Tough v. I.C.B.C. and Gannon Date:, 2010 BCPC 307

Citation: Tough v. I.C.B.C. and Gannon Date: 20101119 2010 BCPC 0307 File No: C79571 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ERIC TOUGH, an infant by his litigation guardian ROBERT ENNS CLAIMANT AND: THE INSURANCE CORPORATION OF BRITISH COLUMBIA DYLAN GANNON DEFENDANTS AND: REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.K. WALLACE Counsel for the Claimant: Self-represented by Guardian, Robert Enns Counsel for the Defendants: Patricia Gartner Place of Hearing: Kelowna , B.C.

Date of Hearing: July 30, 2010 Date of Judgment: November 19, 2010 [ 1 ] This is a claim as a result of a motor vehicle accident which occurred on December 10, 2007, at approximately 6 p.m. at the intersection of Springfield and Spall Roads, here in the City of Kelowna. This is a traffic-light controlled, four-way intersection, with two lanes of travel in each direction plus a separate left turn lane. [ 2 ] At the time it was dark and the street lights were on. The roads were wet but there was no precipitation.

Traffic was light. [ 3 ] The Claimant, Eric Tough, was driving his 1987 Honda Accord eastbound on Springfield travelling towards Rutland. He intended to turn left onto Spall but the light was red at that intersection when he arrived there. He moved into the marked left turn lane and stopped behind the stop line. When the light turned green, he moved into the intersection, with his signal on.

There was oncoming traffic so he remained stopped in the intersection. [ 4 ] He testified that when the light turned yellow, he saw two vehicles approaching -- a pick-up truck in the curb lane, towing a trailer and operated by the Defendant, and a car travelling in the middle lane, ahead of Mr. Gannon. Mr. Tough testified that the car stopped at the intersection even though, in Mr. Tough’s estimation, that driver had time to clear the intersection. [ 5 ] Mr. Tough testified that when the light turned red, Mr. Gannon had not yet reached the intersection and appeared to him approximately 10 car lengths back. Mr.

Tough continued his left-hand turn and had almost completed his turn, to the extent that the nose of his car was in the crosswalk on Spall Road, when the accident occurred. [ 6 ] Mr. Gannon reported to the investigating police officer right after the crash that he was three car lengths back from the intersection when the light turned yellow. He stated that Mr. Tough drove his vehicle in front of him and he was unable to avoid it which led to him striking Mr. Tough’s car.

[ 7 ] The front end of the Defendant’s truck hit the front passenger door and part of the rear passenger door of Mr. Tough’s car. As a result of the collision, the claimant’s car was pushed onto the median of Spall and his driver’s side rear panel came into contact with the front of another car that had been in the left-hand turn lane on Spall, ready to turn eastbound towards Rutland. [ 8 ] There were no significant injuries as a result of the collision. [ 9 ] When Mr. Tough reported the accident to ICBC, his car was written off and ICBC found him to be100% liable for the accident.

Discussion [ 10 ] This case essentially involves the assessment of liability of these drivers pursuant to two sections of the Motor Vehicle Act , RSBC 1996,

Chapter 318. [ 11 ] The

section applicable to the Claimant is as follows: Yielding right of way on left turn 172 When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close to the intersection so as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn. [ 12 ] The

section applicable to the Defendant is as follows: Yellow light 128

(1) When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light, (

a) the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety, [ 13 ] The investigating officer, Cst. English, testified at this trial and his accident report was filed. That document indicates that he determined that the Principal Offender in the accident was Mr. Gannon.

He testified he came to that decision on the basis of the road conditions, from speaking to both drivers and from taking statements from two witnesses who had seen the accident take place. Neither of those witnesses was called at trial. From the hearsay evidence that the Court heard, one would likely have cancelled out the other’s evidence if they had testified. Neither Mr. Gannon nor Mr. Tough was ticketed. [ 14 ] Counsel for the Defendants submitted a number of cases which she argues supports her position. Mr. Enns submitted one case to the Court.

I find that these cases are not determiniative of the issues but that my decision turns on the evidence before me. The Court must assess the testimony of the litigants as it relates to the applicable legislation. [ 15 ] Mr. Gannon testified that he used the trailer he was towing for his work as a self-employed, residential renovation contractor. He had had it for 6 months by the time of the accident. [ 16 ] The trailer could hold a load of up to 2000 lbs. and although he wasn’t sure how much the items weighed which he was hauling on December 10, 2007, he was sure it was nowhere near the maximum.

