Verhoeven v. Chan Date:, 2013 BCPC 340

Citation: Verhoeven v. Chan Date: 20131209 2013 BCPC 0340 File No: 25359 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ALEXANDER FREDERICK AKIO VERHOEVEN CLAIMANT AND: MURPHY YOK SHUN CHAN DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing in person: A. Verhoeven Counsel for the Defendant: Ms. Ming Cheng

Place of Hearing: Richmond , B.C. Date of Hearing: November 15, 2013 Date of Judgment: December 9, 2013 [ 1 ] This matter concerns a motor vehicle accident that took place in a parking lot in Richmond, B.C. between the Claimant and the Defendant. [ 2 ] The agreed facts are, as follows: (

a) A motor vehicle accident occurred around 10:30 pm on Friday, May 17, 2013 in the parking lot of 8328 Capstan Way, Richmond, B.C. (the “Accident”). (

b) The Accident involved two vehicles, one driven by the Claimant, Mr. Verhoeven, and one driven by the Defendant, Mr. Chan. (

c) Mr. Verhoeven was driving a 2009 Chevrolet Malibu with B.C. License Plate No. 245 SKE. He had one passenger with him, Kristine Wu. (

d) Mr. Chan was driving a 2005 Honda Odyssey with B.C. License Plate No. WPN 128. (

e) The Accident occurred as Mr. Verhoeven was reversing from a parking stall and Mr. Chan was driving through the parking lot. (

f) Both vehicles sustained damage due to the Accident. The damage to Mr. Verhoeven’s vehicle was to his rear bumper, and the damage to Mr. Chan’s vehicle was to his driver-side passenger sliding door. (

g) The parties exchanged information following the Accident. (

h) Edwin Mak is an independent witness to the Accident. (

i) Attached as Exhibit A are two pictures of Mr. Verhoeven’s vehicle that show the damage sustained due to the Accident. (Exhibit “A” is not attached to this Judgment.) (

j) Attached as Exhibit B are two pictures of Mr. Chan’s vehicle that show the damage sustained due to the Accident. (Exhibit “B” is not attached to this Judgment.) [ 3 ] Liability is in issue. [ 4 ] The Claimant was found 100% liable for the Accident by ICBC and disputes that finding. The Defendant denies any liability for the Accident. [ 5 ] The Claimant testified, as well as his passenger, Kristine Wu. Ms. Wu is the Claimant’s girlfriend. Although Ms. Cheng, counsel for the Defendant, challenged Ms.

Wu’s credibility because she is the Claimant’s girlfriend, I did not consider that relationship to have influenced her evidence. [ 6 ] Essentially, the Claimant says that while backing out his car from a parking stall at 8328 Capstan Way, Richmond, B.C., in a careful and prudent manner, he knew that his view was obstructed by a van parked to his immediate left.

On his first attempt to back out he noticed that an Audi automobile came quickly behind him and, therefore, he was able to stop and avoid a collision. [ 7 ] After the first attempt to back out from the parking stall, the Claimant says he was even more vigilant, looked behind to his left and his right, proceeded slowly and cautiously when his car was struck by the Defendant’s van. Ms.

Wu corroborates the Claimant’s evidence. [ 8 ] The impact, as depicted by the photographs in the Trial Statements, indicates that the Claimant’s back bumper hit the Defendant’s van at the driver’s side passenger door. [ 9 ] Both the Claimant and Ms. Wu testified that they did not see the Defendant’s van as the Claimant’s car was backing out of the parking spot. [ 10 ] The Defendant says he entered the parking lot and proceeded slowly, looking left and right to locate a vacant parking spot.

He says he proceeded cautiously and did not see the Claimant’s car until the impact took place. [ 11 ] Edwin Mak was called by the defence. He was an independent witness to the Accident. He was standing across the driving area in the parking lot, facing towards the Claimant’s vehicle. He says the parking lot was busy, and that he had a clear view of the Accident. He says he saw the Claimant attempt to back up in the first occasion and had to stop as a result of an Audi proceeding in the parking lot.

He confirmed that it was on the Claimant’s second attempt to back out that the accident occurred. [ 12 ] On the second attempt to back up, the Claimant’s Chevrolet Malibu and the Defendant’s Honda Odyssey were moving. Mr. Mak estimates that the Honda was moving between 10 – 20 km an hour, which is slightly a greater speed than Mr. Chan estimated. [ 13 ] Mr. Mak said that Mr. Verhoeven’s car was approximately one-half of the way out of the parking stall when the accident

occurred. He said that Mr. Chan’s Honda was not trying to squeeze by Mr. Verhoeven and was going in a straight direction. [ 14 ] During cross-examination, Mr. Mak agreed that the Audi had to use its horn, and Mr. Verhoeven’s car had not backed out halfway out of the parking stall. Mr. Mak confirmed that Mr. Chan’s car was highly visible to him, and that his vision was clear because the car in front of the Audi was moving slowly and nothing was blocking his line of sight to where the accident occurred. [ 15 ] Mr.

Chan said that he did not see the Claimant’s car backing out of the stall as he was driving in the parking lot. [ 16 ] The parties agreed that Mr. Verhoeven’s vehicle was in the fourth parking stall from the entrance to the driveway. [ 17 ] The Claimant says I should rely upon the decision of Ellis v. Bruch et al [2005] B.C.J. No. 1545 .

In that case, Madam Justice Arnold-Bailey found that both drivers of vehicles were 50% responsible for a collision which occurred while each were backing up. [ 18 ] I did not find this case to be helpful because in the case at bar, only one of the vehicles was backing up. [ 19 ] The Defendant relies on the case of Carson v. Henyecz 2012 BCSC 314 . At paragraphs 98 and 99, Madam Justice Hyslop says: [98]

Section 193 of the MVA imposes a high standard of care on a driver while reversing and “…must not in any event or at any place cause a vehicle to move backwards unless the movement can be made in safety.” [99] The duty imposed on a reversing driver is not just when the driver starts to reverse, but throughout the entire reversing procedure and to its completion. The object is to be aware as reasonably possible to what is behind the driver and in the driver’s path while in reverse. [ 20 ] I find this case to be instructive with respect to liability. [ 21 ] I do not find that the Claimant discharged the onus placed upon him pursuant to

Section 193 of the Motor Vehicle Act. The Claimant testified that his vision to the left was blocked, almost had an accident with the Audi that passed behind him during his first attempt to back out of the parking spot and, more importantly, he testified that he did not see the Defendant’s van. [ 22 ] There is no evidence that the Defendant was driving in a careless manner, or was speeding. In fact, the independent witness, Mr. Mak, testified that the Defendant was driving in a straight manner and proceeded slowly under the circumstances. [ 23 ] The onus is on the Claimant under

Section 193 of the Motor Vehicle Act . I find that onus was not discharged. [ 24 ] I conclude that the Claimant’s claim must be dismissed. [ 25 ] I decline to award costs to the Defendant as requested by Ms. Cheng as, to do so, may be a deterrent for other Claimants to challenge the finding of an adjuster. There was nothing in the actions taken by Mr. Verhoeven to cause any unnecessary delay or inconvenience to the Defendant. __________________________ Lawrence A. Kahn Adjudicator