Kett v. Insurance Corporation of BC Date:, 2014 BCPC 173

Citation: Kett v. Insurance Corporation of BC Date: 20140731 2014 BCPC 0173 File No: 1239935 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ISAAC JOSHUA KETT CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Claimant: Jo McFetridge Counsel for the Defendant: Dan Barber Place of Hearing: Vancouver , B.C. Dates of Hearing: February 13 & June 9, 2014

Date of Judgment: July 31, 2014 INTRODUCTION [ 1 ] The claimant Mr. Kett was involved in a single-vehicle accident on May 27, 2010, when there was a collision between his vehicle and a large rock on Highway 1 near Spence’s Bridge, British Columbia. As a result of that accident two claims were made to Insurance Corporation of British Columbia (“ICBC”) – one was for damage to Mr. Kett’s vehicle; the other was for personal injuries sustained by Ms. Bianca Nguyen, the passenger in the vehicle. ICBC determined Mr.

Kett was at fault for the accident and paid for both the damage to the vehicle and the personal injuries sustained by Ms. Nguyen under the collision coverage provided by his insurance policy. [ 2 ] Mr. Kett asserts the claim for damage to his vehicle should have been paid under the comprehensive coverage provided by his insurance policy. Further, he asserts the personal injuries sustained by Ms. Nguyen should have been covered under no-fault benefits. The significance of the type of coverage under which the damage to the vehicle and the injuries to Ms.

Nguyen are paid is that, if damages are paid under the collision coverage rather than the comprehensive coverage, Mr. Kett loses his safe driver discount and will thus pay more for insurance premiums in the future. FACTS ADMITTED BY THE PARTIES [ 3 ] The parties admitted the following facts: 1. On May 27, 2010, the claimant was driving his 2001 Chrysler Sebring when the car collided with a large rock on Highway 1 near Spence’s Bridge, British Columbia. His girlfriend Bianca Nguyen was traveling with him and seated in the passenger seat of the vehicle. 2.

The claimant was the registered owner and principal operator of the vehicle which was covered by a policy of insurance held with ICBC. The policy provided third-party liability coverage, collision coverage, and comprehensive coverage. 3. The following form part of the contract of insurance: the provisions of the Insurance Vehicle Act and Regulations, the ICBC Autoplan Optional Policy, and the ICBC Claim Rated Scale (CRS). 4. The vehicle sustained damage to the driver’s side front wheel and surrounding areas as a result of the accident. 5.

The claimant reported the accident to ICBC on May 28, 2010, and commenced a claim for coverage with ICBC. 6. The vehicle was deemed a total loss by ICBC. After investigating the claim, ICBC paid the claimant the actual cash value of the vehicle minus a $500 deductible. ICBC covered the loss of the vehicle as a collision claim under the policy of insurance. If the loss of been covered as a comprehensive claim, the deductible would have been $300. 7. Ms. Nguyen made a claim to ICBC for personal injuries she suffered as a result of the May 27, 2010, accident. On November 4, 2010, ICBC resolved Ms.

Nguyen bodily injury claim under Mr. Kett’s third-party insurance coverage. The resolution of that claim included no-fault benefits as well as fault-based payment for pain and suffering. POSITION OF THE PARTIES [ 4 ] Mr. Kett says the accident of May 27, 2010, was a no-fault collision that could have happened to anyone. He says damage to his vehicle should have been covered under the comprehensive coverage of the policy. He also says the personal injury part of the claim should have been covered under the “no-fault” benefits. Mr. Kett characterizes the issues as follows:

a) Was he liable for the accident?

b) Should the vehicle damage claim and the personal injury claim have been paid out under the collision or under the comprehensive part of the policy?

c) What damages are appropriate in the circumstances? [ 5 ] Mr. Kett also asks for restitution; namely, $200 which is the difference between the $500 deductible he paid under collision coverage and the $300 deductible payable under the comprehensive part of the policy. He also asks that all excess insurance premiums he has paid to date, resulting from the increase to his premiums based on the claim rated scale, imposed as a result of this accident be paid back. In other words, he wants to be in the same position on the claim rated scale that he would have been in but for the accident of May 27, 2010. [ 6 ] Mr.

Kett argues that the characterization of the claim, that is, comprehensive coverage versus collision coverage raises an issue of contractual

interpretation. The court will need to determine whether the impact between Mr. Kett’s vehicle and the large rock is covered by the definition of “comprehensive” or by the definition of “collision”. A decision on this issue also determines whether ICBC can increase Mr. Kett’s premiums on the claim rated scale.

[ 7 ] Mr. Kett argues that comprehensive coverage applies to falling or flying objects. The definition includes all items not specifically included in the definition of collision coverage or what is not otherwise caught in the definition of comprehensive coverage. Mr. Kett also argues the court should consider the class of objects covered by the definition of “collision”. He says this case turns on whether the boulder, which he says was falling across the road at the time of impact, falls under the same class of objects as a road sign, bridge, peer, etc. Mr.

Kett argues that a rolling boulder does not fall under the definition of “collision” .A rolling boulder is not stationary, it is not part of the road, it is not intrinsic to the transportation network, it is not predictable and is not easily avoidable. He argues that a rolling boulder is more like a deer moving across the road (which is covered by comprehensive) than the items covered under “collision”. [ 8 ] The second issue addressed by Mr. Kett is whether he is responsible for Ms. Nguyen’s claim.

