IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Akbari v. Insurance Corporation of British Columbia , |
| 2012 BCSC 1749 |
Date: 20121123
Docket: M110131
Registry:
Vancouver
Between:
Sardar Akbari
Plaintiff
And
Insurance
Corporation of British Columbia
Defendant
Before:
The Honourable Madam Justice Baker
Reasons for Judgment
Counsel for the Plaintiff: | Bruce A. McIntosh |
Counsel for the Defendant: | Tanya Heuchert |
Place and Date of Trial: | Vancouver, B.C. August 31, September & November 7, |
Place and Date of Judgment: | Vancouver, B.C. November 23, 2012 |
[1]
On December 8, 2010, the plaintiff was driving on Nordel Way in Delta
when the vehicle he was driving collided with a light standard. Although the
direction in which he was travelling would most accurately be described as
north-easterly, for the sake of convenience, and because it will make no
difference to the narrative, in these Reasons I shall refer to Nordel Way as a
north-south street and 84th Avenue as an east-west avenue. Mr.
Akbari was north-bound on Nordel Way, heading out of Delta towards Surrey.
[2]
Mr. Akbari says that the accident happened because he had to take
evasive action to avoid a collision with a vehicle, driven by an unidentified
driver, which suddenly pulled out directly across his path of travel. Mr.
Akbari alleges that the unidentified driver entered the intersection of Nordel
Way and 84th Avenue against a red light for traffic on 84th
Avenue, and that that drivers negligence was the sole cause of the accident.
Mr. Akbari says that he made all reasonable efforts to identify the driver, who
did not stop at the scene of the accident, but has been unsuccessful in
ascertaining his identity.
[3]
The defendant insurer (ICBC) disputes the plaintiffs claim that a
second vehicle was involved in the accident. ICBC says that Mr. Akbari simply
lost control of his vehicle − possibly due to excessive speed for the wet
road conditions − and struck the pole. The defendant also alleges that
Mr. Akbari failed to take all reasonable steps to ascertain the identity of the
driver and/or owner of the vehicle he claims caused the accident; and is
therefore barred from recovering judgment for damages for his injuries.
FACTS
[4]
Mr. Akbari was born in January 1992; he was 18 when the accident happened
and 21 when he testified at trial. On December 8, 2010, he had worked an
afternoon shift at Genco Home Depot Distribution, described as a third-party
logistics company. I understand that Gencos primary function is to warehouse
products for a large home improvement retailer. That day Mr. Akbari was
working as a shift lead hand. He had recently moved from working on the
graveyard shift to working afternoon shifts, Monday to Friday. The afternoon
shift started at 2:45 p.m. and ended at 11:15 p.m.
[5]
Mr. Akbari had driven to work that day in his fathers vehicle − a
2008 Chevrolet Cobalt 4-door sedan. Mr. Akbari had only recently acquired his
N drivers licence. Sometime during the shift, Mr. Akbari offered to give a
ride to his friend and co-worker, Jose Perez, at the end of the shift.
[6]
Jose Perez testified at trial. He was the front seat passenger in Mr.
Akbaris vehicle when the accident happened. Mr. Akbari told Mr. Perez that he
would be driving to the Surrey Central Skytrain Station to pick up his sister.
Mr. Perez told Mr. Akbari that he could drop him off at the Station and he
would catch the midnight bus to his home. Mr. Perez said that if he missed the
midnight bus, he would have to wait an hour for another bus. He had often
encountered Mr. Akbari on the same bus in the past and was confident that Mr.
Akbari knew the bus schedule.
[7]
Mr. Perez believed that the vehicle Mr. Akbari was driving belonged to
Mr. Akbari. He testified that he believed Mr. Akbari had purchased the
Cobalt, for cash, about a month earlier, and had only had his drivers licence
for about a week prior to December 8, 2010. He said the Cobalt appeared to be
in good shape. Mr. Akbari had told him he had had the tires replaced
recently; that Mr. Akbari had driven against a curb and popped the rims off his
tires, so had bought new tires. Mr. Akbari testified that he had not told his
father about this incident with the vehicle for several months after it
happened.
[8]
Although the shift ended at Genco at 11:15 p.m., Mr. Akbari had some
things to complete at the end of the shift, and Mr. Perez waited for him. Mr.
Akbaris best recollection was that the two men were in the vehicle and driving
away from Genco by 11:25 p.m.; Mr. Perez thought it might have been as late as
11:35 but he wasnt sure. It was dark and rain was falling. Mr. Akbari
estimated that it usually took about 10 minutes to drive from his workplace to
the intersection where the accident happened. Mr. Perez testified that it
takes a lot more than 5 minutes but not as much as 20 minutes unless you
drive like a turtle.
[9]
Once on Nordel Way, Mr. Akbari was driving in a north-easterly
direction, heading to Surrey. He was in the lane closest to the center line.
He estimated his speed at 50 to 60 kph.
[10]
Mr. Perez testified he was very familiar with the route the two men were
driving; that he was on that road every day. He said that he and Mr. Akbari
did not have the car stereo on and were not talking a lot. Mr. Perez was quite
tired. He had no memory of Mr. Akbari using his cell phone while driving; or
of any other distraction. Mr. Perez recalled looking at his own cell phone to
check the time; he said that he saw that he had received a message but did not
read the message.
