2012 BCPC 297, 2012 BCPC 297

Citation: Crombie v. Lam, Huynh & ICBC Date: 20120821 2012 BCPC 0297 File No: 1239485 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DIANE CROMBIE CLAIMANT AND: THI D LAM, VAN L HUYNH & ICBC DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DARRELL W. ROBERTS Appearing for the Claimant: J.A. Pankiw-Petty Appearing for the Defendants: Sunjeet S. Deol

Place of Hearing: Vancouver , B.C.

Date of Hearing: August 8, 2012 Date of Judgment: August 21, 2012 [ 1 ] The Claimant has brought an action against the three Defendants by way of a Notice of Claim filed in the Small Claims Court of Vancouver seeking an award of damages for the cost to repair her motor vehicle, the repair being damage to the rear door on the driver’s side of her vehicle that was struck by the Defendants’ motor vehicle on the 24 th of October 2011. [ 2 ] At the outset of the hearing on August 8, 2012, both counsel informed me that the issue in the case for the Court to decide was not the quantum of damages as claimed but the issue of liability, i.e. whether or not the Defendant driver Thi D Lam was negligent in the operation of her motor vehicle that brought it into contact with the Claimant’s passenger door.

While the discursive language in the

section “What Happened” in the Notice of Claim does not use the word “negligence” it is clear the claim is based upon negligence law and seeks to fix liability in negligence on the Defendant driver, Ms. Lam, and thereby overcome an assessment by an ICBC appointment assessor which found the Claimant 100% at fault. [ 3 ] This Court has monetary jurisdiction for the claim and its decision making is unaffected by the internal ICBC adjuster assessment of fault.

Indeed the website of ICBC has a window for appealing fault which states: If after a Claims Assessment Review you’re still not satisfied, you can dispute the fault assessment in small claims court. If a judge makes a decision in your favour and changes a fault decision, we will adjust your fault assessment to match the ruling. [ 4 ] Further in the Trial Statement filed by the Claimant in this case, the Claims Assessment Review by ICBC in question is included and on the last page after setting out the assessing officer’s decision to find Ms.

Crombie 100% responsible for the collision it is stated: If either of these parties to this accident to do not agree or are dissatisfied with this decision and assessment of liability, they are at liberty to proceed with a civil court action asking the court to determine the liability of each party, if any, for the crash. Mal Finlayson 16 December 2011 External Arbitor Date [ 5 ] There are two decisions of the BC Court of Appeal which have considered Small Claims Court actions brought essentially for the purpose of overcoming the assessment of an ICBC Claims Adjuster. They are Innes v.

Bui 2010 BCCA 322 , and Singh v. McHatten 2012 BCCA 286 . [ 6 ] The Claimant testified that the striking of her rear door by the Defendant vehicle occurred as she was strapping her two year old daughter into a child’s car seat in the rear passenger seat with her car that was parallel parked in front of her house at 739 East 31 st Avenue, Vancouver. She testified that she was taking her children, her 7 year old son and her daughter, to swimming classes.

She said her son had climbed into the rear seat on the passenger side of the vehicle. [ 7 ] She then looked to the left and right and saw no cars and went around to the driver’s side, opened the door to its first position being half way open, and began strapping her two year old daughter into the car seat. She was adamant that she did not push the car door all the way open. While strapping her daughter into the child car seat she heard a “whooshing” noise and then a bang as the car door behind her was struck. [ 8 ] She then ran after the car yelling for the driver to stop and pull over which the driver did.

She testified that the other driver, the Defendant Ms. Lam, got out of her car, and the Claimant said to her “you have struck my car”. In reply the Defendant Ms. Lam said she did not know what happened, hugged her, and said she was sorry. Information was exchanged and both parties then went on their way. [ 9 ] The damage to the Claimant’s rear door is shown in a number of photographs filed with the Trial Statement and in Exhibit 1, the Plaintiff’s Trial Brief, at Tab 3A, pages 8-13.

The outer edge of the door is peeled back to the handle and apparently the door would not open from the inside. [ 10 ] At the time of the accident the Claimant’s mother, Mrs. E. Crombie, was across the street. She testified that she heard a noise and saw the open car door against her daughter’s back, her daughter, the Claimant in the act of strapping in her grandchild into the child’s car seat. [ 11 ] For the Defendants, the Defendant Ms. Lam testified with the assistance of an accredited court interpreter with respect to translations of English into the Vietnamese language and vice versa .

Her evidence was that when she passed the Claimant’s vehicle she heard a bang but otherwise did not know what happened. [ 12 ] In her voluntary statement provided to ICBC which formed part of the Trial Statement the Defendant said that when she heard the bang she stopped approximately two car lengths away from the other vehicle. She says that she did not see any open doors but that a female from the other vehicle came over and told her that she had hit her vehicle, a gray Volkswagon with licence plate No. 857 VBG.

Her statement further says that before she heard the bang she did not hear any horn sounded, was driving at a very low speed, and stopped right after she heard the sound of the impact. Her statement also says she did not see any lights on the vehicle.