He argues that if there was no negligence on his part and if the court finds the damage to his vehicle falls under the comprehensive part of the policy both claims should be covered under his comprehensive coverage and there should be no consequence to him. In this regard Mr. Kett argues ICBC has the burden of proving he is liable for the accident and in order to do so ICBC needs to show he was not careful and should have foreseen or could have avoided the accident. [ 9 ] ICBC submits there are two issues; namely, (

a) Should both claims be paid out under the collision or under the comprehensive coverage of the policy; (

b) Is Mr. Kett liable for the accident? ICBC acknowledges, if the court finds the claim should have been proceeded with under the comprehensive coverage of the policy, the $200 paid by Mr. Kett (the difference between the $500 paid and the $300 deductible under the comprehensive policy) should be returned to him. [ 10 ] ICBC’s view is that on May 27, 2010, there was a collision as a result of the vehicle striking an object on the roadway. ICBC says what the boulder may or may not have been doing is of no moment. As to the liability issue, ICBC says there was some degree of negligence on Mr.

Kett’ s part because he either failed to keep a proper lookout or was traveling at excessive speed in light of the prevailing road conditions. [ 11 ] ICBC argues the accident in this case was a “collision” as defined in the policy of insurance because the claim arises from an accident where Mr. Kett collided with an object on the roadway. ICBC urges the court not to conflate the negligence issue with how the accident is classified under the policy. ICBC says that the key evidence in establishing that this claim falls within Mr. Kett’s collision coverage is that: (

a) the damage to Mr. Kett’s vehicle occurred to the front driver’s side wheel; (

b) Mr. Kett’s initial reports of the accident state the boulder was on the roadway; and (

c) the passenger, Ms. Nguyen, testified the rock hit the ground. Furthermore, ICBC submits the accident resulted from Mr. Kett’s negligence. The boulder was large and any collision with it was a result of Mr. Kett driving too fast for the road conditions and failing to maintain a proper lookout. [ 12 ] ICBC submits the accident was properly assessed under Mr. Kett’s collision coverage.

It does not fall under his comprehensive coverage which only applies to damage that collision coverage does not cover and includes coverage falling within one of the enumerated exceptions in the definition EVIDENCE ADDUCED AT TRIAL Mr. Kett’s evidence [ 13 ] Mr. Kett went purchased insurance in 2009. The insurance sales agent explained that his insurance premiums would go up or down depending on claims he made. He gave Mr. Kett a discount on the scale because Mr. Kett had been claim-free in New Zealand, where he had previously resided. Eventually Mr.

Kett received a letter from ICBC saying they had accepted his claim status from New Zealand. He was approved for a 15% discount. [ 14 ] Mr. Kett said his vehicle was in good operating condition on the day of the accident. The tires were new. The brakes were in good condition but he did not know the percentage of wear. However, he had the vehicle serviced regularly. The last maintenance had been done before the accident but he could not recall the exact date. [ 15 ] On May 27, 2010, Mr. Kett was driving north on Highway 1 near Spence’s Bridge. It was dark.

It had rained heavily earlier in the evening but at that point in time it was only a light drizzle. At that location on Highway 1 the road made a long gradual turn to the left. The road was clear. Mr. Kett was unfamiliar with the road so he was driving slowly. Without warning, a large boulder came from the right side of the road toward the front of his vehicle. This surprised Mr. Kett. He had no time to react. He could not say how far the rock was from the vehicle when it first appeared. It may have been 1, 3, or 5 metres away. It was hard to tell. Mr. Kett just had enough time to apply the brakes.

He did not know how much the vehicle slowed down, if at all. [ 16 ] Mr. Kett described the boulder as being irregular in shape and about half a meter across. He noted he had used the word “roll” to describe the movement of the boulder; however, a better description was it was bouncing and tumbling across the road. He said the boulder came across the front of the vehicle and caught on the left half of the front bumper. The boulder went down and under the vehicle. As the vehicle moved forward, the boulder hit the inside of the left front wheel from the underside of the vehicle and took the wheel off.

The airbags deployed. He thought this caused the front windshield to break. [ 17 ] At this point in time the front of the car was on the ground. However, the car slid forward into a shallow ditch on the right side of the road. The car went down one side and slid up onto the other side of the ditch and stopped. Mr. Kett said the left side of the car was buried. The left (driver’

s) door was blocked so Mr. Kett had to climb out of the window. He was not hurt. [ 18 ] At the time just before the impact Mr. Kett was traveling at approximately 60 km/h. The speed limit on Highway 1 was 80 km in that area. Mr. Kett had adjusted his driving to the prevailing conditions. He was not familiar with the road so he took extra care and was not going at the speed limit. He said, other than the fact that it was dark and there was a light drizzle, there were no other reduced visibility issues or dangerous conditions.

[ 19 ] Mr. Kett said he had no reason to expect there would be falling rocks. The area near the scene of the accident was covered with small gravel on the bank on the right side and on the side of the road. He did not see a falling rock sign in that area; however, he had seen one earlier in an area where there was a cliff face. The area where he was driving at the time of the accident had more of a bank on the side of the road than a sharp transition. [ 20 ] Mr. Kett did not see where the boulder came from. He just saw it was moving from the right side of the road.

