Jackson v. Davies Date:, 2016 BCPC 383

Citation: Jackson v. Davies Date: 20161205 2016 BCPC 383 File No: C14506 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: BRUCE JACKSON CLAIMANT AND: EDWARD DAVIES DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing in person: Bruce Jackson Counsel for the Defendant: L. Karr Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: May 16 and October 11, 2016 Date of Judgment: December 5, 2016 INTRODUCTION

INTRODUCTION [1] In this Provincial Court civil action, the claimant Bruce Jackson (“Mr. Jackson”) seeks to recover damages from the defendantEdward Davies (“Mr. Davies”) to compensate him for vehicle damage he incurred in a motor vehicle accident that occurred on August25, 2013 (the “Accident”). [2] On that date, Mr. Jackson was driving his 1983 Porsche 911SC (the “Porsche”) westbound on the Brunette Avenue onramp,seeking to join westbound traffic on Highway No. 1. Mr. Davies was driving his 2009 Peterbilt semi-trailer (the “Peterbilt”) westboundin the far-right lane of Highway No. 1—the lane into which Mr.

Jackson wished to merge. [3] It is not in dispute that in the course of the merging manoeuvre, the front right bumper of the Peterbilt made contact with leftrear bumper and fender of the Porsche, causing it some body and structural damage. What is in dispute is what transpired in the secondspreceding contact and, in particular, whether: (

a) Mr. Jackson got the attention of Mr. Davies before he began to enter Mr. Davies’ lane; and (

b) Mr. Davies gave Mr. Jackson a signal indicating to him that he (Mr. Jackson) could proceed with his intended mergingmanoeuvre and pull into Mr. Davies’ lane in front of the Peterbilt with Mr. Davies’ knowledge and consent. [4] The evidence of Mr. Jackson as claimant differs markedly from that of Mr. Davies as defendant regarding these disputed facts. As matters now stand, the Insurance Corporation of British Columbia (“ICBC”), the insurer for both drivers, has determined,administratively, that Mr. Jackson was 100% responsible for the Accident.

This allocation of liability has adverse implications for thecost of Mr. Jackson’s insurance premiums going forward. [5] Mr. Jackson does not accept the administrative determination of liability that ICBC has made and asks the court, based uponthe relevant facts he urges the court to find, and the applicable law, to reverse that determination and find Mr. Davies wholly responsible,and thus fully liable, for causing the Accident. Mr.

Jackson further seeks to recover an award of damages to cover repairs he had madeto the Porche (that is, a complete re-spray) that go beyond those repairs that have already been performed to it and covered by ICBC forMr. Jackson on a no-fault basis. [6] Mr. Davies, represented by counsel appointed by ICBC, argues to the contrary that ICBC’s allocation of liability wholly to Mr.Jackson properly reflects the circumstances leading to the Accident. Further, Mr. Davies argues that the approved repairs that weremade to Mr.

Jackson’s Porsche under his ICBC coverage have fully compensated him for the losses that are attributable to the Accidentand that the unapproved costs of a complete re-spray are not recoverable, regardless of how liability for the Accident may ultimately bedetermined. LIABILITY The Relevant Legislation and Related Case Law [7] The statutory provision that is applicable to the facts of the case at bar is s. 151(

a) of the Motor Vehicle Act, R.S.B.C. 1996, c.318. It reads as follows: “151 A driver who is driving a vehicle on a laned roadway (

a) Must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained thatmovement can be made with safety and will in no way effect the travel of another vehicle …” [8] The case law that interprets this

section refers to drivers who seek to make a lane change (like Mr. Jackson) as being in a“servient position” whereas drivers who are already traveling in the target lane (like Mr. Davies) are described as being in the “dominantposition”. As can be seen from the plain words of the section, it was incumbent upon Mr. Jackson, as the servient driver for thepurposes of s. 151(a), to refrain from making a lane change into Mr. Davies’ lane “unless [he] … ascertained that movement [could] bemade with safety and [would] in no way affect the travel of [Mr. Davies’] vehicle”.

Generally speaking, the benefit of any doubt in thatregard should be resolved in favour of Mr. Davies (as the dominant driver): Pacheco (Guardian ad litem) v. Robinson (BC CA), [1993] B.C.J. No. 154 (C.A.) at para. 18. Did Mr. Jackson Ascertain that a Lane Change Could be Made with Safety and Without Affecting the Travel of the PeterbiltBefore Proceeding with his Lane Change? [9] Mr. Jackson’s evidence was that, before commencing his lane change, he made eye contact with Mr. Davies and waved at him,gesturing in effect to inform him that he wished to have Mr.