[11]
84th Avenue intersects Nordel Way. As Mr. Akbari was
approaching the intersection and from some distance away he could see that the
traffic light was red for traffic on Nordel Way. Anticipating that he might
have to stop for the red light, he took his foot off the accelerator and put it
over the brake but recalled that he did not depress the brake pedal. He
believes his vehicle slowed only a little as it approached the intersection.
[12]
Mr. Perez recalled events a little differently. He also recalled that
the light for traffic on Nordel Way was red as he and Mr. Akbari were
approaching the intersection with 84th Avenue. He recalled that Mr.
Akbari had reduced speed and estimated that the Akbari vehicle was travelling
only 25 or 30 kph as they neared the intersection. He testified that he believes
Mr. Akbari could have safely brought his vehicle to a stop if the light had
remained red. Mr. Perez recalled seeing a westbound vehicle on 84th
Avenue cross over Nordel Way and turn left to go southbound as they were
approaching the intersection. Mr. Akbari recalled that at least one and
perhaps more vehicles had turned left from 84th Avenue to go south
on Nordel Way.
[13]
As they neared the intersection, the light for traffic on Nordel Way
turned green and Mr. Akbari returned his foot to the accelerator and his
vehicle began to speed up. He believes he might have reached a speed of 50 or
60 kph by the time he got to the intersection.
[14]
Both Mr. Perez and Mr. Akbari testified that after the light turned
green for traffic on Nordel Way and red for traffic on 84th Avenue;
a light-colored smaller car -silver or perhaps white – entered the intersection
from their right (westbound on 84th Avenue) and crossed directly in
front of them. Mr. Perez had the impression this vehicle was trying to beat
the red light, but he was adamant that the light for traffic on 84th
had turned red before the light-colored vehicle entered the intersection. Mr. Akbari
braked and pulled his vehicle hard to the right to avoid striking the
light-colored vehicle. His vehicle spun in a clockwise direction, went up onto
the median on the right (east) side of Nordel Way and the drivers side of the
vehicle struck a light standard.
[15]
There are two northbound lanes on Nordel Way as it approaches 84th
Avenue but close to the intersection, a third lane − for vehicles turning
right from Nordel Way onto 84th Avenue − opens up. There is
also a merge lane for traffic coming from 84th Avenue turning right
onto Nordel Way. On the northeast corner of the intersection, the merge lane
is separated from the two northbound lanes of Nordel Way by a triangular-shaped
median and on this median there is a light standard. At the top of the pole
there is a street-light for illumination of the intersection; there is also a
cross-bar that extends from the pole across Nordel Way, with traffic lights
suspended from the cross-bar.
[16]
In his testimony, Mr. Perez said that Mr. Akbari lost control of his
vehicle after he swerved to avoid a collision with the vehicle crossing the
intersection. Mr. Akbari testified that if had not braked and swerved he
would have struck the drivers side door of the vehicle crossing his path.
[17]
Other than the description that the vehicle was a smaller car and that
it was light-colored, neither Mr. Perez nor Mr. Akbari were able to be specific
about the vehicle, or any persons inside the vehicle, that crossed their path.
Mr. Perez thought the vehicle was silver-colored; Mr. Akbari thought it was
white. Mr. Perez thought it looked something like a slim Chevrolet Cavalier.
Both men were quite certain that they were very close to the intersection when
the car drove across their path; and that the light had already turned green
for traffic on Nordel Way before the other car entered the intersection from 84th
Avenue.
[18]
Mr. Perez recalls striking his head on the window of the passenger-side
door and feeling dazed or perhaps losing consciousness for a very short time.
He says that the air bags in the vehicle did not deploy. He could hear the car
horn blaring. He undid his seatbelt and opened the passenger side front door.
He could see that the door on Mr. Akbaris side was against the pole and could
not open. He tried to help Mr. Akbari, whose feet seemed to be trapped in the
foot well. Mr. Perez felt weak and shaky.
[19]
Mr. Perez recalled that two men appeared at the vehicle − one man
helped him to get out and told him to sit down beside the road; the other man
helped Mr. Akbari to climb across the seats and exit the passenger side
door.
[20]
Mr. Perez could not recall if the two men had identified themselves −
he thought they had, but he could not recall the names. He said both men were
Caucasian and both spoke English; the man who helped him had a beard.
[21]
Mr. Perez recalls that after he got out of Mr. Akbaris vehicle he
looked to see if the light-colored car that had driven across their path was
still at the scene but could see no sign of it. He saw Mr. Akbari who was also
out of the vehicle and he could see that he had blood on his hands and also
that Mr. Akbari was limping. He saw Mr. Akbari walk to the front of his
vehicle and heard him say Oh my God, oh my God. He heard Mr. Akbaris cell
phone ring and saw Mr. Akbari answer the call and heard him say Hey baby, I
just got in a car accident and then I gotta go, I gotta go.
[22]
Mr. Akbari recalled being helped to the side of the road by the two men
who had come up to his vehicle. He recalled asking them if they had seen anything
and that they said they had not; that they were just coming around the corner.
[23]
Mr. Akbari recalled his girlfriend calling him right after the collision
with the light standard; and that he told her he had been in an accident and
that he ended the call so he could call his father.
