Uppal Lavjinder - v. -, 2014 SKPC 208

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: December 9, 2014 Citation: 2014 SKPC 208 File: File # 461/13 Location: Regina, Saskatchewan Between: Uppal Lavjinder - and - Jason Stenko Parampal Masoun For the Plaintiff Jason Stenko For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] On November 4, 2013 at approximately 6:45 p.m., a taxi and a minivan were involved in a motor vehicle accident on 13 th Avenue in the City of Regina. [ 2 ] Uppal Lavjinder is the registered owner of the taxi. It was being driven by Parampal Masoun, with Mr. Lavjinder ’ s consent. Nicole

Stenko was the owner of the minivan and it was being driven by Jason Stenko with her consent. [ 3 ] Both vehicles sustained damage in the collision. Mr. Lavjinder brings action against Jason Stenko and alleges that the accident was caused by his negligence. He seeks damages in the sum of $700.00, constituting the insurance deductible paid to have his taxi repaired. [ 4 ] Mr. Lavjinder has authorized Mr. Masoun to act as his agent in these legal proceedings. Law [ 5 ] The quantum of damages sought by the plaintiff is not in dispute.

Liability is in dispute and therefore the plaintiff carries the burden of proving, on a balance of probabilities, that this accident occurred as a result of the negligence of Mr. Stenko, either in whole or in part. The plaintiff can meet this burden if he can convince the Court that Mr. Stenko failed to exercise the same manner of caution as a reasonably careful and prudent driver would exercise in similar circumstances. [ 6 ] The only witnesses to the accident are Mr. Masoun and Mr. Stenko. Each of them tell a very different version of how the accident occurred.

In such a situation the Court must assess the credibility of the parties based on, among other things, their demeanour, their vantage point, the accuracy and acuity of their recollection, and the plausibility of their respective versions of the accident in the context of the physical evidence tendered at trial. Evidence [ 7 ] Both parties agree that the accident happened at about 6:45 p.m. on November 4, 2013. Both agree that it was getting on towards evening.

Both agree that the roads were icy and slippery and that there was some slight accumulation of snow in the curb lane of 13 th Avenue and along the centre of 13 th Avenue. The snow was not so thick that it impeded travel in the curb lane of 13 th Avenue. Both parties agree that the accident occurred approximately ten car lengths or so west of the Lewvan Drive intersection. The photographs tendered at trial confirm the description of the road. [ 8 ] Mr. Masoun says that he was travelling southbound on Lewvan Drive and approached the 13 th Avenue intersection on a red light.

It was his intention to turn right (westbound) onto 13 th Avenue and moved into the curb lane on Lewvan to effect that turn. He says that even though the light was red, and even though he knew he could turn right on the red light, he waited until the light turned green because this is his stated habit. [ 9 ] 13 th Avenue allows for two way traffic eastbound and westbound and the road is wide enough to allow for two lanes of traffic in each direction. Mr.

Masoun says that when the light turned green he effected his right-hand turn and drove the taxi into the northern most westbound lane of traffic on 13 th Avenue (the curb lane). [ 10 ] He says he was proceeding slowly in that lane when suddenly and without notice to him, the vehicle operated by Mr. Stenko hit his taxi. Mr. Masoun did not see the Stenko vehicle prior to the accident, but invites the Court to conclude that the accident happened when Mr. Stenko tried to pass the taxi, lost control and collided with it. [ 11 ] Mr.

Masoun tells the Court that the vehicles collided at or near the imaginary line which would separate the median and curb lanes of westbound traffic. [ 12 ] Photographs of the damage to each vehicle were submitted into evidence. The damage to the taxi is located just above and then forward of the driver ’ s side front tire and then along that front corner panel up to and including a portion of the front bumper. There is no evidence of significant scratching or marring along the body of the taxi other then as described above.

[ 13 ] Damage to the Stenko vehicle is located in a similar position as the damage to the taxi except that it is located on the passenger ’ s side of that vehicle. Again, there is no evidence of scratching along the length of the Stenko vehicle. The damage to both vehicles resembles more of a crush than a side long scrape. [ 14 ] As I look to the photographs of the damage to the two vehicles, I have some trouble trying to ascertain how the damage noted therein can match up to a vehicle attempting to pass another and colliding with it.

In addition, I would have expected to see some evidence of a debris field at the location described by Mr. Masoun but this was not provided to the Court notwithstanding that photographs of the vehicles were taken by the parties at the accident site. The damage to each vehicle is easily discernable and that damage is significant. I would have thought that pieces of one or both vehicles together with whatever accumulated ice and snow that would have existed on the undercarriage of the vehicles would have dropped at or near the location of the collision described by Mr. Masoun. [ 15 ] Mr.

Stenko ’ s version of the accident is different. He says that he was driving westbound on 13 th Avenue and had stopped for the red light at the Lewvan Drive intersection. When the light turned green he accelerated in normal fashion through the intersection. He then continued west on 13 th Avenue all the while driving in the median lane of westbound travel. [ 16 ] He says that he was travelling at between 20 and 25 kilometres per hour as he approached the taxi (which was in the curb lane to his right). Suddenly the taxi attempted to change lanes in an apparent attempt at a U-turn. Mr.

