IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100430

Docket:
M064862

Registry: Vancouver

Between:

Miquel Mendoza Cue

Plaintiff

And

Roy Breitkreuz and Gary’s Delivery
Service Ltd.

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
This action arises out of a motor vehicle
collision in which the plaintiff’s car was struck from the rear by the
defendants’ truck. The plaintiff said the collision occurred while he was
stopped, waiting to make a left turn. The defendant said the plaintiff suddenly
changed lanes, then stopped in front of him, leaving no opportunity to avoid
the collision. By agreement of counsel, this trial dealt only with the issue of
liability.

[2]            
The collision occurred shortly after 5:00 p.m.
on November 30, 2004, at the intersection of Main Street and 44th Avenue in
Vancouver. The plaintiff, Miquel Cue, was driving a Toyota Corolla, with his
wife in the front passenger seat. They had left their house on 43rd Avenue,
just west of Main Street, and were driving to a drugstore on Fraser Street,
which is parallel to Main Street and a few blocks further to the east. Main
Street, in that area, has three lanes in each direction, but the curb lanes
were occupied by parked vehicles. The collision occurred in the southbound
traffic lane adjacent to the centre line, which I will refer to as the left
lane. I will refer to the southbound traffic lane next to the parked vehicles
as the right lane.

[3]            
The plaintiff testified that at the intersection
of 43rd Avenue and Main Street, he stopped at a stop sign, checked for oncoming
traffic, then made a right turn to head south on Main Street, intending to then
turn left at 44th Avenue. He said he turned into the right lane, put on his left-turn
signal, then moved into the left lane and slowed down. The plaintiff said that
before changing lanes, he checked his rear view and side mirrors, and looked
over his shoulder to determine that it was safe to do so. At that point, he said,
he was in about the middle of the block between 43rd and 44th Avenues and other
southbound traffic was still north of 43rd Avenue.

[4]            
The plaintiff testified that as he was slowing
down in the left lane, a car behind him moved into the right lane and passed
him. At the intersection of 44th Avenue and Main Street, he stopped to wait for
oncoming traffic to pass before making his left turn. He estimated that he had
been waiting for five seconds or more before his car was struck from behind.

[5]            
On cross-examination, the plaintiff agreed that
he was travelling between 40 and 50 kilometres per hour (kph) and began to slow
down when he was about two car lengths from the intersection. He rejected the
suggestion that this was an abrupt stop.

[6]            
The defendant, Roy Breitkreuz, was driving south
on Main Street in a five-ton truck. He testified that he was travelling at
about 50 kph when he crossed 41st Avenue and saw the plaintiff’s vehicle
ahead, trying to make a right turn at 43rd Avenue onto Main Street. The
defendant said he moved from the right to the left lane. He said that he saw
the plaintiff’s car make the right turn and accelerate in the right lane,
although his truck was catching up to it quickly. Suddenly, the defendant said,
the plaintiff’s car moved to the left lane, then braked. He said the plaintiff
was only two or three car lengths from the intersection of 44th Avenue when he
completed the lane change. The defendant said he first took his foot off the
accelerator, but applied his brakes in a “panic stop”, when he saw the
plaintiff’s brake lights come on. He said he saw no turn signal before the
collision, only brake lights.

[7]            
The plaintiff and the defendant agree that the
block of Main Street between 43rd and 44th Avenues is a short one. Photographs
show that on the west side of Main Street there are only five lots, occupied by
four houses and a small commercial building. The defendant said he has
subsequently paced off the distance and believes the block to be approximately
65 metres or 65 yards long.

[8]            
The plaintiff’s wife, Almica Cue, who was in the
front passenger seat of the plaintiff’s vehicle, testified that her husband’s lane
change was not abrupt, the stop was gradual, and she saw and heard the left
turn signal indicator inside the vehicle. Mrs. Cue said they were stopped
at the intersection long enough for her to undo her seatbelt, turn around, and
pick up her dog from the back seat.

[9]            
The plaintiff’s daughter, Mandy Cue, came upon
the scene after the accident, when she was on her way home from high school. She
said she saw the left turn signal flashing on her parents’ car. She also said
she heard the defendant, while speaking to another person at the scene, make a
derogatory racial remark about her father. The defendant denies that.

[10]        
The only independent witness called at trial was
Hardial Singh Poonia. Mr. Poonia testified that he was stopped in his
vehicle on 44th Avenue on the west side of Main Street waiting to make a left
turn to head north on Main Street, when he saw both the plaintiff’s and the
defendant’s vehicles approaching. He said the plaintiff’s car accelerated,
moved in front of the truck, then “slammed on the brakes”. From his
observation, Mr. Poonia did not think the truck had any chance to stop
before sliding into the plaintiff’s car.

[11]        
There are reasons to approach Mr. Poonia’s
evidence with some caution. He showed an obvious hostility to the plaintiff, stating
that he thought the plaintiff was faking injuries after a minor accident, and expressing
a concern that such claims could affect insurance premiums. Mr. Poonia
admits that, at the scene of the accident, he was angry about what he had seen
and clearly expressed that anger.

[12]        
Counsel for the plaintiff also points out that Mr. Poonia
stated with some certainty that the accident had occurred during daylight,
while all others say it was dark. Given the time of day and time of year, Mr. Poonia
was clearly wrong on that point and counsel for the plaintiff suggests that a
witness who is wrong about such a basic and obvious matter must be unreliable.

[13]        
However, Mr. Poonia’s description of the
accident is entirely consistent with the defendant’s version of events. Notwithstanding
his attitude toward the plaintiff, there is no evidence that he has any
connection to the defendant. I do not agree that his evidence can or should be
discounted merely because he was wrong about the lighting conditions. The
important point, and the one most likely to be accurately recalled six years
later, was the description of the collision itself.

[14]        
Faced with a plaintiff and a defendant whose
recollections and descriptions of the accident are irreconcilable, I prefer the
evidence that is consistent with that of the only independent witness. The
evidence of the defendant and Mr. Poonia is also more consistent with the
shortness of the block between 43rd and 44th Avenues. Given the short distance within
which the plaintiff had to change lanes and stop, I find those manoeuvres must
have been more abrupt than the plaintiff now recalls and believes them to have
been.

[15]        
Where there has been a rear-end collision, the
onus shifts to the following driver to show that he or she was not at fault: Robbie
v. King, 2003 BCSC 1553 at para. 13. It is also the case that the
driver of a following vehicle must allow a sufficient distance to stop safely
in the event of a sudden or unanticipated stop by the vehicles ahead: Pryndik
v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002 BCCA 639; and Rai
v. Fowler, 2007 BCSC 1678 at para. 30.

[16]        
On the evidence before me in this case, I find
that the defendant has discharged the onus upon him. I find that the plaintiff,
by changing lanes in the manner that he did, created the situation in which the
defendant did not have a safe stopping distance behind the plaintiff’s vehicle.
Had the plaintiff not stopped, the defendant would have had the opportunity to
slow down and allow the distance between them to increase. But when the
plaintiff stopped immediately following the lane change, the defendant had no
chance to avoid the collision. The defendant had no reason, in the moments
leading up to the accident, to anticipate the plaintiff’s lane change and stop.

[17]        
The plaintiff’s claim must therefore be
dismissed. Counsel may make written submissions as to any costs issues that may
arise from these reasons.

N. Smith J.