[24]
Mr. Perez recalled that emergency personnel arrived and one of them
approached him, but he could not recall what questions he was asked or what he
said in response. He recalled that a police officer spoke to him while he was in
an ambulance. Mr. Akbari recalled that ambulance personnel treated cuts on his
hand. He and Mr. Perez both declined an offer to go to hospital in the
ambulance. Both men recalled speaking to a police officer at the scene and
both recalled telling the officer that they had been cut off by a small white
or silver-colored sedan that crossed their path. Mr. Perez recalled being
driven to the police detachment in a police car and that Mr. Akbaris father
met them there and drove them home.
[25]
After driving Mr. Perez home, Mr. Akbaris father drove Mr. Akbari home
and the two men placed a call to ICBC and reported the accident.
[26]
Constable Da Silva, a member of the Delta Police Department, testified
that he was on duty on December 8 and arrived at the accident scene at about
11:43 p.m. Constable Da Silva had only been with the Delta Police for a very
short time in December 2010. He testified that the police despatch records
showed that a call reporting the accident had come in at 11:40 from a nearby
resident, who had heard, but not seen, the crash.
[27]
When he arrived at the scene, there was no one in Mr. Akbaris vehicle,
which was lodged against the light standard. Mr. Akbari and Mr. Perez −
(for reasons never explained at trial, Constable Da Silva recorded Mr. Perezs
surname as Del Aguila) − were sitting in a van − I infer that
he meant sitting in an ambulance. He asked the two men what had happened.
Constable Da Silva recalled that Mr. Perez said a car had run a red light. The
officer recalled that Mr. Akbari said something similar − that a white
sedan had run a red light and cut him off. Both young men seemed shocked and
in distress.
[28]
Constable Da Silva understood that the collision had happened about five
minutes before he arrived at the scene. He did not see a white car at the
scene, and did not initiate a search for one. His primary concerns were, he
said, the two young men; and traffic control at the intersection. He was told
there were two witnesses and he found B. and S. Shiles in a vehicle parked
nearby. He spoke to them. They said they had been travelling on 84th
Avenue heading east; had heard a collision, looked back and saw a vehicle
against a pole. He asked them if they knew what had caused the accident and
they said they did not know; that they had not seen any other vehicles. They
also said that the light for traffic on Nordel Way was green when the accident
happened.
[29]
Constable Da Silva filled out a police report about the accident but did
not do any further investigation. He recalled that Mr. Akbari called him a few
days later and asked if there were traffic cameras at the intersection. He
understood that Mr. Akbari was hoping to get a photograph of the other
vehicle. Constable Da Silva told Mr. Akbari he would check whether there was a
camera at the intersection, but he never did. He couldnt recall why he had not
responded to Mr. Akbaris request; he thought perhaps he had been too busy.
[30]
Constable Da Silva agreed that there is a townhouse complex on 84th
Avenue near the intersection; he was not sure if it is accessible to
non-residents. He said there are no other homes nearby.
[31]
Three other witnesses testified about the collision and its aftermath.
The first of these was Nahun Chinchilla, who testified in the plaintiffs case,
with the assistance of a Spanish interpreter. Mr. Chinchilla was 37 years old
at time of trial; he had immigrated to Canada from El Salvador where, he
testified, he had worked as an investigator with the National Civil Police.
Mr. Chinchillas comprehension of spoken and written English is not good −
he said he understands perhaps only 10 or 15% of spoken English.
[32]
I found Mr. Chinchillas testimony to be improbable and incredible. Mr. Chinchilla
testified that he was driving westbound on 84th Avenue between 10:30
and 11:00 p.m. on December 9, 2010, intending to turn right (northbound) onto
Nordel Way. He said there were two vehicles ahead of him; that the first
vehicle went through the intersection and the second one stopped. He recalled
seeing a light and hearing a loud noise − a bang − and that he
stopped his vehicle immediately and saw that there was a silver car against a
post, pointed in the wrong direction. Mr. Chinchilla testified that he
put his emergency brake on; got out of his vehicle and approached the car that
had hit the post. He said he went to the drivers side to ask the driver if he
was alright. In chief, he initially said that the driver was conscious but did
not appear to understand what Mr. Chinchilla was saying. Later, in chief, he
said he asked the driver Are you okay and the driver said yes. In
cross-examination, he claimed that the driver said he was fine. He said the
driver was conscious, so he gave the driver his business card and then he got
back in his vehicle and left the scene. He said he didnt see any other people
at the scene of the accident.
[33]
Mr. Chinchilla was asked if he called 911. He said he tried to call 911
and also tried to call some other people but was too nervous to say anything
when his calls were answered.
[34]
Mr. Chinchilla said that a few days after the accident he saw a sign on
a pole at the intersection of Nordel Way and 84th Avenue and that he
called the two telephone numbers written on the sign but could not get through
to anyone. He says that he then looked up a number for ICBC and called the
Corporation. He said he asked to speak to someone at ICBC who could speak
Spanish and that he told that person about having witnessed the accident. He
said ICBC sent him a form and he filled it in and mailed it back. He said a
private investigator working for ICBC had called him numerous times but he
refused to meet with him and eventually got a new cell phone so the
investigator could not reach him. He said he also received several calls from
individuals who left messages identifying themselves as police officers but
because the calls showed up Private Caller on his caller identification
system, he did not return the calls.