Davies’ permission to enter the westbound lane of Highway No. 1 ahead ofthe Peterbilt. He testified that Mr. Davies waved back at him, gesturing in effect that Mr. Jackson had his (Mr. Davies’) permission tomake the lane change and enter the lane in front of him. Mr. Jackson further testified that as he began to execute his lane changemanoeuvre he waved a second time at Mr. Davies to thank him for accommodating his gestural request to be permitted to enter the lanein front of the Peterbilt. [10] Mr. Jackson also testified that this non-verbal communication between him and Mr.

Davies was observed by his passenger andthen girl fiend, Colleen Fish (“Ms. Fish”). Both Mr. Jackson and Ms. Fish were, thus, wholly surprised and baffled, he said, when thePeterbilt kept rolling forward after the Porsche had partially entered the lane in front of it. At that point, Mr. Jackson panicked andsounded his horn but, to no avail. The Peterbilt ultimately collided with the Porsche, causing damage to its rear end. [11] Mr. Jackson went on to give evidence that when both drivers got out of their vehicles, there was initially a heated, emotionalexchange, and that in the course of further discussions Mr.

Davies apologised to him, saying that he had recently experienced some

trauma and, importantly, saying further that had “lost sight” of the Porsche. [12] Mr. Jackson argues that this latter-mentioned evidence confirms that he had ascertained that he could enter Mr. Davies’ lanesafely with Mr. Davies’ permission and without affecting the travel of the Peterbilt (to track the language of s. 151(a)), and that Mr.Davies, inexplicably, continued to roll forward and into the Porsche despite having signalled that he would make room for it. Mr.Jackson also argues that Mr.

Davies’ reference, after the collision, to having “lost sight” of the Porsche coupled with his apology amountto admissions of fault for the Accident. [13] Mr. Davies’ evidence on these important facts was dramatically different. He denies having ever seen the Porsche at any timebefore the Accident. He does recall another vehicle changing lanes into his lane shortly before the Accident, but he steadfastlymaintained that that was a different vehicle and that he never saw the Porsche until after the collision. Mr. Davies also steadfastly denieshaving seen or participated in any waving or gesturing with Mr.

Jackson as the driver of the Porsche, and while he admits that heapologised to Mr. Jackson, he says his apology was “for ruining [his] car” (as Mr. Jackson, himself, and his witness, Ms. Fish, both putit: see Trans., May 16, 2016 at pp. 47 and 54) and not for causing the Accident. Mr. Davies was also adamant in his testimony that hedid not say anything to Mr.

Jackson about having “lost sight” of the Porsche; rather, he reiterated a number of times that he never saw thePorsche before the Accident occurred. [14] With such widely differing accounts of critically important facts, it is important first to recall where the onus of proof lies. Mr.Jackson is the claimant in this proceeding and thus he has the burden of proving his civil case against Mr. Davies. He must prove whathe alleges on a balance of probabilities. In particular, as the servient driver under s. 151(a), he must prove on a balance of probabilitiesthat before entering Mr.

Davies’ lane, he “ascertained that movement [could] be made with safety and [would] in no way affect the travelof [Mr. Davies’] vehicle”. [15] In determining whether Mr. Jackson has discharged his burden and proven that he made his lane change safely and inconformity with the requirements of s. 151(

a) as he contends, I must (of course) give consideration to Mr. Davies’ radically differingtestimony. Moreover, I must scrutinise Mr. Jackson’s evidence, and that of his witness, Ms. Fish, and be watchful for inconsistenciesthat might cause me to question the accuracy of Mr. Jackson’s recollection of the relevant events. Beyond that, I must ask myself, whenfaced with two such differing accounts of the same events, whether one or the other of those accounts makes more sense. [16] In this latter regard, I find that a passage in an often-cited case called Faryna v. Chorny, (BC CA), [1952] 2D.L.R. 354 (B.C.C.

A) provides helpful guidance for assessing the credibility and internal and external consistency of conflicting witnesstestimony. In that case, O'Halloran J.A. said the followig at p. 357: "[T]he real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a practicaland informed person would readily recognize as reasonable". [17] Starting there, I will say that the version of events that Mr. Jackson asks the court to accept is problematical because, on itsface, it is inherently improbable.

It seems exceedingly unlikely that, having just seconds earlier given Mr. Jackson the go-ahead to enterhis lane, Mr. Davies would continue to roll forward once he had partially done so and collide with the Porsche. These things allhappened within a matter of a few seconds. Why would someone in Mr. Davies’ position, having just signalled to Mr. Jackson that hecould enter the lane in front of him, roll forward and collide with his Porsche? It is much more likely, in my respectful view, that Mr.Davies would have continued to roll forward in his Peterbilt because, as he testified, he did not see the Porsche. Mr.

