Top Sign Taxi Ltd. - v. -, 2015 SKPC 006

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: January 8, 2015 Citation: 2015 SKPC 006 File: File # 446/14 Location: Regina, Saskatchewan Between: Top Sign Taxi Ltd. - and - Craig Verbeek Muhammad Bhutta For the Plaintiff Craig Verbeek For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] The plaintiff brings this negligence action against the defendant seeking damages arising from a motor vehicle accident which occurred about one hour after midnight on Sunday, September 13, 2014. The accident occurred at the intersection of Saskatchewan Drive and Broad Street in the City of Regina, about 200 metres away from the Regina City Police headquarters.

[ 2 ] The plaintiff has authorized the driver of its vehicle to act as its agent in these proceedings. His name is Muhammad Bhutta. His native language is Urdu and he presented at trial with an interpreter to assist. [ 3 ] The defendant has denied that he was negligent either in whole or in part. He does not dispute the quantum of damages claimed, which is in the sum of $700.00, and which constitutes the cost of the plaintiff ’ s insurance deductible. Evidence [ 4 ] Mr. Bhutta says that he drives a taxi for a living and that he started his shift at or about 4 p.m. on Saturday afternoon, September 12 th .

At approximately 1:00 a.m. he was driving south on Broad Street and approached the Saskatchewan Drive intersection. Saskatchewan Drive intersects with Broad Street on an east-west axis. [ 5 ] The intersection is large. Traffic proceeding south on Broad Street at that intersection can choose one of four lanes. The first lane is the left hand turning lane which allows traffic to turn east onto Saskatchewan Drive. The second lane is beside the left hand turning lane and proceeds southbound through the intersection. The third lane is beside the second lane and also proceeds southbound through the intersection.

The fourth lane is a right hand turning lane allowing traffic to proceed westbound onto Saskatchewan Drive. There is an identical set of four lanes northbound. The southbound and northbound lanes are separated by a concrete median. Saskatchewan Drive is set up much the same way with left hand and right hand turning lanes and two through lanes of traffic running both east and west with a concrete median separating the direction of travel. [ 6 ] Mr. Bhutta says that as he approached the intersection he was in the second lane of southbound travel.

He says that he stopped for the red light and when the light turned green he proceeded to enter the intersection. He says traffic was light. With the exception of a vehicle turning left there were no other vehicles proceeding either north or south on Broad Street. [ 7 ] Mr. Bhutta says that he had proceeded approximately half way through the intersection when he noticed the defendant ’ s car to his right which was proceeding eastbound on Saskatchewan Drive into the intersection and travelling at a high rate of speed in the most southerly through lane of traffic.

He estimates that the defendant ’ s car was travelling at 70 to 80 kilometres per hour. [ 8 ] Mr. Bhutta says that he first saw this car when it was five to six feet away from him. He tried to brake but he was unsuccessful in stopping on time. As a result, the passenger ’ s side front corner panel and bumper of his vehicle struck the defendant ’ s driver ’ s side door. The collision forced both vehicles a distance of perhaps one half of a car length to the east and south of the point of collision, where they came to a rest. [ 9 ] Mr.

Bhutta has submitted photographs of his damaged car and an estimate of the cost of repair. These exhibits confirm the damage to the plaintiff ’ s vehicle. [ 10 ] Mr. Bhutta says that at the time of the collision he was travelling at approximately 20 to 25 kilometres per hour. He steadfastly maintains that he was travelling at a reasonable and prudent speed through the intersection on a green light. Conversely, he says, the defendant was driving well in excess of the speed limit and entered the intersection on a red light.

On that basis, he alleges that the defendant operated his vehicle in a negligent fashion and that this negligence was the sole and proximate cause of the collision. [ 11 ] The defendant, Mr. Verbeek, tells a different story. He says that on the evening in question he was at a friend ’ s house on the west side of Regina watching a baseball game and then a movie. At about 12:30 a.m. or so he left his friend ’ s house with the intention of driving home. [ 12 ] He says that he had not consumed any alcohol that evening.

He was proceeding east on Saskatchewan Drive and as he approached the Broad Street intersection he noted that he was presented with a green light and had been presented with that green light for some time. He confirms that traffic was sparse and he can not recall any other vehicles at or near the intersection as he approached it.

[ 13 ] Mr. Verbeek confirms that he was in the most southerly through lane of eastbound traffic as he approached the intersection. He says that he was travelling at about 55 kilometres per hour. He says that as he entered the intersection he saw a flash of headlights from the north and then his vehicle was struck broadside primarily on his driver ’ s side door. He acknowledges the approximate location of the collision but places it about a car length north and east of where Mr. Bhutta says it happened. [ 14 ] Mr. Verbeek confirms the location of the damage on each vehicle.

