Zadeh v. Abby Date:, 2012 BCPC 222

Citation: Zadeh v. Abby Date: 20120703 2012 BCPC 0222 File No: 1136321 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MEDHI GHAFAR ZADEH CLAIMANT AND: DAVID ABBY DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: M. Zadeh Appearing for the Defendant: S. Leung

Place of Hearing: Vancouver , B.C. Date of Hearing: June 6, 2012 Date of Judgment: July 3, 2012 [ 1 ] This matter came before me on June 6, 2012 pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] The issue to be determined is whether or not the Claimant is liable for an accident which occurred on March 10, 2010 on Maple Street, between 3 rd and 4 th Avenue, Vancouver, B.C. [ 3 ] A few preliminary matters are as follows: (

a) At the time of the accident, the Defendant, David Abby (“Mr. Abby”), was known as David Hartley. His name was legally changed. (

b) One of the witnesses, Sandra Raath (“Ms. Raath”), also had her name changed, as at the time of the accident, her surname was Argatoff. (

c) The Claimant and the Defendant filed Trial Statements. (

d) For the Claimant’s part, his daughter, Shahrzad Ghafar Zadeh (“Ms. Zadeh”), gave evidence and prepared the Trial Statement. (

e) The Defendant’s Trial Statement was prepared by his counsel, Ms. S. Leung. [ 4 ] Mr. Abby worked at Las Margaritas, a restaurant on West 4 th Avenue (“4 th ”) and Maple Street (“Maple”), Vancouver, B.C. He drove his motorcycle to work and parked it on the eastside of Maple between 3 rd and 4 th Avenue, just north of an extended curve/green space area, which was identified at Tab 1, page 1 of the Defendant’s Trial Statement.

The same area can be observed from different angles in the subsequent 2 pages of the Trial Statement. [ 5 ] While at work, the Defendant’s motorcycle was struck by a vehicle. [ 6 ] According to Ms. Raath, as she and her friend were walking west on 3 rd Avenue and turning south on Maple, she noticed a white car manoeuvring backwards and forwards in front of the green space that I described above. Upon walking south on Maple, she noticed that a motorcycle had been knocked over. [ 7 ] Ms.

Raath did not observe neither the license plate, nor the make or model of the car, which she believed struck the motorcycle. [ 8 ] Ms. Raath’s friend ran north on Maple Street as a white car was driving away. According to Ms. Raath, her friend saw the license plate number. From that information, Ms. Raath left a note on the motorcycle with her contact information and the license plate number that her friend had provided to her. [ 9 ] Ms.

Raath’s friend, who had provided her with the license plate number, was out of the country and could not testify. [ 10 ] During a break at work, the Defendant noticed that his motorcycle was not standing. He went to where it had been parked, and retrieved the note left by Ms. Raath. The Defendant contacted Ms. Raath to confirm the information in the note, and then he contacted ICBC. [ 11 ] Several weeks later, ICBC identified the Claimant’s vehicle as the vehicle which may have caused the accident. [ 12 ] Ms. Raath provided a witness statement to ICBC. During her testimony, Ms.

Raath explained what had occurred, all of which is contained in the witness statement. [ 13 ] On April 13, 2010, the Claimant attended at an ICBC claim centre and provided a statement in which he denied liability. [ 14 ] On April 13, 2010, the Claimant’s vehicle was examined. [ 15 ] Cameron Gee (“Mr. Gee”) testified that he and his supervisor formed the opinion that the Claimant’s vehicle struck the Defendant’s motorcycle. Mr. Gee has 12 years experience as an estimator.

His investigation was thorough. [ 16 ] The photographs which were referred to in evidence are found in the Defendant’s Trial Statement, Tab 7, page 7, particularly at the bottom of that page. [ 17 ] Mr. Gee explained that the area on the rear bumper which had black marks appeared to be a match to the Defendant’s motorcycle. [ 18 ] Mr. Gee was cross-examined by Ms. Zadeh, who assisted her father. She challenged Mr. Gee’s ability to determine how the motorcycle was parked, and why there was no damage to the fender. Mr. Gee agreed with Ms.

Zadeh that an actual match up of the motorcycle to the car would have been preferable. [ 19 ] Ms. Zadeh testified that either she, or her father, requested that ICBC carry out a match of the motorcycle to the car, i.e. having both vehicles inspected at the same time. However, ICBC declined to do so.

[ 20 ] Ms. Zadeh challenged Mr. Gee’s evidence regarding the location of the tire marks because Mr. Gee could not have known how the motorcycle was parked in relation to the white car, nor the angle in which the white car struck the motorcycle. [ 21 ] There was no evidence about intervening events between the date of the accident, namely, March 10, 2010, to the day the inspection. Also, there was no evidence to explain whether or not the approximate 5 weeks between the accident and the inspection could have had any effect on the markings on the white car. [ 22 ] Ms.

Raath’s evidence regarding the license plate number is hearsay and not admissible. [ 23 ] Ms. Leung argued that it would be an incredible coincidence for the friend to have written down the license plate number of another white car which had black marks on it. Even so, Ms. Zadeh noted there are many white cars driven in Vancouver. [ 24 ] The Claimant did not testify. [ 25 ] Ms.

Zadeh testified that she and her sister, Shiva Ghafar Zadeh (“Shiva Zadeh”), were at Sciue Restaurant in the Yaletown area of Vancouver on March 10, 2012. [ 26 ] Shiva Zadeh testified that she was with her sister for an early dinner. [ 27 ] Neither Ms. Zadeh, nor Shiva Zadeh, could recall the exact time of their dinner, nor did the Visa statement, Document #2 to the Claimant’s Trial Statement, provide a time for the charge at the restaurant. [ 28 ] I found Ms. Zadeh and her sister to be credible. Frankly, all of the witnesses are credible. However, Ms.

Raath never saw the white vehicle strike the motorcycle, nor could she identify the car as it drove away. [ 29 ] I have concluded on a balance of probabilities that the Claimant’s vehicle did not cause the accident considering all of the evidence, including the following: (

a) Ms. Raath’s friend did not testify. Therefore, the license plate number, which is the critical piece of evidence is hearsay and cannot be admitted into evidence. (

b) The tire transfer (if that is the correct term) is minimal. I do not accept that the transfer establishes that the Claimant’s vehicle struck the Defendant’s motorcycle. (

c) ICBC did not provide a reason why it refused the match up inspection requested by the Claimant. In my opinion, ICBC should have ensured that their opinion was correct, and to the extent that was possible from a match up, ICBC should have done so. (

d) Ms. Zadeh and her sister were credible witnesses. They testified that they were at a different area of Vancouver at the time of the accident. [ 30 ] Therefore, as explained to me by Ms. Leung, ICBC must do the following: (

a) Reimburse the Claimant for any excess premiums that were assessed as a result of the finding of liability. Apparently, this is the only financial penalty incurred by the Claimant as a result of the erroneous finding of liability. (

b) Do whatever is necessary, which I understood will be by agreement, to expunge any responsibility for the accident from the Claimant’s insurance records. (

c) Pay to the Claimant the costs for filing fees of $100 and service fees of $30 for a total of $130. _____________________ Lawrence A. Kahn Adjudicator