IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121005

Docket: M093379

Registry:
Vancouver

Between:

Robert Troy Pike

Plaintiff

And

Gej Dandiwal

Satwinder Dandiwal

Defendants

NOTICE: 
Also see Supplementary Reasons for Judgment dated November 2, 2012
Pike v. Dandiwal, 2012 BCSC 1635

Before:
The Honourable Mr. Justice Walker

Oral Reasons for Judgment

Introduction and Facts

[1]            
The trial of this action concerned the determination of fault for a
motor vehicle accident that occurred on December 30, 2007 at the intersection
of 168^th Street and 64 Avenue, Surrey, British Columbia. A pewter
coloured GMC pick-up truck driven by the plaintiff, Robert Pike, collided with
a grey Honda Accord owned by the defendant, Satwinder Dandiwal, and driven by
his father, Gej Dandiwal, close to 6:00 p.m. I am satisfied from all of the
evidence that the collision took place between 5:50 and 5:55 p.m.

[2]            
The case is made somewhat complicated because of differences in account
between Mr. Pike and Mr. Dandiwal and what I have found to be
unreliable accounts provided by all of the witnesses except Tara Gregson (who
is now married with the surname Prozny).

[3]            
Mr. Pike, a professional truck driver who holds a class 1 driver’s
license, was driving in a southbound direction on 168^th Street. Mr. Dandiwal
was driving in an eastbound direction on 64^th Avenue. Mr. Dandiwal’s
vehicle struck the rear half of the passenger (or right) side of Mr. Pike’s
pick-up in the intersection. Mr. Pike was familiar with the intersection
because he drove through it on a regular basis.

Evidence of Mr. Robert
Pike

[4]            
Mr. Pike candidly admitted to suffering from memory gaps or lapses.
He maintained, however, that he definitely recalled looking up at the traffic
signal controlling his direction of travel before he entered the intersection,
and that it was green. He believed it was still green as he entered the
intersection, but he could not identify the colour of the traffic light when he
was in the intersection. Mr. Pike’s evidence was that he was travelling below
the speed limit, between 50 to 55 kilometres per hour (“kph”). He recalls a big
bang and then subsequently waking up in his vehicle following a loss of
consciousness. He does not recall any distractions or impediments that would
have caused him to slow down or avoid entering the intersection.

[5]            
I found Mr. Pike to have given his best and an honest account of
the collision. I accept the evidence that he gave.

Evidence of Mr. Gej
Dandiwal

[6]            
Mr. Dandiwal’s evidence, on the other hand, contained some key factual
errors and inconsistencies both in terms of his trial testimony and examination
for discovery evidence. For example, his evidence concerning the colour and
sequencing of the traffic control lights facing him as he approached and then
entered the intersection was inconsistent. His evidence concerning the
direction of travel of Mr. Pike’s vehicle was also incorrect.

[7]            
Mr. Dandiwal sought to explain away any differences from his
discovery evidence as errors made by an interpreter, who interpreted the
questions and answers from English to Punjabi and vice-versa. Mr. Dandiwal
claimed the interpreter did not understand him. But Mr. Dandiwal did not
identify the specific evidence that he claimed was not interpreted properly.
His trial testimony consisted of a general statement that the interpreter did
not understand his evidence concerning the direction of travel. Yet, at trial,
when Mr. Dandiwal gave evidence through a different interpreter, he continued
to confuse the direction of travel of Mr. Pike’s vehicle.

[8]            
It also became apparent that Mr. Dandiwal understands the English
language. For example, I asked the interpreter to repeat part of an answer given
by Mr. Dandiwal because I did not hear part of what she had said. She
replied that Mr. Dandiwal said he lifted “his foot off” without saying
from what. Towards the end of our exchange, and at a time when Mr. Dandiwal
did not have the benefit of an interpretation of it, Mr. Dandiwal tried to
tell me what he lifted his foot off of.

[9]            
It was also suggested in submissions that the interpreter at the
examination for discovery was not appropriately certified. No evidence was led
to prove that; nor was any other evidence tendered to prove inaccurate
interpretation.