He further states that there was a significant crush to his door resulting in shattered glass. He further states that immediately following the accident both his left arm and shoulder were covered in blood. He did not provide any photographs or damage estimates in relation to his vehicle. He defends this action alleging that it was he, and not Mr. Bhutta who had the green light. He says that his speed was not so excessive as to suggest that he was driving in a negligent fashion. [ 15 ] The evening in question was late summer. It had not been raining. There was no fog. Weather and road conditions were excellent.

Mr. Verbeek offers no explanation as to why he did not see the plaintiff ’ s vehicle until his vehicle was hit. Mr. Bhutta offers no explanation as to why he did not see Mr. Verbeek ’ s vehicle until a scant six feet before the collision. [ 16 ] There were no independent witnesses to the accident. [ 17 ] There is no question that Mr. Bhutta was well into and more then half way through the intersection when the collision occurred. Comparatively speaking, Mr. Verbeek was slightly more than one car length into the intersection. [ 18 ] I admit to having some concern with Mr.

Bhutta ’ s recollection of the speed of the Verbeek vehicle. He is comfortable with his assessment of that speed, because, he says, as an experienced cab driver, he can make these kinds of assessments rapidly. I put that speed of assessment to the test with Mr. Bhutta at trial. A car travelling at between 70 and 80 kilometres per hour travels between 63 and 73 feet per second. Mr. Bhutta says he saw the car a scant 5 to 6 feet away from him before the collision. He therefore had, at best, 1/10th of a second to see the Verbeek vehicle, analyze its speed and start to apply the brakes. Because Mr.

Verbeek says that he did not take any evasive action before his vehicle was hit, I am at a loss to explain how, according to Mr. Bhutta, both vehicles could come to a complete stop, less than a car length from the point of collision. Mr. Bhutta suggests that good brakes might do the trick. I doubt that. [ 19 ] I suspect that Mr. Bhutta ’ s recollection of the speed of the other vehicle is an honest but mistaken belief.

While I do not think it would have been possible for the Verbeek vehicle to be travelling at that speed and come to a stop within a half to one car length away from the collision site, I place little weight on Mr. Bhutta ’ s over statement.

In my experience it is not unusual in motor vehicle accident trials for a witness who was personally involved in the collision to either relate the respective speeds of the vehicles in question with unerring accuracy, which is most unusual; or recall the speeds in a kind of slow motion, which is less unusual; or to recall the accident in an accelerated way, which is a far more typical recitation of the evidence. [ 20 ] Mr. Bhutta presented his evidence through an interpreter, but I have no reason to doubt the veracity of the evidence he gave, subject to the speed of the Verbeek vehicle.

I cannot however say the same for the evidence of Mr. Verbeek. He did not present well. He was tentative in his explanation as to what transpired well before the accident, and offered his version of what transpired in the couple of seconds immediately prior to the accident in a clipped and terse manner. He gave no explanation as to why he did not see the Plaintiff ’ s vehicle prior to the collision notwithstanding that it was well into the intersection before Mr.Verbeek entered. [ 21 ] My concern regarding his evidence is magnified by virtue of the bizarre story that unfolded following the accident. [ 22 ] Mr.

Bhutta says that following the accident, he got out of his vehicle and contacted his dispatcher to report the accident and seek his assistance. He took a couple of pictures of the vehicles and as he was talking to Mr. Verbeek, he noticed the strong smell of alcohol emanating from Mr. Verbeek and his vehicle. [ 23 ] Mr. Bhutta says that he then phoned the police and as soon as he mentioned the word alcohol Mr. Verbeek jumped into his car and drove away before sharing his driving information. Mr. Bhutta so advised the police and was told that an officer would attend the accident scene.

[ 24 ] Constable Mills of the Regina Police Service attended Court and confirmed that calls were received by the police at or about the time of the accident and that officers were dispatched based on the caller ’ s assertions of someone fleeing the scene of the accident and the involvement of alcohol. [ 25 ] Constable Mills further advised the Court that he had attempted to locate Mr. Verbeek and his car immediately after the accident but without success. He continued to investigate the matter in the ensuing weeks by calling on and enquiring of Mr. Verbeek ’ s family members.