He was certain the boulder was moving when he saw it. It was not airborne, but he was not sure if it was in contact with the ground at the very moment of impact. From the time he first saw the boulder, he had only one to one and a half seconds to react. There was no way he could have avoided the collision with the boulder. Mr. Kett said the damage to the vehicle was most severe in the wheel area on the front of the vehicle. The car was also damaged when the vehicle slid on the road. [ 21 ] A number of passing cars pulled over at the scene. The police did not attend.

The driver of one of the vehicles who pulled over offered them a ride to Cache Creek. The next morning Mr. Kett went to pick up his vehicle but it was gone. Apparently, the police had arranged to have the vehicle towed. Mr. Kett later had a very brief conversation with the police; it was a basic, short conversation. He did not tell the police the details of what had occurred. He eventually received a copy of their accident report in the mail. [ 22 ] Initially he did not think that that Bianca Nguyen was hurt. However the next day she started to feel pain in her neck and shoulder. [ 23 ] In cross-examination Mr.

Kett was questioned about a number of areas his evidence. He was asked about what he had done before the trip. Mr. Kett travelled from Vancouver on the day of the accident. He could not remember if he worked that day. He agreed if it was a Thursday he normally worked. He could not remember if he had taken a day off for the trip. He could not recall what he did that day before he left home. Mr. Kett worked as a project manager and, at that time, he worked in the office 9:00 a.m. to 5:00 p.m. If he was going to work he would normally get up about 7:00 a.m.

He did not recall what time he woke up on the day of the accident. However, he volunteered he was relaxed and alert. [ 24 ] Mr. Kett was also asked about the route. He acknowledged it was first time he had driven in the area of Cache Creek. He believed it was a long weekend and he was going to spend time with a friend. The accident occurred at approximately 10:40 p.m. It was a three-hour drive. They stopped at Hope for dinner. Mr. Kett had been on Highway 1 before but never down the particular stretch where the accident occurred. He acknowledged it was dark and it was drizzling at the time the accident occurred.

He acknowledged there may have been a hill just before the area of the accident but it was not in the immediate vicinity of the area where the accident occurred. It was his recollection he could see 100 to 200 metres in front of him as he was driving. [ 25 ] Mr. Kett was asked about the ICBC claim. He was shown a copy of a claim file report prepared by ICBC dated May 28, 2010. He said had not seen that document before. He acknowledged he made a claim to ICBC at approximately 12:26 a.m. on May 28, 2010. He called ICBC when he got to Cache Creek.

Counsel referred him to the description of the accident noted in the accident details

section of the claim file report. Part of that description read as follows: “as in. came over hill, there was a large rock on the road”. Mr. Kett was asked whether he reported that he came over hill. He could not remember his exact words. He may have said he was going downhill. He thought there was no hill immediately before the area where he encountered the rock. He did not believe the wording in the form was accurate. He said he was coming down a “gentle hill”. [ 26 ] Mr. Kett said the wording in the claim file report gave the impression he was coming over hill.

He suggested the call taker who took the report heard him wrong. Mr. Kett remembered telling the call taker he was coming down a gentle hill, not that he was coming over the hill. Mr. Kett agreed he told the call taker there was a large rock on the road. However, he also told the call taker the rock was “rolling”. It was pointed out to Mr. Kett that there was no reference to “rolling” in the report. He countered that neither did it say the rock was stationary. It was also pointed out to Mr. Kett that in the report the call taker wrote Mr. Kett had “collided” with a rock.

He agreed there was no reference to the wheel of the vehicle coming off or to the vehicle sliding along the road. However Mr. Kett would have told the call taker that he lost control. He was asked about the movement of the rock. He said the rock was traveling from right to left [ 27 ] Mr. Kett was asked about the damage to the car. He identified photographs taken of his vehicle. He acknowledged there was no obvious damage to the right side of the vehicle but there was obvious damage to the left side. He agreed the left wheel was ripped off.

He agreed there was damage between the wheel well and the bumper and under the headlight, a piece of the bumper had been ripped off. He also agreed the hood of the car was not aligned. He said that damage was caused by the accident as a whole. He did not know if it was caused by the rock. Mr. Kett believed the rock caused the wheel to fall off. He also believed the rock or the vehicle sliding on the road caused damage to the bumper. The remainder of the panel damage was probably caused from the rest of the accident and not the collision with the rock. [ 28 ] Mr.

Kett was referred to a statement taken from him at ICBC on June 8, 2010. He identified it, read it, understood it, and it was true and correct. He acknowledged that in the statement he wrote there was a “rocky bank” on the right side of the road. He said the ditch on that side sloped down a little and then went up the bank. It was put to him that rocks from the bank on the side of the road were not prone to falling. Mr. Kett said maybe small pieces of rock might fall but not large rocks. However, he noted it was possible some rocks could fall. [ 29 ] Mr.

Kett was referred to an email he wrote to an ICBC adjuster dated June 16, 2010. It was pointed out to him that in the email he wrote: “the roadside terrain did not appear vulnerable to rock fall”. Mr. Kett said he did not see the need to mention there was a bank with rocks on the side of the road. It was suggested to him that he had ignored mentioning the rocky bank because it would improve his claim. It was also pointed out to him that in his statement of June 8, 2010, he wrote he hit the rock. Mr. Kett agreed but noted he had not described how the rock got there. [ 30 ] Mr.

