30 for postage and other miscellaneous disbursements. Sohn is also entitled to the $50 fee he paid for the ICBC Claims Assessment Review.

The Defendant will be obligated to pay these expenses to the Claimant by no later than March 31, 2012. _______________________ N. N. Phillips Provincial Court Judge