Constable Mills says that he was finally able to locate Mr. Verbeek on the day before the trial of this action, (more than three months post accident) and presented him with a ticket for leaving the scene of the accident. [ 26 ] Mr. Verbeek acknowledges that he left the scene of the accident before sharing his driver ’ s information. He denies that he left because he overheard Mr. Bhutta talking to the police about alcohol. He says, rather, that he felt that because Mr. Bhutta had photographed his license plate, Mr. Bhutta had all the information he needed and he simply chose to leave at that point.

As an after thought he pointed out that he usually keeps his driver ’ licence in his drivers side door pocket. Since his door was smashed in the accident, he says he could not locate his licence for five days. This ex post facto justification means nothing to the Court. It is clear that he did not at any time attempt to locate it at the time of the collision. [ 27 ] Mr. Verbeek acknowledges that he was injured in the accident, yet he did not advise the Court as to whether or not he attended for medical treatment.

He acknowledged that he knows he must share his driver ’ s information following a collision, but he did not. He knows that if someone is involved in a motor vehicle accident and is injured that the police should be contacted to attend, yet he fled the scene. [ 28 ] Mr. Verbeek took five days to report the accident to SGI. In addition, he knew within a couple of weeks that the police were looking for him and he chose not to attend on the police voluntarily. [ 29 ] As I compare the evidence and the actions of each of these parties, I must say that I prefer the evidence of Mr. Bhutta.

His evidence was clear and convincing and consistent with what the Court believes a careful and prudent vehicle operator would and should do. I cannot say the same in relation to Mr. Verbeek. Keeping in mind that this accident happened within a half block of the Regina Police headquarters, one would have thought that a reasonably prudent driver, who had been hit broadside at an intersection through no fault of his own, who had not been drinking prior to the accident, and who had been injured in that accident, would have been, at the least, indignant.

That person at the very least would have stayed at the accident scene and exchanged information, and, rather then leaving at the first mention of alcohol, taken it upon himself to contact the police. [ 30 ] Mr. Verbeek ’ s response to this is to simply assert that he is on a work leave of absence due to depression and didn ’ t want have to deal with the issue. [ 31 ] Arguably either of Mr. Bhutta and Mr.Verbeek may have been presented with a green light.

The absence of an independent witness, or compelling physical evidence to ascertain one version or the other makes it difficult to determine which version is correct. This case turns, therefore, on which of the two parties are the more credible. I find Mr. Bhutta to be a more credible witness. I have no reason to doubt the speed of his vehicle. That speed is consistent with a vehicle which had come to a stop and was starting to accelerate through the intersection. Following the accident, he did precisely what a reasonable and prudent person would do. He contacted his dispatch and then police.

He took photos of the scene and sought to exchange driver information. This reasonable and prudent course of action reinforces my assessment of his credibility. [ 32 ] Conversely, Mr. Verbeeks suggestion that he had the green light for an extended period of time and his absolute failure to observe the plaintiff ’ s vehicle travelling through the intersection at a reduced rate of speed, and his subsequent failure to take any evasive manoeuver whatsoever, suggests a distinct lack of attention at the time of the accident.

His decision to flee the accident scene and subsequent failure to report the accident until five days later and then avoid the police notwithstanding that he knew they were looking for him is simply inconsistent with his suggestion that he was, presumably, a sober and careful and reasonably prudent driver who had been the innocent victim of another party running a red light. [ 33 ] While Mr. Verbeeks ’ s actions subsequent to the accident cannot, in my view, be used as some consciousness of guilt, they can be

considered by me in assessing his over all credibility and I find that credibility wanting. I believe those subsequent actions were predicated on his appreciation that he was drinking alcohol prior to the accident and wanted to ensure that the police could not confirm this. I believe that his willingness to misrepresent his evidence taints the remainder of his evidence and adversely affects its reliability. [ 34 ] I am satisfied on a balance of probabilities that Mr. Bhutta entered the intersection on a green light and that Mr. Verbeek was not paying attention to the lights at the intersection.

I am satisfied, that, more likely than not, he entered into the intersection on a red light and that this negligent conduct caused the accident. I conclude that Mr. Verbeek is one hundred percent at fault for the accident. [ 35 ] The plaintiff has been successful in his action. I award him his costs in the sum of thirty-five dollars to offset the cost of filing and service of his claim. [ 36 ] I will hold in abeyance for ninety days an assessment of damages. Each party is directed by this Court to forward a copy of this decision to SGI.

SGI will, if necessary, amend its records to reflect the decision of this Court. In so doing it is expected that any deductibles paid by either party in this matter will be amended to reflect the decision of this Court. If that has not occurred within ninety days Mr. Bhutta is at liberty to bring an application back to this Court for an assessment of his damages. P. Demong, J