[10]        
Mr. Dandiwal admitted that he was travelling in excess of the speed
limit, between 60 to 65 kph, before he entered the intersection. He was driving
to work (as a security guard). Mr. Dandiwal was due to be at work at 6:00
p.m. He agreed that he lives approximately 20 kph from work, which is normally
a 15-minute or so drive from home. He also agreed that he was halfway to work
when the collision occurred.

[11]        
Although Mr. Dandiwal denied stating to a witness that he was late
for work, I am satisfied that he was in a hurry to get to work. The collision
took place between 5:50 and 5:55 p.m. Mr. Dandiwal needed at least another
seven and one-half minutes to get to work. Without any untoward incidents or
traffic delays, Mr. Dandiwal would have arrived between approximately 5:57
p.m. and 6:02 p.m.; and from there, he would have required additional time to
put himself into position.

[12]        
In all, I did not find Mr. Dandiwal to have provided an accurate or
consistent account of the circumstances leading up to the collision.

Evidence of Other
Witnesses

[13]        
I heard evidence from several witnesses who said they observed some or
all of the circumstances giving rise to the collision.

[14]        
In hearing and observing the witnesses to the collision, I was satisfied
that,  with the exception of Tara Gregson, each of their accounts were, through
no fault of their own, deficient in many respects. Each witness did their best
to provide an honest account of what they observed. Yet, their accounts of the
collision were marred by the following:

(a)      inaccurate
descriptions of the direction that the vehicles driven by Mr. Pike and Mr. Dandiwal
were travelling moments before the collision occurred;

(b)      inaccurate
descriptions of the names of the streets that each vehicle was travelling on
moments before the collision occurred;

(c)      inaccurate estimates of
speed;

(d)      different
accounts of the colour of the traffic control lights at the intersection
moments before and during the collision; and

(e)      inaccurate
descriptions of the point of impact between the two vehicles.

[15]        
The problems with these accounts are explained by:

(a)      the
collision was a sudden and dramatic event that none of the witnesses expected
to occur;

(b)      the
witnesses were not focused on the intersection or they were distracted (for
example, one witness was talking on his cell phone and listening to music at
the time, two others were focused on driving on the road ahead of them, and
another did not have a clear view of the intersection when the collision
occurred);

(c)      the vehicles were close in
colour;

(d)      it was
dark outside because the collision occurred close to 6:00 p.m. on December 30^th;
and

(e)      there
was another dark-coloured pick-up truck observed by some in the vicinity
moments before the accident occurred.

[16]        
What I can glean from the totality of the evidence from those witnesses
whose vehicles were stopped at the front of their respective lanes at the
intersection is that Mr. Dandiwal proceeded through the intersection on a
red light.

Expert Evidence of Mr.
William Cliff

[17]        
I also heard evidence from a mechanical engineer, Mr. William Cliff,
who was qualified to give expert opinion accident reconstruction evidence as
part of the case for the defendants. Although he did not inspect the accident
scene or the vehicles, Mr. Cliff was able to determine the speeds and
routes of travel of both vehicles prior to and at the point of impact based on
his examination of photographs of the damaged vehicles and the intersection. Mr. Pike
relied upon the evidence of Mr. Cliff in support of his case even though Mr. Cliff
was called as a defence witness.

[18]        
I accept Mr. Cliff’s opinion evidence concerning the direction of
travel, the speeds of the Pike and Dandiwal vehicles moments before the
collision occurred, and the point of impact. According to Mr. Cliff, Mr. Pike
was travelling southbound on 168^th Street between 48 to 59 kph and Mr. Dandiwal
was travelling eastbound on 64 Avenue between 55 to 68 kph. The posted speed
limit for both roads is 60 kph. Mr. Dandiwal struck Mr. Pike’s
vehicle at the mid to rear section of the passenger side of his pick-up truck.

The Traffic Light
Sequences

[19]        
Evidence concerning the traffic light sequencing at the intersection was
also adduced. The amber lights for all directions of travel are timed to
activate for 4 seconds before changing to red. Once they do change from amber
to red, the lights are programmed so that all traffic control lights remain red
for a specific period of time (1.4 seconds for 64 Avenue and 1.8 seconds for
168^th Street). As a result, when one set of traffic control lights
change from amber to red, there is a delay of either 1.4 or 1.8 seconds before
the traffic lights controlling the contrary lanes of traffic will change from
red to green.