[35]
As I stated earlier, I found Mr. Chinchillas testimony to be improbable
and incredible. Mr. Akbari did not recall Mr. Chinchilla speaking to him at
the scene of the accident. Mr. Perez did not recall Mr. Chinchilla being
there, and he was not seen by either B. or S. Shiles, who did assist Mr. Akbari
and Mr. Perez at the scene. Mr. Perez was in or very near the vehicle at the
relevant time, and Messrs. Shiles arrived in a very short time, possibly only
seconds, after the collision happened, but Mr. Chinchilla said he saw no one
but the driver at the scene of the accident.
[36]
Mr. Chinchilla testified about where he was coming from and going to at
the time he says he witnessed the accident, but given his starting point and
destination, 84th Avenue was an unusual and far from direct route. He
responded to that suggestion by saying that there was a fire, and police were
redirecting traffic from the route he would ordinarily have taken. In an
interview with plaintiffs counsel, he said there was a fire at a specific
clothing store that he named; at trial, he said that perhaps there was a fire
or maybe it was an accident that caused police to redirect traffic. Eventually
he agreed that if he was westbound on 84th Avenue and planning to go
north on Nordel Way, he was actually driving in the opposite direction from the
location of his destination.
[37]
Mr. Chinchilla testified that he stopped at the scene because he was
trained in first aid. However, he also said he drove away and did not actually
try to help Mr. Akbari because he was traumatized and suffering from
nervous shock.
[38]
Mr. Chinchilla claimed he had never spoken to Mr. Akbari on the
telephone, and did not even know Mr. Akbaris name until he was introduced to
him outside the courtroom at trial. Mr. Akbari testified, however, that he had
spoken with Mr. Chinchilla on the telephone a few weeks after the accident
happened.
[39]
I do not know what to make of Mr. Chinchillas testimony. I am
satisfied he did not stop at the scene of the accident and did not speak to Mr.
Akbari there. It is possible that he did see the accident and felt guilty
about not having stopped to offer assistance, and so concocted part of his
testimony to present himself in a more favourable light. As I cannot separate
truth from fiction, however, I must consider him to be an unreliable witness
and I give no weight to any part of his testimony.
[40]
Barry Shiles (B. Shiles) testified as a witness for the defence, as
did his son, Scott Shiles (S. Shiles). B. Shiles is retired; he lives in
Delta less than one kilometre from where the accident happened. On that night,
he was driving his 1999 Mazda truck, which has a canopy on the back, and S. Shiles
was his passenger. B. Shiles was driving S. Shiles home from work. They
were northbound on Nordel, some distance ahead of Mr. Akbaris vehicle. The
Shiles vehicle turned right off Nordel Way onto 84th Avenue. B.
Shiles recalled that the light for traffic northbound on Nordel was already
green when he made his right turn onto 84th. He estimated that he
was travelling about 30 kph; and that he was still merging onto 84th
Avenue when he heard a bang and the sound of screaming tires. He looked in his
rear view mirror − in cross-examination he said he was referring to the
wing mirror on the drivers side of his truck − and saw a car slide
across the intersection onto the island and hit the light pole. When the car
struck the pole he heard a second bang.
[41]
B. Shiles drove a couple of car-lengths and then made a u-turn and drove
back to the intersection and parked his vehicle where it would block other
vehicles turning north off 84th Avenue onto Nordel. B. Shiles
estimated that it took 10 to 20 seconds to make the u-turn and park his
vehicle. He and S. Shiles got out of their vehicle. B. Shiles tried to call
911 on his cell phone but it was dark and he was not wearing his glasses, so he
had no success. S. Shiles told him not to worry, that he had already called
911 on his cell phone. B. Shiles did not see any other vehicles stopped in the
vicinity and did not see anyone approach Mr. Akbaris vehicle.
[42]
B. Shiles recalled that Mr. Akbaris car had spun around before striking
the pole and was facing the wrong way. B. Shiles recalled that S. Shiles
reached Mr. Akbaris vehicle first. Mr. Perez was already outside the
vehicle; Mr. Akbari was still inside it. Eventually he was able to get out of
the vehicle by climbing across the seat and exiting the passenger side door. S.
Shiles has first-aid training so B. Shiles left it to him to deal with the
driver and passenger. The Akbari vehicles horn was blaring and B. Shiles
lifted the hood of Mr. Akbaris vehicle to try to disengage the horn, but was
unable to do so.
[43]
B. Shiles does not recall Mr. Akbari asking him if he had seen what
happened and does not recall saying I didnt see, I was taking the corner.
However, he did not deny having this exchange with Mr. Akbari.
[44]
B. Shiles recalled staying at the accident scene for 30 to 40 minutes.
He recalled that the fire and emergency vehicle arrived first; a police car
second; and the ambulance came last. He spoke to a police officer and told the
officer he had seen Mr. Akbaris vehicle hit the light pole. He testified the
police officer did not ask him whether he had seen any other vehicles. This
testimony is contradicted by that of Constable Da Silva, who testified that he
asked both B. and S. Shiles if they knew what had caused the accident and both
said they did not.
[45]
B. Shiles was contacted by an ICBC employee on January 10, 2011,
approximately one month after the accident happened. B. Shiles told the ICBC
employee that he did not recall seeing any vehicles westbound on 84th
Avenue at the intersection with Nordel when he turned right onto 84th
Avenue, immediately before the accident happened. At trial, B. Shiles appeared
quite certain that there were no vehicles on 84th waiting to turn
south onto Nordel.