Davies’ actions do“make sense” however if, as he testified, he made room for another vehicle that sought to enter the traffic, saw it do so and then beganmoving forward himself again without seeing Mr. Jackson’s second, low-slung vehicle begin to enter his lane behind the first one. [18] Beyond that, Mr. Jackson’s case has other serious problems. His evidence was not wholly consistent, either internally or withthat of his witness, Ms. Fish, on factual points that are important to the question of liability for the Accident. For example: (

a) Several times during his testimony Mr. Jackson said he waved “three times” in the course of the nonverbal exchange he said hehad with Mr. Davies; just as often he referred in his testimony to an interaction with Mr. Davies in which he only waved twice; (

b) Mr. Jackson’s recollection with respect to whether his own vehicle was moving or stopped at the time of the Accident was notthe same at trial as it was when he gave a statement to ICBC; (

c) Mr. Jackson’s testimony sometimes was to the effect that he had completed the merging manoeuvre when the Accident occurred(see, for example, Trans., May 16, 2016 at p. 26). At other times it was to the effect that the merging manoeuvre was in progress but wasnot completed when the Accident occurred (see, for example, Trans., May 16, 2016 at pp. 26-27, 28 and 50); (

d) A key aspect of Mr. Jackson’s testimony was that he first got the attention of Mr. Davies by waving at him, in effect seeking hispermission to enter his lane in front of the Peterbilt. That, he said, was followed by a wave back from Mr. Davies giving the go-ahead,leading to a third, “thank-you” wave back to Mr. Davies from Mr. Jackson. However, neither Mr. Jackson’s first wave in that reportedsequence, nor Mr. Davies’ wave in response, figure at all in Ms. Fish’s testimony. Rather, her evidence leaves the clear impression thatwhat occurred was that Mr.

Jackson did a couple of shoulder checks before entering Mr. Davies’ lane, and that the only wave came infact from Mr. Jackson and it was a “thank you” wave: “… It's a convertible vehicle. There was no hindrance of his view so he checked his blind spots to ensure that there was adequate spacefor him to merge into the left lane, as was required, because the pylons were now in front of us. We could not move forward anymore. And so as he did that, he look over his shoulder and when he made the merge, he looked over his shoulder again.

There was adequate space, several car lengths between us and the truck that was behind us. Now, because traffic was at a stop/start, wecouldn't complete the lane change because traffic was not moving in front of us so what had end up happening is, although we were inthe lane almost entirely, we weren't straight in the lane, we were on an angle still, we still had to straighten out, as traffic would allow usto do.

So at this point, Bruce once again made eye contact with the driver to ensure, you know, he's -- you know, of his surroundings. At that point, he actually did wave at the driver. I don't remember if it was over his right shoulder or over his left shoulder but it was a very deliberate thank you for letting me in . ” ( Trans ., May 16, 2016 at p. 53, emphasis added) (

e) Another key aspect of Mr. Jackson’s evidence—in effect, evidence of a prior consistent statement on his part—was his testimony that, when expressing his upset with Mr. Davies after the parties had gotten out of their vehicles, he referred to Mr. Davies having waved him in ( Trans. , May 16, 2016, at pp. 17, 25 and 47). Ms. Fish also testified in detail about the discussion between the parties at roadside, however, and no mention of the subject of waving figured at all in her evidence in that regard; (

f) Still another key aspect of Mr. Jackson’s testimony was that Mr. Davies made a roadside admission that contradicted his testimony at trial that he (Mr. Davies) never saw the Porsche before the Accident. Mr. Jackson contends that Mr. Davies said to him, at the roadside, “I’m so sorry. I lost sight of you” ( Trans. , May 16, 2016 at p. 16). If true, that would indeed be an important admission and one that would be problematical for Mr. Davies’ defence. However, Ms. Fish was present during the conversation that Mr. Jackson had with Mr.

Davies and, as I have noted, she gave a detailed account of her recollection of it: see Trans ., May 16, 2016 at p. 54). Ms. Fish makes no mention whatsoever of Mr. Davies having said anything like “I lost sight of you”—an admission going to fault and liability that one would expect to lodge firmly in her mind. [ 19 ] Recalling that Mr. Jackson bears the onus of proving that Mr. Davies is liable for the Accident and for proving that his own conduct was consistent with his obligations under s. 151 (

a) of the Motor Vehicle Act , can it fairly be said that he has discharged that onus? I conclude that it cannot, given: (

a) Mr. Jackson’s contention that, after waving him in, Mr. Davies simply rolled forward and collided with his Porche, does not “make sense” on the Faryna v. Chorny formulation. That is, his contention is not “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances of the Accident; and (

b) Mr. Jackson’s own evidence on points important to liability differed at different times in the telling and, equally importantly, his evidence on crucial points was neither consistent with, nor corroborated by, the evidence of his witness Ms. Fish. [ 20 ] These same problems do not plague the evidence given by Mr. Davies. His version of events—in which he said he allowed a different vehicle to enter the lane in front of his Peterbilt but never saw the Porsche try to merge into that lane too—seems more likely to be accurate on a common sense level. It makes more sense that Mr.