The Evidence of Ms.
Tara Prozny

[20]        
I found the evidence of Tara Prozny to have been credible and reliable. Ms. Prozny
explained that before the collision occurred, she was travelling northbound on
168^th Street intending to make a left hand turn to proceed westbound
on 64 Avenue. She was travelling at approximately 60 kph and then slowed
to between 20 to 25 kph as she proceeded into the left turn lane. She saw the
light change from green to amber. She decided to bring her vehicle to a
complete stop in the left turn lane, as opposed to making the left hand turn,
because she saw the traffic control signal facing her turn amber. She then saw Mr. Pike’s
pick-up truck flying in the air, sideways, towards her. His vehicle then struck
hers.

[21]        
Ms. Prozny estimated the total elapsed time between the time the
light changed from green to amber and when Mr. Pike’s vehicle struck hers to
be one to two seconds. While she maintained that the time was one second, she
conceded in cross examination that it could have been as much as two seconds
but not more.

[22]        
I accept Ms. Prozny’s evidence. She had an unimpeded view of the
traffic lights facing her. Her attention was focused on the lights because she
was intending to make a left hand turn. Her account of the elapsed time of one
to two seconds was not challenged or shaken. I accept her explanation for the
differences between her testimony and an unsigned statement prepared by a
representative of the Insurance Corporation of British Columbia (“ICBC”) that
contained a lower estimate of her speed. I found the entirety of her trial
testimony to be highly credible and reliable.

[23]        
I also find that it does not make any difference to the issue of
liability whether the elapsed time was one second or two. The evidence of Mr. Cliff
concerning distance of vehicular travel based on speed, combined with the
traffic light sequencing patterns and the measurements of the intersection
described by the mapping company Speedscene, establish that Mr. Dandiwal
entered the intersection on a red light and further, that as far as Mr. Pike
is concerned, at the worst, the traffic control lights facing him changed to
amber either a moment before or as he entered the intersection.

Disposition

[24]        
In all, therefore, I find that:

(a)      the
collision occurred between 5:50 and 5:55 p.m. on December 30, 2007;

(b)      Mr. Pike
was travelling southbound on 168^th Street and Mr. Dandiwal was
travelling eastbound on 64 Avenue;

(c)      Mr. Pike
entered the intersection on a green light or a moment after the light changed
to amber;

(d)      Mr. Dandiwal
entered the intersection on a red light contrary to section 129 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318;

(e)      Mr. Dandiwal
struck the mid to rear passenger side of Mr. Pike’s pick-up truck;

(f)       Mr. Pike’s
vehicle became airborne and landed on top of a portion of Ms. Prozny’s
vehicle;

(g)      Mr. Pike had the
right-of-way when he entered the intersection;

(h)      Mr. Pike
was not driving in excess of the speed limit moments before the collision
occurred;

(i)       Mr. Dandiwal was in
a hurry to get to work;

(j)       there
was nothing to warn Mr. Pike that Mr. Dandiwal would drive into the
intersection;

(k)      there
was nothing to warn Mr. Pike that he should not enter the intersection; and

(l)       there
was no opportunity for Mr. Pike to take evasive action to avoid the
collision.

[25]        
I find Mr. Dandiwal to be entirely at fault for the collision.
There is no case for contributory negligence. I find that the combined evidence
of Mr. Pike, Mr. Cliff, and Ms. Prozny, has satisfied the onus
on Mr. Pike to establish, per s.128 of the Act, that in the event
the light turned amber the moment before he entered the intersection, he could
not have safely stopped his vehicle. It would have required him to slam on his
brakes, which would have caused his vehicle to skid into the intersection given
the speed at which he was travelling, which, in turn, would have created a significant
risk of contact with another vehicle or vehicles.

[26]        
I do not need to decide whether Mr. Pike’s vehicle rolled 360
degrees (described as a “barrel roll” by some of the witnesses) or whether it
flew on its side (as Ms. Prozny observed) when it became airborne. Mr. Cliff
doubted that it did a barrel roll because he did not see any damage to the top
of Mr. Pike’s vehicle in the photographs, but he could not be certain because
he did not actually inspect any of the vehicles. I am satisfied, however, that Mr. Pike’s
vehicle became airborne following the impact caused by Mr. Dandiwal’s
vehicle and, at some point, headed sideways on to Ms. Prozny’s vehicle.
Whether it rolled completely over while in the air and then flew into Ms. Prozny’s
vehicle does not affect the determination of the liability issue.