Kett was asked whether he was advised by anyone to be careful when describing how he lost control. He said some friends had given him “throw away advice” about not using the term “lost control”. He could not remember when he was told this. He agreed that in giving evidence in court he used the term “lost control” to describe what happened after he hit the rock. [ 31 ] Mr. Kett was referred to an RCMP file report. He agreed in that report someone had written he had hit a large rock that had

fallen on the road. Mr. Kett said, in a basic sense, that is what he reported. He did not remember mentioning to the police that the rock was still moving. [ 32 ] Mr. Kett agreed that the impact of the claim rated scale on his ICBC claim was explained to him by an ICBC employee. He also agreed his description of the rock rolling from right to left, which was contained in his statement to ICBC dated June 8, 2010, was made after he had received information about the claim rated scale. However, Mr.

Kett maintained he did not say the rock was rolling in order to improve the chance of this claim being accepted. [ 33 ] Mr. Kett was asked about the area of damage on his vehicle. He acknowledged the damage was to the left of his vehicle and the rock rolled from right to left. Mr. Kett was able to avoid striking the rock with the right side of the vehicle. It was put to him that the only way the damage to the left side of his vehicle could occur was if the rock was stationary. He disagreed.

When it was pointed out there was no damage on the right side, he said that was because the rock struck the vehicle on the far left. Mr. Kett said the rock hit the front of the vehicle and then went under the car and hit the axle and wheel from underneath. Ms. Nguyen’s Evidence [ 34 ] Ms. Nguyen was a passenger in Mr. Kett’s vehicle on May 27 2010. She said she saw the boulder rolling down. It happened very quickly. She could not recall how far ahead of the car the boulder was. However, the boulder was moving. It was rolling from the right side of the road and onto the road.

It was coming from the right side where the bank was. She was asked to describe the bank along the side of the road. She did not remember and it was dark. [ 35 ] Ms. Nguyen said Mr. Kett hit the brakes before he hit the boulder. She said the vehicle did not swerve. The boulder hit the front of the car more on the driver’s left side. She was not sure if it hit the bumper. Mr. Kett did not have long to react; it was a matter of a second or two. Ms. Nguyen did not remember how fast the car was going but she did not think Mr. Kett was speeding. Ms. Nguyen said that the visibility was good.

It was dark but one could see ahead. During the drive there had been a light drizzle of rain but at the time of the accident there was no rain. The road was not wet. [ 36 ] Ms. Nguyen said she and Mr. Kett left Vancouver and started driving at approximately 6 or 7 PM. When they left it was sunset and they could still see the sky. However, as they drove along it got darker. She said Mr. Kett drove at a comfortable speed for her. As it got darker he drove slower and more carefully. She said there was no way Mr. Kett could have avoided hitting the boulder. It happened too quickly. Ms.

Nguyen said she saw the boulder come out onto the road. She thought it must have come from the bank. However, she did not see the boulder come off the bank, but there was nowhere else the rock could have come from. On one side (the right) there was a mountain and on the other side (the left) just a cliff. [ 37 ] After the vehicle hit the boulder it slid forward into the ditch. The airbags deployed and the windshield broke. The front left wheel fell off. Ms. Nguyen said she was scared and shocked. [ 38 ] The next day Ms. Nguyen felt her neck and shoulder hurting.

She went to see the doctor and missed a few days of work. Ms. Nguyen said that ICBC paid for approximately $7000. She did not remember the exact amount. That payment was for a medical treatment. [ 39 ] In cross-examination Ms. Nguyen said she did not recall what she had been doing earlier on the day of the accident. She might have been working but she really did not remember. [ 40 ] Ms. Nguyen said the rock hit the front of the vehicle near the driver’s side. The rock was in front of the vehicle. She did not know it was underneath the vehicle. She could not tell if the wheel hit the rock.

She actually saw the vehicle hit the rock. She was shown photographs and noted the impact between the rock and the vehicle occurred around the white line on the bumper. [ 41 ] She was also asked about what happened after the vehicle struck the rock. She said the car slid forward. She was in shock so she did not remember much. The vehicle slowed down. She recalled the airbag deploying, the car hitting the ditch, and crawling out through the window. [ 42 ] It was suggested to Ms. Nguyen that if the vehicle struck the rock with the front wheel the rock must have been on the ground. She said she did not know.

This was suggested to her again albeit worded differently. Ms. Nguyen again said she did not know. She was asked about the size of the rock. She demonstrated the size which looked to be 2 feet x 3 feet. Ms. Nguyen said the rock did not swerve but one side was taller than the other. It was put to her that the rock would have been at least 2 feet tall. She demonstrated and it looked to be about approximately 2 feet. [ 43 ] It was again put to Ms. Nguyen that if the vehicle collided with the rock on the left side then the rock would have to have been on the ground. She asked for the question to be repeated.