[46]
S. Shiles testimony was similar to that of his father, but there were
some differences. Like B. Shiles, he said he heard a loud bang and that was
why he turned around to look back at the intersection. He did not look in the
rear view mirror or a wing mirror, he looked through the back window of the
truck and, I infer, through the back or a side window of the canopy. Unlike B.
Shiles, S. Shiles said he did not actually see Mr. Akbaris vehicle hit the
pole. He testified that as he was turning around he heard a second bang and
saw that a vehicle had struck the pole.
[47]
S. Shiles testified that he told his father to turn around and to block
the turn lane; and that he called 911. He saw no other vehicles stop or
stopped at the scene and he did not see anyone approach Mr. Akbaris damaged
vehicle. As he and his father drove up, he could see Mr. Perez getting out of
the vehicle; Mr. Akbari was still in the drivers seat. He saw Mr. Perez
assist Mr. Akbari to get out of the vehicle through the passenger side door.
[48]
B. Shiles noticed the damaged vehicle was starting to smoke, and heard
its horn blaring. One of the two men who had exited the vehicle − S.
Shiles believes it was the driver − was talking on his cell phone; S.
Shiles asked him to hang up so he could assess the two men. He said both men
were coherent, but said they were in pain. S. Shiles recalled the driver lamenting
about the damage to his vehicle.
[49]
S. Shiles estimated that he and his father remained at the scene for
between 40 and 45 minutes. During that time, he recalled, two fire trucks, four
or five police cars and an ambulance came to the scene. He said a police
officer took down their names and addresses, but did not ask them what they had
seen.
[50]
S. Shiles said that some time later he received a telephone call from an
ICBC employee. The employee asked him what he had observed and if another
vehicle could have been involved in the accident. S. Shiles said that from
what he could recall, he did not think another vehicle had been involved. He
did not recall seeing any westbound vehicles on 84th Avenue waiting
to turn onto Nordel.
[51]
Mr. Akbari made a call to ICBCs dial-a-claim line about two hours after
the accident happened. He reported the accident as a hit and run. He said
there were two witnesses. Dorothy Berry, the ICBC adjuster who testified for
the defence, agreed that the information provided in the initial telephone
report was consistent with the information later provided by Mr. Akbari when he
met with her to provide a description of the accident. As Mr. Akbari was not
cross-examined on any apparent inconsistencies in the statement, I infer that there
were none.
[52]
The defendant submits that I should disbelieve the plaintiffs testimony
that the accident was caused by the negligence of an unidentified motorist, who
crossed Nordel against a red light and cut off Mr. Akbaris vehicle, forcing
him to take evasive action, and resulting in the collision between Mr. Akbaris
vehicle and the light standard. The defendant submits, and I agree, that Mr.
Chinchillas testimony should be rejected as incredible. The defendant submits
that the Court should accept the testimony of B. and S. Shiles that there were
no vehicles westbound on 84th Avenue immediately prior to the
collision.
[53]
I am not persuaded by these submissions. I found the testimony of Mr. Akbari
and Mr. Perez about how the accident happened to be credible and persuasive. I
am satisfied that it is more probable than not that a westbound driver on 84th
Avenue negligently crossed Nordel, contrary to a red light for traffic entering
from 84th Avenue; and entered the intersection when Mr. Akbaris
vehicle was so close to the intersection as to pose an immediate hazard.
[54]
I am satisfied that it is more probable than not that Mr. Akbari was
forced to take evasive action to avoid colliding with the vehicle crossing his
path; and that in doing so, his vehicle swerved on the wet roadway, spun out of
control, and collided with the light standard. I am not satisfied that Mr.
Akbaris actions were negligent or that he failed to meet the standard of care
required of a reasonably prudent driver in the circumstances. I am not
persuaded that Mr. Akbari was driving at an excessive speed. I accept that Mr.
Akbari was anxious to get to the Skytrain Station to meet his sister, but
according to the testimony of Mr. Perez, Mr. Akbari had slowed his vehicle as
he approached the intersection and only began to accelerate when the light
turned green for traffic on Nordel; and was not exceeding the speed limit as he
neared the intersection.
[55]
I am satisfied that B. and S. Shiles are honest witnesses, who were
doing their best to recall events that happened some time ago; but that they
were mistaken in their recollection of events immediately before the accident.
Neither of them had any particular reason to notice or recall whether they
passed vehicles westbound on 84th Avenue as they turned right off
Nordel. Both men agreed they drove through the intersection very often; it is
unlikely that they would take particular note of the presence of other
vehicles. They were not asked about the presence of other traffic vehicles at
the intersection until January 10, 2011, more than a month after the night in
question.
[56]
There is also the fact that both B. and S. Shiles recall hearing two
bangs. Both men testified that it was the first loud sound that caused them
to look back at the intersection and that the second bang they heard was the
sound of Mr. Akbaris vehicle striking the light pole. The evidence does
not provide any explanation for the first bang the two men recall, however,
as there is no evidence that Mr. Akbaris vehicle struck any other obstacle
before it hit the light standard. If, as I infer, neither witness attention
was drawn to the intersection until they heard the sound caused by Mr. Akbaris
vehicle striking the pole, the south-turning vehicle that crossed Mr. Akbaris
path could already have been speeding away and it is unlikely that either
witness would have noticed it or recalled seeing it.