[13] In the Claims Assessment by the ICBC officer, inexplicably the information provided by the Claimant is completely rejectedbecause there was no independent evidence to verify it. For the sake of completeness the assessment of the ICBC officer is set outbelow. Argument

Section 203 of the Motor Vehicle Act reads as follows: “203(1) A person must not open the door of a motor vehicle on the sideavailable to moving traffic unless and until it is reasonably safe to do so.

(2) A person must not leave a door open on the side of avehicle available to moving traffic for longer than is necessary to load or unload passengers.” I think it is conceivable that Ms. Crombie was standing with the left rear door partially open while Ms. Lam’s vehicle approached, butthere is no independent evidence to verify this. I think it is also conceivable that as Ms. Lam approached, someone in the Crombievehicle opened the door or someone standing by the open door, inadvertently opened it further. Again however, there are no independentwitnesses to verify such evidence.

What I have been provide with are excellent photos of the damage to both vehicles. In particular, thedamage to Ms. Lam’s vehicle is most instructive. Although the damage on the Lam vehicle starts very close to the right front corner, itdoes not commence at the most frontal extremity but rather, starts just behind the right headlight. If Ms. Lam had driven into a stationaryopen door, this damage would have included the right front headlight. Instead, the damage starts just behind the right front headlight andis indicative that the Crombie door was opened into the side of the moving Lam vehicle.

Therefore, I find that this mishap occurred as aresult of the Crombie door being opened into overtaking traffic, in violation of

Section 203 of the Motor Vehicle Act as cited above. Decision: I find and assess the responsibility of Ms. Crombie, for the collision, at 100%. [14] With respect to the assessing officer’s reference to

Section 203 of the Motor Vehicle Act, there is no evidence in the materialsupplied to the officer, nor before me, that the rear passenger door was opened into moving traffic. Likewise, there is no evidence thatthe rear passenger door was left open longer than necessary to load the Claimant’s two year old daughter into the vehicle and buckle herinto the child’s car seat. Indeed, on the evidence the Claimant was in the very act of loading the child into the vehicle when the reardoor was struck by the Defendant. [15] There is therefore no evidence to support the assessment officer’s reliance on

Section 203 of the Motor Vehicle Act. [16] With respect to the location of the damage to the Defendant Lam vehicle, the fact that the damage does not commence at the“most frontal extremity but rather, starts just behind the right headlight”, while possibly relevant is hardly determinative. Thephotographs of the Defendant vehicle, as shown in Exhibit 1, Tab 3D, show the front end of the vehicle to be somewhat rounded off fromthe side of the vehicle and the damage to that vehicle is shown as a crease in the right fender just behind the headlight extending backright to the edge of the right passenger door.

The edge of that door sticks out slightly from the side of the car and appears to have beenthe contact point for the peeling back of the outer edge of door on the Claimant’s vehicle. [17] It was acknowledged by both counsel before me that the Defendant vehicle did strike the Claimant’s vehicle, and I attach nosignificance to the fact that the damage to the Defendant’s vehicle does not involve the right front headlight. [18] In the result, I find that there is no support whatsoever in the evidence for the conclusion by the ICBC assessment officer thatthe “mishap occurred as a result of the Crombie door being opened into the overtaking traffic, in violation of

Section 203 of the MotorVehicle Act…”. Moreover, this conclusion completely ignores the oral testimony of the parties which is something this Court cannot do. [19] As stated in Tough v. ICBC and Gannon, 2010 BCPC 307 at para. 14: “The Court must assess the testimony of the litigants as it relates to the applicable legislation”. [20] In this case, I accept the testimony of the Claimant that she was in the act of strapping her daughter into a child’s car seat at thetime the accident occurred. Her evidence is supported by the evidence of her mother. There is no evidence contrary and I therefore holdthat there is no evidence that the Claimant violated either of the subsections of

Section 203 of the Motor Vehicle Act or any other sectionof that Act. [21] On the other hand, it is clear the Defendant Lam struck the open door of the Claimant’s vehicle while parked at the curb. Undoubtedly, and I so find, the Defendant Lam failed to see the open door and failed therefore to direct her vehicle so as to avoidcolliding with it. For these failures in her driving she failed to take the appropriate level of care is therefore liable in negligence for thecollision and damage that occurred. [22] I have considered the question of whether any contributory negligence should be found against the Claimant and have decided

that there is none. While it can be dangerous to load a passenger into the driver’s side of the vehicle, especially in busy traffic, there is no evidence that the street where the Claimant lived is such a busy street nor that it took any more time than is necessary to load her child into the car seat.

I therefore do not find any contributory negligence on the part of the Claimant. [ 23 ] In the result, I find that the Defendant Lam is solely liable in negligence to the Claimant for the collision and the damage to the Claimant’s vehicle. [ 24 ] Since I am not asked to assess damages I restrict any monetary award to the Claimant’s filing fees of $156 and service fees of $50 for a total of $206. ______________________ Darrell W. Roberts, Q.C. Adjudicator