Her response was that, at the moment they hit the rock, it was rolling out onto the road. She noted the rock was rolling out onto the road. The rock just came out suddenly. The rock may have been on the bank but she only saw it roll onto the road. She said she did not know if the rock was on the embankment on the right side. She said the ground to the right of the car was not flat. Ms. Nguyen could not recall if the embankment had any loose rocks on it. She said she could not recall if she was aware any rocks might fall down from the embankment. [ 44 ] Ms.

Nguyen was referred to a statement taken at ICBC on June 8, 2010. It was pointed out to her that in the statement she did not say the rock rolled from right to left. She responded she did say the rock rolled out in front of the car. She could not recall if she said that the rock rolled from right to left because she thought it was obvious. It was suggested to her that she gave the details of the rock rolling right to left in order to be in harmony with Mr. Kett’s statement. She denied that was so. [ 45 ] After cross-examination but before redirect I asked Ms. Nguyen if she drove.

She did not drive at the time of the accident and only got her driver’s license eight months ago. I asked her if the rock was airborne when she saw it. She said yes; when she first saw the rock it was airborne and then it hit the ground.

INSURANCE POLICY AND CASE LAW [46] There is no issue that Mr. Kett was the registered owner and principal operator of the vehicle which was insured under policy ofinsurance with ICBC at the time of the accident. That policy provided third-party liability coverage, collision coverage andcomprehensive coverage. [47] The insurance policy defined the term “collision coverage” in Division 2 s. 2.3 as follows: “Collision coverage” means coverage for loss or damage caused by upset or collision of a vehicle with another object, including, but notlimited to

a) the surface of the ground, the roadway being traveled on or an object on, in, under, over or adjacent to the roadway, including a roadsign, guardrail, peer, bridge or culvert or any body of water or waterway under or adjacent to the pier, bridge, culvert or roadway,

b) pedestrian as defined in

part 3 of the Motor Vehicle Act,

c) a vehicle attached to the vehicle, and

d) cargo, including animals, carried in or on a commercial motor vehicle, the gross vehicle weight of which exceeds 5000 kg, or acommercial trailer, and includes coverage for loss or damage caused by collision with another object where the collision results from thepresence on or adjacent to the roadway of a domestic or wild animal, either living or dead, but there is no impact with the animal. [48] The policy of insurance also defines the term “comprehensive coverage” in Division 2 at s. 2.3 as follows: “comprehensive coverage” means coverage for loss or damage other than loss or damage to which collision coverage applies andincludes coverage for loss or damage caused by missiles, falling or flying objects, lightning, fire, theft or attempted theft, earthquake,windstorm, hail, rising water, malicious mischief, riot or civil commotion or the stranding, sinking, burning, derailment, upset orcollision of the conveyance in or on which a vehicle is being transported on land or water, vandalism and impact was a domestic or wildanimal either living or dead. (Emphasis added) [49] The parties were unable to find any case law which directly addressed the issue and fact pattern in this case.

However, bothcounsel submitted case law from which they extracted principles which they said should be applied on the issue of whether collisioncoverage or comprehensive coverage should apply in this case. [50] ICBC relied on Insurance Corp. of British Columbia v. Boutsakis, [1998] B.C.J. No. 2604. In that case the court found theissue before it and at trial as one of statutory

interpretation in light of the facts disclosed by the evidence. The court concluded that thesubject vehicle had collided with a stationary object; namely, a dresser that was lying on the road, and there was no evidence to supportthe suggestion the dresser was either “falling” or “flying” when the subject vehicle collided with it. Therefore, the court concluded thedamage was to be assessed under the plaintiff’s collision coverage. [51] ICBC also relied on Compagna (Guardian ad litem of) v. Insurance Corp. of British Columbia, 2001 BCPC 335.

In thatcase the court concluded the subject vehicle had “collided with” floodwaters which were flowing across the roadway on which thevehicle was traveling. Because the subject vehicle collided with those floodwaters, the court determined the resulting damages were to becovered under the claimant’s collision coverage. [52] Mr. Kett also relied on Boutsakis for the proposition that the court must not resort to speculative, irrational or conjecturalconclusions. In that case Mr.

Boutsakis testified the dresser drawer was not moving at the time he ran over and he did not see any othervehicle in front of him or the object fall off anything else. However, he argued on appeal that the dresser drawer could have beenmoving. The court said, on the facts of that case, the damage to Mr. Boutsakis’ vehicle was not caused by “falling or flying objects”.However, in this case, Mr.

Kett argues that the analysis in Boutsakis’ evidence suggests that if there is sufficient evidence that an objectis moving or has recently fallen then damages may well fall under comprehensive coverage. [53] On the issue of negligence, ICBC relied on Fontaine v. Thompson, (SCC), [1968] S.C.R. 626, in which thecourt determined the driver was driving at an excessive speed and unable to keep control of his vehicle when he attempted to avoid adeer on the roadway. The court reached this conclusion even though the vehicle was traveling under the posted speed limit.

In reachinghis conclusion the court considered all the relevant aspects of the driver’s conduct including the speed, load, and wet and slippery roadconditions. [54] ICBC also relied on White v. Webster, 2003 BCCA 118, a case where Mr. White applied the brakes on his unloaded flatbedtruck in order to avoid hitting a cow that was very close to the line that divided two westbound lanes. The issue was whether there wascontributory negligence on the part of Mr. White. The trial judge apportioned the division of liability 50/50. On appeal the court notedMr.