[27]        
Mr. Pike shall have judgment against the Dandiwal defendants, with
damages to be assessed, plus costs.

[28]        
Finally, as an aside, I wish to express my concern for the unexplained
basis upon which the defendants’ agent (who is also ICBC) provided to the
defendants’ counsel copies of statements obtained by ICBC from Mr. Pike
and Ms. Prozny in the course of reporting the accident as part of their
first party claims to their motor vehicle insurer. I have not been made aware
of that production resulting from a court order nor have I been shown or made
aware of the consent of Mr. Pike or Ms. Prozny to such production. I
leave it to another day to decide under what circumstances, if any, ICBC may
produce to defence counsel information provided by a plaintiff to ICBC, as part
of the plaintiff’s obligation to its insurer when seeking first party insurance
coverage, in order to assist defence counsel in their efforts to resist the
claim advanced by that plaintiff.

Costs

[SUBMISSIONS
RE: COSTS]

[29]        
Counsel for Mr. Pike asks for double costs to be
ordered because Mr. Pike has beat its settlement offer. Counsel for Mr. Pike
has shown me the offer that was made before the trial commenced in respect of
the liability issue.

[30]        
Defence counsel has, on the other hand, shown me
offers that were made on behalf of the defendants that are tied to specific
dollar amounts. 

[31]        
This trial concerned the issue of liability
only. 

[32]        
The defendants resist Mr. Pike’s application for
costs on a two-pronged basis. 

[33]        
The first one is that costs should not be
determined until after the assessment of damages because if Mr. Pike does not
beat the dollar amount of the defendants’ offer, he should be denied his costs
not only in respect of that (second) trial but this trial in which he was
successful. No case law has been provided in support of this submission.

[34]        
As for its second basis of opposition, the defendants
argue that it was not reasonable for them to accept Mr. Pike’s offer in the
circumstances because they have only just received my determination that Mr.
Gej Dandiwal was not credible and that I could not rely on the evidence of a
number of witnesses. 

[35]        
One of the offers that I saw from the defendants
stated that they accepted Mr. Pike’s offered liability apportionment of 75/25 so
long as Mr. Pike accepted their assessment of damages; further, that offer was
only open for acceptance for several hours.

[36]        
The problems with Mr. Gej Dandiwal’s credibility
have been apparent since he gave his evidence at the examination for discovery.
He was inconsistent in giving his evidence then. At trial, he tried to resile
from his discovery evidence by blaming it on an interpreter. The blame was
general in nature; no specifics were provided. Although an attack was made on
the interpreter’s purported lack of certification by defence counsel, no
evidence was led as to the interpreter’s lack of qualifications or lack of
certification. Moreover, and significantly, Mr. Dandiwal continued to provide
inconsistent and unreliable evidence in the same vein that he did at his
examination for discovery. As for the other witnesses whose evidence I did not
accept because they were confused and had incorrect directions of travel, all
of that should have been plain and obvious to the defendants and their agents
before this trial took place.

[37]        
In addition, Mr. Pike succeeded in this case
relying in part on the defendants’ own expert. The expert’s evidence, combined
with the Speedscene evidence (which the parties had in advance of the trial)
and the evidence of Ms. Prozny (which was very clear), leaves no doubt that Mr.
Pike’s offer was more than reasonable and should have been accepted.

[38]        
In my view, double costs should be awarded to Mr.
Pike. I find it most troubling that defence counsel has not brought me any case
law to support his submissions. We are now at 5:05 p.m. I am going to impose a
stay on the operation of my judgment for costs for 48 hours to allow the
defendants the opportunity to find case law that supports their position,
because the last thing I wish to do is commit an error in law.

[39]        
If the defendants find that case law and wish to
seek to have me reconsider my decision, I will hear it, so long as I receive
advice of that by next Wednesday at noon through Trial Scheduling. Otherwise,
the order will stand that the defendants pay double costs to Mr. Pike.

“P. Walker J.”

__________________________________

The Honourable Mr. Justice Paul Walker