Kay v. ICBC & Zhang Date:, 2011 BCPC 190

Citation: Kay v. ICBC & Zhang Date: 20110616 2011 BCPC 0190 File No: 23652 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ANGELA KAY CLAIMANT AND: ICBC & WEI-NING ZHANG DEFENDANTS REASONS FOR JUDGMENT OF THE HIS WORSHIP DARRELL W. ROBERTS Appearing on their own behalf: Angela Kay Counsel for the Defendants: Allyson Edwards Place of Hearing: Richmond , B.C.

Date of Hearing: June 10, 2011 Date of Judgment: June 16, 2011 [ 1 ] The Claimant seeks damages from the Defendant in the amount of $1,480.47 for damage to her blue 2007 Lexus SUV alleged to be caused on August 30, 2010 in the Richmond Centre parking lot by a blue 2002 Buick Century vehicle owned by the Defendant Zhang, insured by the Insurance Corporation of British Columbia (ICBC), and operated by Tian-Yang Zhu (Zhu). [ 2 ] The Claimant parked her vehicle facing out in a parking stall and went into the Richmond Centre for approximately 5 minutes.

She testified that when she came out of the Centre she noticed the Defendant vehicle attempting to park or back out of the parking stall immediately adjacent to the right of her Lexus. She got into her vehicle but then as the Defendant vehicle was leaving she thought she should check the right side of her Lexus. She got out and went around to the right front of her Lexus and saw fresh scrape and crease marks in the area of the Lexus right front bumper and wheel. She says she immediately yelled out “hey, hey, stop” to the driver of the departing Buick. [ 3 ] Her yell to the Buick driver was heard by a Mr.

Brett Snider who was called as a witness by the Claimant. Mr. Snider also provided a witness statement that described a protracted parking or backing up manoeuvre of the Buick in the parking stall adjacent to the right side of the Lexus. The Buick was facing into the adjacent parking stall and as he watched the operator back it up at an angle it

struck the Lexus. He said that while he did not see the actual point of contact, he did see the Buick driven back into the Lexus causing the Lexus to move in a bouncing up manner. His statement given to ICBC over the phone on Sept. 17, 2010 states: I did not actually see the Buick “touch” the Lexus, but I did notice the Lexus move as if it had been hit. It actually moved/bounced up a bit.” [ 4 ] At the hearing Mr. Snider stood up and lifted a shoulder and one side of his body to demonstrate what he meant by a bouncing up of the Lexus on being struck by the Buick.

He said that when the Claimant called out for the Buick driver to stop he jumped out of his vehicle leaving the driver door open and ran after the Buick, and made the driver, Ms Zhu, stop. He told her she hit the Lexus when leaving her parking spot, and asked her to return to the parking aisle to exchange information with the Lexus owner. He said he did this because he had had an unhappy experience with a parking lot hit-and-run driver. He also testified that since the Buick driver seemed to be having difficulty operating her vehicle, he offered to park it for her and did so.

There was a green “N” on the rear of the Buick indicating that the operator was a novice driver. [ 5 ] It might be noted here that when Mr. Snider confronted Ms. Zhu with striking a vehicle and asked her to return to exchange information, there is no evidence that she then denied the accusation or refused to co-operate in the exchange of information as to the damage she was accused of causing to the Lexus, although such denial is became a formal part of the defence in the Reply and was advanced by counsel for ICBC at the hearing. [ 6 ] Mr.

Snider concluded his testimony by stating that he looked at both vehicles and demonstrated with his leg just where the damage was on the Lexus and how it was consistent with markings on the right rear of the of the Buick. [ 7 ] The Claimant testified that before this incident her Lexus was in near pristine condition and she included a number of photographs of the Lexus in her trial statement to demonstrate its good condition. In cross-examination she acknowledged however that there were two pre-existing parallel marks over the right front wheel well, a foot or more away from the area of the claimed damage.

As for the damage the Claimant says was caused by the backing up manoeuvre of the Buick, she submitted an assessment prepared by Richmond Auto Body Ltd in the amount of $1,480.47 which includes labour, paint and finish materials, and HST. [ 8 ] The Defendants case is, alternatively, a denial of any striking of the Claimant’s Lexus, a denial that any damage was caused by the Defendant’s Buick, and the assertion that the Claimant’s repair estimate is over-stated and that the actual cost of repair for the alleged damage should be very much less.

The estimate of this damage prepared by ICBC is $1,111.99 after HST, but the Defendants contend it should be further substantially reduced for the cost of repairing the two pre-existing parallel scrapes previously mentioned. [ 9 ] The defence of lack of proof of a striking by the Buick of the Lexus rested on the admission by the Claimant that she did not see her vehicle struck by the Buick, and on the acknowledgement by Mr. Snider that he did not actually see the point of contact between the two vehicles.

In response, the Claimant said she kept her Lexus in pristine condition and when she called out for the Buick driver to stop it was because she had never before seen the complained of damage and felt certain it had just been caused by the Buick operator. While this evidence would be unlikely to establish civil proof on a balance of probabilities, it was Mr. Snider’s unequivocal evidence that he saw the Lexus bounce up in the air as it was contacted on the front right side by the right rear of the Buick as it was backed up in the adjacent parking stall.

This evidence, which I accept, establishes sufficient proof that the Defendant vehicle did indeed strike the Claimant’s Lexus as alleged on August 30, 2010 in the Richmond Centre parking lot. [ 10 ] I turn to the issue of the proof of the extent of the damage that is claimed as set out in the estimate of Richmond Auto Body Ltd. There is difficulty on this issue because the older Buick Century was previously damaged in 2009, and even earlier, and none of this damage had been repaired. In support of this defence the Defendant called Mr.