[57]
Mr. Akbari and Mr. Perez were both shaken up by the accident, but both
told the first police officer on the scene − Constable Da Silva −
that Mr. Akbari had swerved to avoid hitting a vehicle that ran a red light and
crossed their path. Constable Da Silva arrived no more than a few minutes
after the collision happened. Both Mr. Akbari and Mr. Perez recalled the other
vehicle as a small, light-colored car. It would have taken more presence of
mind than I believe they possessed at the time, to concoct and agree upon a
false story in the few minutes between the time the accident happened and the
time Constable Da Silva spoke to them. Both men have consistently maintained
that the accident was caused by the driver of an unidentified vehicle crossing
their path. Although Mr. Akbari and Mr. Perez knew each other and were
co-workers, the evidence does not support a conclusion that they were close
friends.
[58]
In closing submissions, counsel for ICBC provided examples of alleged
inconsistencies in Mr. Akbaris testimony that, the defendant submitted,
should cause the Court to doubt the reliability of Mr. Akbaris testimony.
Most of these inconsistencies were so minor as to be inconsequential; and in
other instances, I am satisfied the evidence was misinterpreted or
misunderstood by counsel. One of the alleged inconsistencies related to
whether Mr. Akbari called his girlfriend immediately after the accident or she
called him. On discovery, Mr. Akbari recalled that he tried to call her; at
trial, he testified she phoned him. The latter answer is consistent with the
telephone records. I am not persuaded this is anything other than a lack of
recall of an event that was insignificant at the time. Other apparent
inconsistencies were explained by Mr. Akbari. In any event, the
inconsistencies do not cause me to doubt that accuracy or truthfulness of Mr.
Akbaris testimony about how the accident happened.
[59]
The defendant submits that even if I conclude that the accident happened
as Mr. Akbari says it did and that the accident was caused solely by the
negligence of the unidentified driver, Mr. Akbari is nevertheless not entitled
to recover damages for his injuries because of the application of Section 24 of
the Insurance (Vehicle) Act. Section 24 provides that a judgment must
not be given against ICBC as nominal defendant unless the court is satisfied
that a plaintiff has made all reasonable efforts to ascertain the identity of
the unknown driver and/or owner; and the identity of those persons is not
ascertainable.
[60]
Counsel referred the Court to various authorities in which the application
and interpretation of s. 24 have featured. These authorities indicate that
what constitutes all reasonable efforts will depend on the factual matrix
present in each case. Counsel cited Houniet v. ICBC, [1982] B.C.J. No.
692; Meghji v. ICBC, [1998] B.C.J. No. 3107; Leggett v. ICBC,
[1992] B.C.J. No. 2048 (C.A.); Morris v. John Doe, 2011 BCSC 253; Balicki
v. ICBC, 2004 BCPC 175; Becker v. ICBC, 2002 BCSC 1106; and Tessier
v. City of Vancouver and ICBC, 2002 BCSC 1938; Jennings v. Doe, 2010
BCSC 1595; Vandervyl v. ICBC, unreported, BCSC Vancouver Registry, No.
C906820, March 31, 1993; Larsen v. Doe, 2010 BCSC 333;
[61]
I am satisfied that Mr. Akbari did make all reasonable efforts to
ascertain the identity of the unknown driver in the circumstances that
pertained here. Mr. Akbaris vehicle could not be driven and he was injured
and in pain; he could hardly be expected to attempt to pursue the southbound
vehicle on foot. Mr. Akbari told the attending police officer −
Constable Da Silva − that another vehicle had been involved and he
provided a description of the vehicle as a light-colored – white or silver –
small car. Mr. Perez confirmed the involvement of the other vehicle and the
description. Constable Da Silva obviously considered there to be little or no
prospect of locating the suspect vehicle even minutes after it had left the
scene; he did make any effort to do so, or to alert other patrol cars to search
for the vehicle.
[62]
Mr. Akbari recalls having inquired of Messrs. Shiles at the scene to find
out if they had seen the vehicle that crossed his path. The accident was
reported to the defendant as a hit and run within two hours after the
collision happened. Both Mr. Akbari and his father provided statements to
ICBC. Upon learning from his counsel of his obligation to attempt to ascertain
the identity of the driver who left the scene, Mr. Akbari posted a sign at the
intersection asking any witnesses to come forward. If any part of Mr.
Chinchillas testimony is to be believed, it is that he saw the sign on the
past at the intersection, and it was that sign that prompted him to contact
ICBC and, eventually, Mr. Akbaris counsel.
[63]
Mr. Akbari also contacted Constable Da Silva a few days after the
accident and asked whether there was a traffic camera at the intersection where
the accident happened. Constable Da Silva said if there was a camera, it
likely took only one photo − when the light turned green − but he
said he would check and get back to Mr. Akbari. It was reasonable for Mr.
Akbari to assume that there was no camera − or no useful footage −
when he heard nothing further from Constable Da Silva.
[64]
When Mr. Akbari realized that Ms. Berry did not know about Mr.
Chinchilla and his claim to have witnessed the collision, he made sure that Ms.