White was driving under the speed limit and had testified he observed the cow when he was very close to it and then took evasiveaction. The court noted that on Mr. White’s own evidence he did not see the cow until he was so close to it that he had to take violentaction to avoid it. This led to the truck leaving the road. The court noted: “Having regard to those facts it was, in my view, a virtuallyunavoidable inference that there was some absence of lookout on the part of Mr. White”. Consequently, the appeal failed in so far as Mr.White sought to set aside the finding of contributory negligence. [55] Mr.

Kett relied on Waters v. Mariash, 2012 BCSC 927, on the issue of negligence. In that case Mr. Waters were travelling onHighway 1 and the defendant was travelling in the same direction, slightly behind him. Mr. Waters saw a tree fall across the highway.He was about 200 feet away when it began to fall and 100 feet away when it fell. Mr. Waters braked sharply and stopped butnevertheless hit the tree. The defendant also braked sharply but his trailer jackknifed and hit Mr. Waters’ vehicle. The defendant appliedto have the claim against him dismissed. He argued that Mr.

Waters had not established the defendant was negligent.

[56] Mr. Kett relied on this case for the proposition that the law does not demand a standard of perfection from a driver faced with asudden emergency. He also relied on it for the conclusion reached by the court which was that the defendant was travelling below thespeed limit and was faced with an unexpected event that could not have been anticipated. The court concluded there was no evidencefrom which an inference could be drawn that the defendant was driving beyond his own competence or that of his vehicle.

ANALYSIS Does impact fall under collision or comprehensive coverage? [57] There is no dispute about many of the facts leading to Mr. Kett’s ICBC claim, however, an issue has been raised by ICBC aboutthe position of the rock/boulder at the time the accident occurred and about the credibility and reliability of Mr. Kett’s and Ms. Nguyen’sevidence in this regard. During the course of their testimony both Mr. Kett and Ms. Nguyen gave evidence which suggested the boulderwas moving and possibly even airborne at the moment of impact.

Accordingly, before addressing other issues in this case, I must makefindings of fact about the location of the boulder and whether it was stationary, airborne or otherwise at the time of impact. [58] As noted, ICBC challenged the credibility and reliability of Mr. Kett’s and Ms. Nguyen’s testimony. It urged me to reject theirevidence about the events immediately preceding and at the time of impact between the vehicle and the boulder. In doing so, ICBCacknowledged it had called no witnesses because, other than Mr. Kett and Ms.

Nguyen, there were no other witnesses who had directevidence to give about the accident. However, ICBC submitted the court should not draw an adverse inference from its failure to callwitnesses or an expert in the circumstances of this case. ICBC argued that Mr. Kett’s version of events should not be accepted. ICBC’ssubmission suggested Mr. Kett’s assertion that the boulder was moving at the time of impact was self-serving and was only documentedin writing once he became aware the accident might affect his CRS rating. Further, ICBC argued Mr.

Kett did not offer an explanationabout how the boulder could have been airborne at the time of impact. [59] ICBC asked the court to draw the inference that the boulder was in fact stationary and on the ground at the time of impact.ICBC pointed to evidence which it argued supported this inference including: (

a) the photographs tendered at trial, which depicted thedamage to the vehicle, showed much of the damage was on the driver’s side front wheel and the surrounding undercarriage; (

b) Mr. Kettand Ms. Nguyen testified the boulder travelled from right to left in front of the vehicle; and (

c) the vehicle did not strike the boulder onits passenger side. [60] Mr. Kett pointed out ICBC did not call any evidence at trial; therefore, the only evidence before the court is that of Mr. Kett andMs. Nguyen. Accordingly, there is no direct evidence to contradict their evidence about how the accident occurred. Mr. Kett submittedhis evidence and that of Ms.

Nguyen was credible, accurate and reliable and should be accepted by this court, particularly in light of thefact that ICBC called no evidence. [61] A trial judge must assess the accuracy and reliability of the evidence before the court, even if that evidence is only adduced byone of the parties. Accordingly, I will now turn to an assessment of the credibility (I use this term in its broadest sense which includesveracity, reliability, and accuracy) of the only two witnesses who testified. [62] In assessing the credibility of Mr. Kett and Ms.

Nguyen, I have been guided by the observations of O'Hallaran J.A. in Faryna v.Chrony, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) 354 at pp. 356-357: On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibilityof the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly whathe has seen and heard, as well as other factors, combine to produce what is called credibility ...

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the trust of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [63] In this case is clear that Mr. Kett and to a lesser degree Ms. Nguyen, his girlfriend, have an interest in the outcome of thislitigation. Therefore, that is a relevant factor to consider in assessing their credibility. However, as Rowles J.A. said in R. v. R.W.B.,[1993] B.C.J. No. 758 (C.A.) at para. 28: ...

Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not theonly factor to be considered. ... [I]t is essential that the credibility and reliability of the complainant's evidence be tested in the light of allof the other evidence presented. ... [64] First, I will consider the evidence of Mr. Kett. He was able to clearly remember and recount the events leading to the accidentof May 27, 2010. When he did not recall or was unsure he did not hesitate to say so. He clearly described what he saw from his vantagepoint as driver of the vehicle.