Stenko says that the taxi did not give any warning of this manoeuvre either by activating its signal light or otherwise. [ 17 ] Mr. Stenko says that his immediate reaction was to veer to his left in an effort to move around the taxi. He says that the two vehicles collided in the middle of the two eastbound lanes of travel slightly closer to the curb than the centre of the road. He says the passenger ’ s front corner of his vehicle struck the taxi directly on the driver ’ s side front corner. [ 18 ] Mr.

Stenko says that when he hit the taxi, the taxi was at an almost 90 degree angle on the road, its nose pointing directly south. This, he says, gives credence to his suggestion that it was attempting a U-turn in the middle of the road. In support of his contention he has provided photographs that he took immediately after the collision.

In particular, he has provided a photograph which shows the accumulation of debris (dirty snow and what looks like small bits of damaged car panel and glass) which is located in the middle of the two eastbound lanes of travel slightly closer to the curb then the centre of the road. [ 19 ] Mr. Stenko has submitted another series of photographs which show fresh tire tracks crossing the centre of 13 th Avenue moving from the curb lane of 13 th Avenue westbound across the centre of the road directly to the location of the debris referred to above.

He invites this Court to conclude that these tracks were left by the taxi as it started to effect its U-turn manoeuvre, and immediately before the collision took place. Analysis [ 20 ] Mr. Masoun is adamant that the accident happened in the westbound lanes of travel. I must admit to having a real difficulty in accepting this version of the accident. I simply cannot see how the front corner of Mr. Stenko ’ s vehicle could have contacted the taxi at the driver ’ s side front corner panel based on the description given by Mr. Masoun.

As indicated, there are no scratches along the body of the taxi and the photographs show damage which appears much more consistent with a direct (rather than a glancing) blow to the body of the taxi. [ 21 ] In addition, if the accident happened where Mr. Masoun suggests, I would expect that the significant jarring incidental with this crash would have left debris on the road directly below, or at least in the very near vicinity of where the vehicles struck each other.

As indicated, there was no evidence of this. [ 22 ] Comparatively speaking, the tire tracks shown in the photographs provided by the defendant clearly cross over to the eastbound

lanes of travel and run right up to the debris field located in the eastbound lanes of travel. In addition, the damage to the vehicles look like a crush type of collision. There is no apparent or at least discernible scratching that one would expect to see if two cars were in motion side by side at the time of a collision. Finally, the debris field is almost precisely where Mr. Stenko says the two vehicles collided. Simply put, the photographic evidence is entirely consistent with Mr. Stenko ’ s version of the events and inconsistent with Mr. Masoun ’ s version of the accident. [ 23 ] Mr.

Masoun would invite me to believe that the tire tracks arose after the collision when he moved his vehicle to an alley which was very near the accident site and to the south of 13 th Avenue. He would invite me to also conclude that the debris field is located there because this debris fell off his vehicle as he was moving it to the alley. [ 24 ] While I suppose this is possible, it seems most unusual that no debris would be located where Mr.

Masoun says the accident took place, and that then all or most of the debris would thereafter drop to the ground at a single location on the road at a different location, which is, incidentally, at the precise location where Mr. Stenko says the accident happened. [ 25 ] On consideration of the evidence, I am satisfied that the accident happened in the manner explained to me by Mr. Stenko. All other things being equal, it is far more plausible in the context of the physical evidence presented at trial. [ 26 ] I conclude that Mr.

Stenko was driving westbound in the median lane of 13 th Avenue on icy streets below the posted speed limit when, without notice, Mr. Masoun crossed into his lane in an apparent attempt to make a U-turn or access the alleyway on the south side of 13 th Avenue. Mr. Stenko then veered away and to the left in an effort to avoid a collision, but was unsuccessful and in the result collided with the taxi in the eastbound lane of 13 th Avenue. [ 27 ] Mr. Masoun has not convinced me that Mr. Stenko acted in a manner that was negligent in any way. He was driving at a speed commensurate with the road conditions.

When confronted with a vehicle suddenly moving into and across his lane of travel, he swerved in a direction which he felt was least likely to result in a collision. [ 28 ] Mr. Stenko cannot be faulted simply because a collision occurred. The collision occurred because Mr.

Masoun gave no notice whatsoever of his intention to move his taxi from the curb lane westbound travel into the eastbound lane of travel on 13 th Avenue when he knew or ought to have known that in so doing he would force the vehicle behind him to take immediate and evasive action. [ 29 ] I find that this accident arose entirely by virtue of the negligent actions of Mr. Masoun and I dismiss the claim against Mr. Stenko. [ 30 ] Mr. Stenko is entitled to his costs in successfully defending this action. As he is resident in Regina, I suspect that his out of pocket expenses are nominal.

If he seeks costs, he may bring an application to this Court with notice to Mr. Lavjinder on or before January 5 th . If that application is not brought within that time then no costs shall be awarded. [ 31 ] Each of the parties to this action are directed to provide a copy of this written decision to Saskatchewan Government Insurance so that it may, if necessary, amend its internal records to reflect the decision of this Court. P. Demong, J