He agreed in cross-examination that his load probably weighed approximately 500 lbs. Mr. Gannon admitted that this extended the distance needed for the truck to come to a stop, although he couldn’t say by how much. [ 17 ] He testified his trailer did not have brakes but that he had checked with the appropriate authorities and it did not require brakes. His truck did not have a towing package, brake controller or heavy sway bars. [ 18 ] In reviewing Mr. Gannon’s various statements about the accident, his recall seemed to vary with each telling: (

a) At the scene immediately after the accident, Mr. Gannon told the investigating officer that he didn’t have time to stop due to the fact he was towing the trailer so he accelerated through the intersection. (

b) In his statement to ICBC Mr. Gannon reported that the light turned amber when he was 4 to 5 car lengths from the intersection. He couldn’t stop because he was pulling the trailer and so slowed to 40 to 45 kmh and proceeded through the intersection. There had been a car about 10 car lengths ahead of Mr. Gannon which prevented Mr. Tough from making a left turn. That car had cleared the intersection before Mr. Gannon came to it and Mr. Tough turned his car in front of Mr. Gannon when he was three or four car lengths from the intersection. (

c) When he testified at this trial, Mr. Gannon stated that as he approached the intersection, the light turned yellow when he was 3 to 5 car lengths away and he slowed “a bit” but felt it was unsafe to come to a complete stop so he went through the intersection. He testified that he applied “the brake for a second” but the truck slowed “no more than a bit”. He further testified that he put his “foot back on the gas but didn’t accelerate”. He estimated he was travelling at 45 kilometres per hour when he crossed the stop line. (

d) In cross-examination Mr. Gannon testified he was about 8 to 15 car lengths back from the intersection when he first saw the Honda in the intersection and noticed it waiting to turn. He testified he saw the Honda start to turn when he advanced into the intersection and thought Mr. Tough would see him and stop.

[ 19 ] In contrast, Mr. Tough consistently maintained at the scene, in his statement to ICBC and during the trial that when the traffic light turned green there was oncoming traffic so he stopped in the intersection. When the traffic light turned yellow, two cars were approaching, one in front of the other with the defendant in the second vehicle. When the light turned red, Mr. Tough began to finish his turn and had almost completed it when he was struck by Gannon’s car. He maintained that the light was red for Mr. Gannon when he entered the intersection. [ 20 ] Given the inconsistencies in Mr.

Gannon’s statements, I prefer the evidence of Mr. Tough to that of Mr. Gannon. Dealings with ICBC [ 21 ] Although it does not substantially affect the outcome of this decision, I feel I must acknowledge Mr. Enns’ testimony about his experience with ICBC. Mr. Enns is Mr. Tough’s stepfather and he has assisted his stepson from immediately after the accident, through the dealings with ICBC and during this trial. [ 22 ] Mr. Enns testified that at the beginning of the first meeting with the adjuster Mr. Tough gave his statement, and then the adjuster spoke to both men. She mentioned Mr.

Tough’s age (he was 17 years old) and the fact that he had not been driving for very long – he had had his “N” (new driver’s license designation) for only a month at the time of the accident. Furthermore, she told them that Eric Tough was at least 50% responsible “because people turning left are always in the wrong”. [ 23 ] Mr. Enns testified he felt uneasy about this and subsequently went to look at the intersection and got a copy of the police report. He subsequently asked the adjuster to talk to Constable English and look into the timing of the light.

She responded that it was a quasi- judicial process and she alone would be deciding the outcome. However she agreed to speak to the police officer. She told Mr. Enns she was also waiting for two more witness statements. [ 24 ] Subsequently the adjuster contacted Mr. Enns and told him she had received a statement from a retired police officer who was an expert. That person had said that “Eric roared into the intersection into the path of the truck without stopping”. She provided a copy of that statement to Mr.