I did not find him prone to exaggeration. He speculated on matters from time-to-time but the context of histestimony made it obvious that he was doing so. He was responsive to questions both in direct and cross-examination. ICBC focused onthe fact that Mr. Kett’s initial report by telephone to the claims centre did not indicate the rock was moving although in his testimony hesaid it was. He also said he told the call taker it was moving. The document referred to by ICBC is a claim file report ostensibly preparedby the call taker. It was not a report prepared by or subsequently verified by Mr. Kett.

Moreover, the description contained is cursory anddoes not purport to be a complete recitation of the discussion between Mr. Kett and the call taker.

[65] ICBC through its questioning of Mr. Kett tried to establish that his memory of the day of the accident was not particularly clear.He was unable to remember details of whether he had worked that day, what else he had done that day, what time he left, and so on. Ihave no difficulty accepting that Mr. Kett may have forgotten details of what happened earlier in the day but his memory of the accident itself was more detailed given the significance of and inconvenience caused by the accident. [66] Second, I will consider the evidence of Ms. Nguyen. Her testimony was not as detailed as of Mr. Kett’s.

She testified thatfollowing the accident she was in shock and she did not remember much of what happened after the vehicle struck the rock. However, Ifind she remembered and was able to recount the important details about what led to the accident and the impact with the rock. [67] Having considered the evidence of Mr. Kett and Ms. Nguyen, I have no difficulty accepting their testimony about theconditions at the time of the accident including: the time, the approximate location, that Mr.

Kett was driving below the speed limit atapproximately 60 km per hour, that there was a light drizzle of rain, that the road was unfamiliar to Mr. Kett and that visibility was in theapproximate range of 100 to 200 metres. [68] I now turn to the central issue in dispute which is whether the boulder struck by Mr. Kett’s car had fallen and was movingimmediately before or at the time of impact. Mr. Kett’s evidence is that he did not see where the boulder came from but he saw it wasmoving from the right side of the road to the left. When he saw the boulder it was not airborne.

He maintained that when he reported theaccident to an ICBC claim centre by telephone he told the call taker the rock was “rolling”. Further, in a typed statement taken by ICBC,dated June 8, 2010, he reported that a large rock was rolling across the road from right to left. He did not see the rock until the last minuteand could not avoid it. [69] Mr. Kett’s testimony is supported by the evidence of Ms. Nguyen who testified she saw the boulder rolling from the right sideof the road and onto the road. She thought it must have come from the bank on the right side but she did not see the boulder coming fromthe bank.

In cross-examination she was asked several times about this point. In particular, it was put to her that if the vehicle struck therock with the left front wheel the rock must have been on the ground. She said that at the moment the vehicle hit the rock to rock wasrolling out onto the road. The rock came out suddenly. It may have been on the bank on the right side of the road but she only saw therock roll onto the road. In answer to a question I asked, Ms. Nguyen responded the rock was airborne when she first saw it and then it hitthe ground.

However, since the question I asked was inadvertently a leading question, I must treat her answer with caution. [70] ICBC urged me to consider Mr. Kett’s and Ms. Nguyen’s testimony with caution. It argued their description of the accident (inparticular Mr. Kett’

s) in the typed statements to ICBC and at trial is not consistent with the description Mr. Kett gave to an ICBC calltaker immediately following the accident. Furthermore, ICBC noted that the description of the impact was in “the active voice”; namely,it was the vehicle hitting the rock rather than the rock hitting the vehicle.

Furthermore, as noted above, ICBC asked me to drawinferences from the location of the damage on the vehicle, as shown in photographs adduced at trial and other evidence, to conclude therock was in fact stationary and on the ground at the time of impact. [71] I must consider whether I should accept the evidence of Mr. Kett and Ms. Nguyen about the mechanics of the accident orwhether I should draw the inferences asserted by ICBC. Trial judges in both civil and criminal cases regularly draw inferences as part oftheir daily judicial duties.

Some of the most apt descriptions of the inference drawing process are those found in criminal cases. In R. v.Morrissey, (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont.C.A.) at p. 209 Doherty, J.A. described the process as follows: A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably andlogically drawn from fact or a group of facts established by the evidence. An inference which does not flow logically and reasonablyfrom established facts cannot be made and is condemned as conjecture and speculation ... In Caswell v.

Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.) Lord Wright noted at 169-70: …Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective factsfrom which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practicalcertainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability.

But if there are nopositive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation orconjecture. [72] Mr. Justice Fitch recently commented on the inference drawing process in India v. Badesha, [2014] B.C.J. No. 910 (BCSC) asfollows at paras. 292 to 295: It has been said many times that the line between permissible inference and speculation is sometimes hard to draw: see D.

Watt, Watt'sManual of Criminal Evidence (Toronto: Carswell, 2013) at pp.109-110, where the author notes that "an inference is a deduction of factthat may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings." In R. v. Munoz (2006), (ON SC), 86 O.R. (3d) 134 at para. 31, Ducharme J. emphasized that drawing inferences isnot a process of subjective imagination. It is not enough to create a hypothetical narrative that, however speculative, could conceivablylink the primary fact or facts to the inference or inferences sought to be drawn.