Clough, an experienced ICBC estimator, who gave opinion evidence as to which notice had been given in a letter by the Defendant’s counsel. It was his opinion based on visually examining the markings on the Buick and the Lexus, that the damage to the Lexus was not caused by the Buick. This opinion was based primarily on a disparity in the height of the damage on the Lexus as some press scratches were as high as 29-32 inches from the ground and some were lower than 25 inches, the height of likely contact, on the Lexus.

There was no attempt to check for matching traces of paint. [ 11 ] However, in a most skilful cross-examination by Ms. Kay, Mr. Clough acknowledged that a photograph in Exhibit 1 tab 1A page 3 shows a long, horizontal, and deep scratch on the Lexus right front bumper panel at 25 inches from the ground that exactly matches a protruding plastic strip to the left of the Buick’s right rear wheel well, as shown in Exhibit 1, tab 4, photo 4; It is just in front of the white sign that says “unrelated damage”. This protruding plastic strip is exactly 25 inches from the ground. Mr.

Clough acknowledged that it could indeed account for some of the damage on the Lexus, although he declined to say all. It may be noted that the same scoring or deep scratch mark on the Lexus is also shown in the photos taken by the Defendant ICBC at Exhibit 1, tab 1A, page 8, and in Exhibit 1, tab 1B, page 2. [ 12 ] In both of these photos there are other horizontal scoring marks both above and below the scoring mark at 25 inches but exactly parallel to it. In looking at the scoring or scratch marks on the Lexus as shown in these photos, the evidence of Mr.

Snider comes to mind, of his seeing the Lexus bounce up in the air as the Buick backed into it.

It is not difficult to understand that the scoring or scratch marks seen in these photo exhibits reflect a contact of the Buick on the Lexus that pressed strongly enough to bounce the Lexus up in the air, and to make the other scratch marks in the paint of the Lexus that are exactly parallel to the deeper scoring or scratch line on the Lexus that is at 25 inches from the ground. [ 13 ] From all of the evidence, I have concluded that not only did the Defendant vehicle back into the Claimant’s Lexus causing it to bounce up, but that it did so hard enough to cause the damage of which the Claimant complains which is clearly shown in the photographs in Exhibit 1 and which is the basis for the estimate of the cost of repair prepared by Richmond Auto Body Ltd. [ 14 ] This leaves the question of the quantification of the Claimant’s loss.

As noted, the Claimant’s estimate is by Richmond Auto Body Ltd. This is because the Claimant’s insurance is with a private insurer. This estimate in the amount of $1,480.47 addresses some 17 items of labour in the painting and finishing repair of the area of the right front bumper, e.g., repair to the right front bumper cover, headlamp assembly, nozzle headlamp, door shell front, mirror outer R/C, handle, front door, texture, and more. As I say, there are 17

items on the estimate and the labour cost is 14.3 hours for $1,001, to which is added plus paint and shop materials of $320.85. The rest is HST. [ 15 ] The Defendant ICBC estimated the same damage on October 15, 2010 at $257.85 for paint and shop materials and 10.5 hours of labour for $735. But, their list of items is only 5, and is largely confined to the front bumper cover and fender. It does not address the scratches to the headlamp assembly, nozzle headlamp, mirror, or many of the other items on the Richmond Auto Body list which Mr Clough declined to say were unnecessary. [ 16 ] On this point I asked Mr.

Clough if he considered there was any lack of expertise in the Richmond Auto Body estimate and he declined to say there was. He said simply that Richmond Auto Body had addressed more items than ICBC, but he did not say it was wrong for them to have done so. His evidence most fairly given left the impression that perhaps the ICBC estimate was not as thorough as it might have been.

Considering all of the evidence on the point, I have concluded the Claimant has satisfactorily established the estimate of Richmond Auto Body Ltd as the basis for an award of damages. [ 17 ] However, there is one major point of contention that must be accounted for. The Richmond Auto Body estimate includes the repair of the two pre-existing horizontal scrapes on the Lexus. As noted earlier, these parallel scrapes can be seen in the photo in Exhibit 1, tab 1A, page 5.

The Claimant said in evidence that these two parallel scrapes pre-existed the damage on August 30, 2010 and would be fixed in the painting repair of the claimed damage. However, Mr. Clough pointed out that this repair is on a different body part from the major damage and increases the cost of repair in the order of $600. I accept the defence position that repairing these scrapes is a betterment cost that should be deducted, but the cost put on it by the Defendants seems inordinately high. Based on the evidence presented in the 2 estimates and all of the oral evidence including that of Mr.

Clough, and having in mind that an award of damages is not a scientific exercise but one of reasonable judgment, I have concluded there should be a deduction from the estimate of Richmond Auto Body Ltd of $400 for the cost of repairing the unrelated damage of the two parallel scrapes. [ 18 ] Deducting this amount from the repair estimate of Richmond Auto Body Ltd before HST ($1,321.85 - $400) leaves the sum of $921.85.

Adding 12 % HST of $110.62 results in damages of $1,032.47 which is hereby awarded to the Claimant. [ 19 ] The Claimant is also entitled to costs of $100 for filing fees and $20 for service costs for a total judgment against the Defendants of $1,152.47. _________________________ Darrell W. Roberts, Q.C. Adjudicator