Enns. [ 25 ] The adjuster was unclear about whether she had received the other witness statement to which she had previously referred and whether or not she had spoken to the investigating officer. [ 26 ] At this point she advised she held Eric Tough 100% liable for the accident, he was denied any reimbursement for the car or anything else, and that his insurance rates were increased by 75%. [ 27 ] Mr. Enns appealed, on Eric’s behalf. The appeal process was to the manager of the Claims office. It took some time for a meeting to be arranged and before the meeting occurred, Mr.

Enns was given another copy of the retired police officer’s statement. It was different from the statement that had been provided by the claims adjuster in that the portion that indicated the truck driver might have been partly responsible was deleted. The edited copy of the letter was filed at trial. [ 28 ] When Mr. Enns asked questions about brakes on the trailer, he says the manager was adamant that the trailer did have brakes and that they were working at the time of the accident. As indicated herein, Mr. Gannon has testified at this trial that the trailer had no brakes and that none were required. When Mr.

Enns insisted this issue be investigated, the manager advised him that the appeal was over and that the decision to reject the appeal had already been mailed the day before. Mr. Enns did get a letter in the mail a day or two later. [ 29 ] No one from ICBC testified at this trial. [ 30 ] It is disturbing to hear how the Insurance Corporation dealt with Mr. Tough and Mr. Enns. Firstly, ICBC was Mr. Tough’s insurer as well as Mr. Gannon’s. In spite of that, it appears Mr. Tough was stereotyped before all the information about the claim had been received by the adjuster.

This Court certainly sees a great number of reckless, young, male drivers. But not all young male drivers are reckless and Mr. Tough should not have been pre-judged because he falls within the category of young and male. [ 31 ] This is even more concerning in light of the adjuster’s statement that she was the judge in a quasi-judicial process.

By failing to be objective in assessing the situation and forming opinions about liability before all the facts were received, the adjuster did not act judicially. [ 32 ] As well, her statement that Eric Tough was at least 50% responsible “because people turning left are always in the wrong” shows she misunderstood the law, as the legislation to which I have referred shows. [ 33 ] Lastly, I am sure neither the adjuster or manager would feel fairly judged if they came to this Court and were told, after they had pleaded their case, that the decision had been made the day before the hearing. [ 34 ] This behaviour does not reflect well on the Defendant Corporation.

Decision [ 35 ] Mr. Tough testified he was at the intersection, with his signal on, waiting to turn. He says that when the light turned yellow, he didn’t turn immediately but waited to make sure the intersection was clear. Mr. Tough’s statements were consistent in his conversation with the police officer at the scene, in his statement to ICBC and during his testimony and cross-examination at this trial. I have accepted his evidence.

[ 36 ] Pursuant to

section 172 of the Motor Vehicle Act , Mr. Tough was initially required to yield at the intersection, which I find he did. I find his were the actions of a prudent driver and he fulfilled his responsibilities as a driver at a traffic-light controlled intersection as required by the Motor Vehicle Act . [ 37 ] As I have already indicated, Mr. Gannon’s evidence varied from what he said immediately after the accident, what he told the adjuster and during his evidence at trial. Mr. Gannon’s position is that he didn’t stop at the yellow light, as required by

Section 128 because he could not do so safely. [ 38 ] I find that on December 10, 2007, the pavement was wet and Mr. Gannon was pulling a trailer with extra weight. As he approached the intersection at Spall Road, he saw the light had turned yellow and with the other physical circumstances, he should have slowed down so he could stop. He did not. I find that Mr. Gannon was travelling too fast for the conditions. If he had been driving appropriately, he could have stopped safely. He did not fulfill the requirements on him of the Motor Vehicle Act and therefore I find Mr.

Gannon 100% liable for the accident. [ 39 ] Mr. Tough has claimed for the cost of his car and testified he had purchased it for $750.00. He is awarded that amount as the value of his loss of his car. [ 40 ] Mr. Tough claimed for loss of use of vehicle. I am satisfied that the Defendant ICBC has shown that Mr.

Tough did not have the appropriate insurance coverage so that the Defendants are not be liable for that head of damages. [ 41 ] The Defendants, jointly and severally, shall pay to the Claimant: For the loss of the vehicle: $750.00 Costs: $176.00 [ 42 ] Pre-judgment interest from the date of the Settlement Conference, March 6, 2009, to the date of this judgment. [ 43 ] Post-judgment interest from the date of the judgment until the settlement is paid in full. ___________________________________ The Honourable Judge Anne K. Wallace