Berry was provided with the phone number he had for Mr. Chinchilla.
[65]
Counsel for the defendant suggested to Mr. Akbari that he should have
canvassed the residents of the townhouse complex located near the intersection
to search for possible witnesses, but I consider that would have been a fools
errand. The photographs of the scene indicate that the townhouse complex is
some distance off the roadway and that it is highly unlikely that anyone in the
townhouse complex would have been able to see anything happening in the
intersection, particularly late at night, when it was dark and raining. The
resident who did call to report the collision only did so because she heard the
sound of the crash.
[66]
Counsel also suggested that Mr. Akbari could have staked out the intersection
to see if he could spot the vehicle that crossed his path. Again, this would
have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall
anything more specific than the fact that the other vehicle was a light-colored
small car.
[67]
To summarize, I am satisfied that it is more probable than not that the
accident was caused by the negligent actions of an unidentified driver who
entered the intersection from 84th Avenue against a red light; and
drove across Nordel, cutting off Mr. Akbaris vehicle when it was so close to
the intersection as to pose an immediate hazard. I am satisfied on the balance
of probabilities that Mr. Akbari did not fail to meet the standard of care
required of a reasonably prudent motorist when he swerved to avoid colliding
with the vehicle crossing his path.
[68]
I am also satisfied that Mr. Akbari made all reasonable efforts to
ascertain the identity of the unknown driver; and that the unknown drivers
identity is not ascertainable.
DAMAGES
[69]
Mr. Akbari had some cuts on his hands from broken window glass; and a
small cut on his head that were bleeding at the scene of the accident.
Ambulance personnel wiped the blood away but no stitches were required. Mr.
Akbari was also limping. Mr. Akbari testified that when he woke up the day
after the accident his whole body was in pain. His sister, who is a nurse,
drove him to a clinic. Mr. Akbari testified that he used a cane for two weeks
because he could not walk well. He said he had pain in his back and his chest,
his arms were bruised; and his hands hurt for three weeks.
[70]
The only medical evidence is the report of Dr. Pardeep Rai, dated June
2, 2011. The defendant did not require Dr. Rais attendance at trial for
cross-examination. Dr. Rais report indicates that Mr. Akbari was first seen,
following the accident, by Dr. Rukavina, on December 9, 2010. I infer that Dr.
Rukavina practises in the same clinic as Dr. Rai, although Dr. Rai did not
indicate that in his report, because Dr. Rai appears to have had access to Dr.
Rukavinas clinical notes.
[71]
Dr. Rai reported that on December 9, Mr. Akbar was complaining of an
abrasion to his left hand, and tenderness in his left calf, knee and thigh. He
had normal grip strength in the left hand. The left leg was tender when
palpated and there was some swelling in the thigh, knee and calf, but normal
range of motion. According to the notes, Dr. Rukavina advised Mr. Akbar to
take a week off work, and prescribed a muscle relaxant and anti-inflammatory
medication.
[72]
By December 20, when Dr. Rai saw Mr. Akbar for the first time, Mr. Akbar
was complaining of ongoing pain in his left calf, increased by weight-bearing.
The swelling in the leg had decreased, but the calf remained tender to
palpation, and Mr. Akbar was unable to point his foot downward and could
not stand on his toes. Dr. Rai recommended stretching exercises; a further
week off work; and to continue with the medications previously prescribed.
[73]
On December 29, Mr. Akbar saw Dr. Chemerika at the clinic. He was still
reporting ongoing left hip and calf pain. He said he was unable to play
soccer. On examination, Dr. Chemerika noted tenderness to palpation in the
left calf; and a tender hip flexor (the inside groin region of the thigh) when
Mr. Akbar lifted his thigh. However, Dr. Chemerika must have seen considerable
improvement in Mr. Akbars condition as he or she recommended a return to work;
and that Mr. Akbar have physiotherapy.
[74]
Mr. Akbar did not see a doctor again until February 28, 2011. In the
interim, he had physiotherapy on February 4, 7, and 16. On February 28, Mr.
Akbar told Dr. Rai that he was still having some left calf pain but that
the physiotherapy had helped to reduce the pain. There was only mild
tenderness in the left calf, and the swelling was gone. Dr. Rai advised Mr.
Akbar to continue with physiotherapy.
[75]
Mr. Akbar had physiotherapy on March 2, 18 and 30. He testified that he
stopped going to physiotherapy because he could not afford it.
[76]
He returned to see Dr. Rai on May 13, 2011. He reported that the left
calf pain was better and he had only occasional cramps at night that resolved
within seconds. During heavy exercise he had some mild left hip and calf
pain. He had good range of motion, no swelling and only mild tenderness in the
left hip. There was no indication of tenderness remaining in the calf. Dr.
Rai advised Mr. Akbar to take on all activities he could tolerate and
discontinue physiotherapy.
[77]
In summary, Dr. Rais opinion is that the most likely diagnosis is soft
tissue injury − also described as tendonious strain − affecting
Mr. Akbaris left calf, knee and thigh. He ruled out major tearing of muscles,
although he could not exclude minor tearing. The recovery period, according to
Dr. Rai, was 8 to 10 weeks.