Davies would roll forward into a Porsche he didn’t see than that he would roll forward into a Porsche he not only saw but waved in. Mr. Davies’ testimony was clear and unwavering. Unlike that of Mr. Jackson, it did not differ at different times in the telling and there was no other evidence given on his side of the case that contradicted it. [ 21 ] For all of the foregoing reasons, I conclude that I must accept the evidence of Mr. Davies over that of Mr. Jackson to the extent of divergences on points of fact that go to the question of liability. If follows, accordingly, that—tracking the language of s. 151(

a) of the Motor Vehicle Act —I find that, before entering Mr. Davies’ lane on August 25, 2013, Mr. Jackson failed to “ascertain” that his lane change “movement” could be made “with safety” and that it would “in no way affect the travel” of Mr. Davies’ Peterbilt. I find that Mr. Jackson initiated that lane change after another vehicle in front of him had done so—in effect, violating a well-known custom of merging in an alternating fashion—and that Mr. Davies never saw, and could not see, his Porsche “nip” into the lane in front of him at any point before the Accident occurred. [ 22 ] In those circumstances, Mr.

Jackson must be held 100% at fault, and therefore wholly liable for, the Accident. DAMAGES [ 23 ] I will deal very briefly with Mr. Jackson’s claim for damages. It stems, principally, from his contention that to achieve the desired uniformity in colour and appearance, the Porsche had to be fully re-sprayed after the body and structural repairs to it (including painting) that were approved by ICBC were completed. [ 24 ] Mr.

Jackson acknowledges that ICBC underwrote the cost of repairing body and structural damage to his vintage vehicle resulting from the Accident, including the respraying of rear end parts of the body. He says simply that after that work was done he was unsatisfied with the end result, noting that the paint’s appearance was not exactly the same in all areas. Accordingly, Mr. Jackson chose to spend his own money to have the Porsche re-sprayed in its entirety after ICBC had finished with it and he now seeks to recover that additional expense as damages in this action. [ 25 ] During his evidence-in-chief Mr.

Jackson candidly described himself as a “perfectionist.” Indeed, he went so far as to admit that he had the Porsche wholly re-sprayed because he is a perfectionist . That was confirmed in this passage of his cross-examination, found at Trans. , May 16, 2016 at p. 45: “Q And you've said in your direct evidence that the reason you got the car re-painted was because you're a perfectionist? A Correct. Q And that you weren't happy with the idea that part of the vehicle had older paint and part had newer paint. A Correct. Q Is that correct?

A Yes.” [ 26 ] The evidence at trial make it very clear that there were paint chips and scratches in numerous places on Mr. Jackson’s vehicle

that could not be traced to the Accident at issue in this action and, to his credit, Mr. Jackson was clear that he was not seeking to recover in damages in this action anything that would have been aimed at compensating for those pre-existing, cosmetic problems. Nonetheless, it is plain to the court from the evidence adduced at trial that, going into the accident, the Porsche was far from perfect. Re-spraying the entire Porsche would have had the effect of providing to Mr.

Jackson a vehicle, post-Accident, that would have been free of those many pre-existing cosmetic problems and, thus, a good deal closer to perfect than it was before the Accident. It should be obvious that for the court to award Mr. Jackson damages to cover the cost of a complete re-spray would over-compensate him for the damage resulting from the Accident. [ 27 ] Neither am I persuaded, on the evidence, that the differences in appearance between the areas re-sprayed during the course of the repairs that ICBC did cover and the other areas unaffected by the Accident were as significant as Mr. Jackson contends. Mr.

Davies’ counsel is correct when she argues that the repairs that were done to the Porsche under ICBC coverage before Mr. Jackson’s self-funded, entire-vehicle re-spray “were sufficient to maintain the Porsche’s collector status and there is no evidence that the vehicle was otherwise reduced in value”. [ 28 ] That what Mr. Jackson is seeking goes beyond that and crosses over the boundary that separates reasonable requirements from the expectations of a perfectionist is made plain by Exhibit 6. That is the document Mr.

Jackson signed upon receiving the Porsche back from the repairers before any talk of total re-spray had begun. His signature appears below a line that reads as follows: “I, Bruce Jackson, the registered owner, or representative, of the above described vehicle which was damaged in an accident on or about the 25 day of August 2013 state the above vehicle appears to have been repaired satisfactorily .” (emphasis added) [ 29 ] Mr.

Jackson cannot recover damages in this action to compensate him for expenditures he made to take the state of his already- repaired Porsche beyond having been “repaired satisfactorily” to a state of near perfection. DISPOSITION [ 30 ] For all of the foregoing reasons, Mr. Jackson must be held 100% liable for the Accident and his claim for damages in this action must be, and is, dismissed. [ 31 ] Orders accordingly. ______________________ Thomas S. Woods, P.C.J.