The inference must be one that can reasonably andlogically be drawn and, even though the inference-drawing process may be difficult or complex, it cannot depend on speculation orconjecture, rather than evidence, to bridge any inferential gaps. In R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) Doherty J.A. succinctly put it this way: A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably andlogically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably

from established facts cannot be made and is condemned as conjecture and speculation. In R. v. Dadshani , [2006] O.J. No. 1857 (Ont.S.C.J.) at para. 1 , Khealy J. noted: There are two ways in which inference drawing can become impermissible speculation. First, the evidence must establish the primary facts. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation.

Second, where the proposed inference cannot reasonably and logically be drawn from the established primary facts, it becomes impermissible speculation. [ 73 ] What are the primary facts from which ICBC urges me to draw the inference that the rock was in fact stationary and on the ground at the time of impact? The most salient “primary facts” relied on by ICBC in advancing its assertion are: the damage caused to the vehicle was on the driver’s side; there was no damage on the passenger side caused by the rock or impact with the rock; there was no description that the rock was airborne in the reports filed by Mr.

Kett and Ms. Nguyen; the description given by Mr. Kett of the collision with the rock is not consistent with the description of a projectile or falling object coming into contact with car; Mr. Kett did not offer an explanation about how the rock could have been airborne at the time of impact; and the path the rock was said to have traveled was from right to left. [ 74 ] I am not able to draw the inferences suggested by ICBC because the “primary facts” on which it relies are not sufficient to allow me to conclude the accident could not have occurred as described by Mr. Kett and Ms. Nguyen.

There are too many variables and without additional evidence, (such as accident reconstruction evidence, photographic evidence of the location to show a rock fall was unlikely etc.) the inferences urged upon me by ICBC could not be drawn reasonably and logically and would amount to impermissible speculation. [ 75 ] More importantly however, I am not prepared to draw those inferences because I accept the evidence of Mr. Kett and Ms. Nguyen that immediately before the collision the rock was in motion and was moving from right to left in front of the vehicle. In reaching this conclusion I have disregarded Ms.

Nguyen’s answer to my leading question that when she first saw the rock it was airborne. The conclusion I draw from the evidence about the accident is that the rock had recently fallen and at the time of the accident had not yet come to rest. [ 76 ] In light of that conclusion, I find the cases relied on by ICBC, namely, Boutsakis and Compagna are distinguishable. In the former the court found the dresser drawer was stationary and was lying on the roadway; in the latter the floodwaters had already flooded the roadway. The judge found Mr.

Compagna was alert to the rising floodwaters as he went down a hill and did not take proper care before beginning to drive through the floodwaters that were already flowing onto 152 nd Street. [ 77 ] In determining whether Mr. Kett’s claim falls under collision coverage or comprehensive coverage, I must consider the specific facts of this case and decide whether or not the impact with the boulder was one which comes within the language of Mr. Kett’s policy of insurance. In the particular circumstances of Mr.

Kett’s case, I am satisfied the accident falls within the scope of comprehensive coverage rather than collision coverage. I reach this conclusion because the boulder was still moving at the time of impact and had not yet come to rest. In other words, the “fall” of the rock had not yet been completed. Was Mr. Kett negligent? [ 78 ] In light of my findings regarding Mr. Kett’s credibility, I do not accept ICBC’s submission that Mr. Kett was negligent and failed to keep a proper lookout. I accept his evidence that, at the time of the accident, he was driving below the speed limit.

He acknowledged this was a road he had not traveled on before and therefore he was being cautious. He was also driving cautiously because it was dark. ICBC argued I should scrutinize Mr. Kett statements closely because they are self-serving statements designed to advance Mr. Kett’s claim. In this regard ICBC relied on the fact that Mr. Kett and Ms. Nguyen could not recall what they had been doing earlier in the day. In my view this is not significant. As noted, the significant event that day (which was approximately 4 years before the trial) was the accident. In the circumstances, it is understandable Mr.

Kett recalls the details of the accident but not the details of what else happened earlier that day. [ 79 ] ICBC also argued that if this court finds the boulder was moving, the fact it traveled across the front of the vehicle before contact with the driver’s side suggests the boulder was visible for a longer period than testified to by Mr. Kett and was thus avoidable. I am not persuaded by ICBC’s argument in this regard. There is insufficient evidence to support its contention that the boulder was on the road long enough for Mr. Kett was seen it. Mr.

Kett testified visibility was in the range of 100 to 200 metres. Both he and Ms. Nguyen testified that the boulder appeared suddenly. Mr. Kett also testified that although he had seen signs regarding the danger of falling rocks in some locations at an earlier point in time while he was driving, however, he did not see any near the location where the accident occurred. In the circumstances I am satisfied Mr. Kett was not negligent. I am satisfied he kept a proper lookout and maintained an appropriate speed.

CONCLUSION [ 80 ] I find, in the circumstances of this case, that the accident of May 27, 2010, which involved a collision between Mr. Kett’s vehicle and a moving rock, should be compensated under the comprehensive coverage rather than collision coverage under his policy of insurance. Furthermore, I find Mr. Kett was not negligent in the operation of his vehicle. Mr. Kett’s claim is therefore allowed. I award Mr. Kett the costs of filing and service fees.

I retain jurisdiction only in respect of any issues relating to costs or if the parties are unable to agree on the calculation of damages. _____________________________

The Honourable Judge M. F. Giardini Provincial Court of British Columbia