PAST LOSS OF INCOME
[78]
At trial, Mr. Akbari was not certain how much time he had taken off work
after his injuries; and whether he took the time off as paid vacation; or
otherwise. Ms. Demosten, a Manager in Human Resources at Genco Distribution,
provided ICBC with a certificate of earnings indicating that Mr. Akbari lost $1,511.84
in gross pay and was off work due to the accident injuries from December 8,
2010 to December 22, 2010. She clarified her calculation at trial and adjusted
the gross pay loss to $1,463.44. She testified that Mr. Akbari had originally
booked time off for vacation from December 20 to 24 and had requested unpaid
leave from December 24 to 27, but following the accident did not take all of
the time as vacation, because of the accident. He returned to work on December
27.
[79]
Ms. Demosten also testified that when Mr. Akbari returned to work, he
worked regular full-time hours, but there were some modifications to his duties
to accommodate his injuries; although she could not recall any specifics, or
for how long the modified duties had lasted. Mr. Akbari testified that when
he went back to work he resumed training to be a lead hand, and essentially
worked light duties for a period of six weeks. Eventually he gave up the
lead hand position because he preferred to work a different shift.
[80]
Mr. Akbari testified that his employment with Genco had been terminated
on August 8, 2011 and that he had been dismissed for poor attendance and for
being late to work. Mr. Akbar does not allege that he lost his job because of
his accident injuries.
[81]
Mr. Akbari testified at trial that he was hoping to find an office job,
or a job in a call centre, or a sales job at Metrotown, where a friend was
working. He agreed that his doctor had told him he could take on any physical
activity that he could tolerate, but he hoped to find work that did not involve
a lot of physical labour.
[82]
I conclude that Mr. Akbari was disabled from his employment for a period
of two weeks. I award him the sum of $1,237, calculated by deducting from his
$1,463 gross pay an adjustment for income tax and employment insurance
deductions, for a net award of $1,237. Dr. Chemerika recommended on December
28, 2010 that Mr. Akbari return to work and Mr. Akbari had essentially
made a full recovery by the time he was seen by Dr. Rai in May 2011.
LOSS OF CAPACITY TO EARN INCOME IN FUTURE
[83]
I am satisfied that Mr. Akbari has made a full recovery and that his
capacity to earn income in future has not been impaired by the accident
injuries. I make no award for loss of capacity to earn income in future.
SPECIAL DAMAGES
[84]
Mr. Akbari proved special damages of $385 for medications and
physiotherapy and I award this sum. He also claimed $310.02 for vehicle
towing, but he did not plead this claim; and sought only damages for personal
injury in his Notice of Civil Claim. It may be that Mr. Akbari is entitled to
recover the cost of vehicle towing, but it is not a special damage that may be
claimed in this action as it was not pleaded.
COST OF FUTURE CARE
[85]
The evidence does not support any award for cost of future care.
NON-PECUNIARY DAMAGES
[86]
I have already referred to Mr. Akbaris testimony about the discomfort
he felt, specifically in his left leg, in the weeks and months following the
accident. He also had pain in his left hand, and generalized pain for a
couple of weeks after the accident. I am satisfied he had made a full recovery
by the time he saw Dr. Rai in May 2011. Mr. Akbari testified that his leg
injury interfered with his ability to play recreational soccer and also with
the heavier weight-lifting exercises he does at his gym. Mr. Akbari believes
that he cannot lift as much weight now, especially in a squat position, as he
did before the accident.
[87]
The defendant submits that the appropriate range for an award of
non-pecuniary damages is $2,500 to $3,000. The plaintiff is seeking an award
of $25,000.
[88]
The defendant cited Seto v. Ng, 2009 BCPC 218; and Gill v.
Mansour, 2004 BCSC 634 in support of its suggested range of damages. The
plaintiff relies on Lehtonen v. Marasco, 2008 BCSC 1734; Laxdal v.
Robbins, 2009 BCSC 1074; Shen v. Buchanan, 2006 BCSC 432; and Claydon
v. ICBC, 2009 BCSC 1077. The period of recovery in the cases cited by the
plaintiff was considerably longer than the eight to 10-week period in this
case, as described by Dr. Rai; or even the five months preceding Mr. Akbaris
last visit to Dr. Rai, as described in the medical report.
[89]
The award in Seto v. Ng, cited above, appears low and the learned
Provincial Court Judge did not refer to any authorities establishing the
appropriate range. Justice Ehrcke found in Gill v. Mansour, cited
above, that the plaintiff was essentially recovered in six weeks and that the
plaintiff had exaggerated his symptoms during a holiday taken after the
accident.
[90]
I award the plaintiff the sum of $12,000 for non-pecuniary damages.
SUMMARY OF DAMAGES
[91]
I award the plaintiff the following damages:
Non-pecuniary damages: $12,000
Past Loss of Income: $1,237
Special Damages: $385
COSTS
[92]
I am not aware of any reason why the plaintiff should not have his costs
of this action, on Scale B. If there are matters that should be drawn to the Courts
attention relevant to costs, such as pre-trial offers of settlement, the
parties may make submissions in writing, or, if both counsel agree, may arrange
with the Registry to attend to make oral submissions. Written submissions
should be delivered no later than January 31, 2013. If the parties agree to
make oral submissions, they should arrange with Trial Scheduling to appear
before me. The appearance need not be before January 31, 2013, but the arrangements
to appear should be made before that date.
W.G. Baker J.