IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130510

Docket: S089190

Registry:
Vancouver

Between:

Marko Jurisevic

Plaintiff

And

Megan A. Rideout

Defendant

– and –

Docket: M094353

Registry:
Vancouver

Between:

Marko Jurisevic

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

– and –

Docket: S116345

Registry:
Vancouver

Between:

Marko Jurisevic

Plaintiff

And

Gu Xiao

Defendant

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
The plaintiff, who represents himself, has been in 12 road accidents
between 1996 and 2012. In the first three of these accidents he was driving a
car. In the following nine accidents he was riding a bicycle. He has brought
three separate actions involving three of the nine cycling accidents. These
three actions were heard by me at the same time.

[2]            
Action No. S089190 was commenced on September 8, 2009, and relates to an
accident that occurred on December 20, 2006 (“Accident #1”). Action No. M094353
was started on September 8, 2009, and relates to an accident that occurred on
September 7, 2007 (“Accident #2”). The third action, S116345 was filed on
September 21, 2011, and relates to an accident that occurred on September 22,
2009 (“Accident #3”).

[3]            
The plaintiff claims that the injuries he received in each of these
three accidents have caused him to become permanently disabled. He is seeking
compensation under all available heads of damage.

[4]            
Liability is not admitted. The same counsel represents the named defendants
with regard to Accidents #1 and #3, and ICBC in Accident #2. Counsel takes the
position that Accidents #1 and #3 should be dismissed because they were caused
by the plaintiff’s negligence. Accident #2 should be dismissed against ICBC due
to the failure of the plaintiff to make reasonable efforts to ascertain the
driver of the vehicle that he says hit him.

[5]            
Counsel takes the position on behalf of all the defendants that although
the plaintiff suffered some injuries from these three accidents, he is grossly
exaggerating his complaints and is not disabled, or not nearly as disabled as
he wishes us to believe. Further, defendants’ counsel submits that any problems
that the plaintiff does experience today are the result of prior injuries from his
other accidents, and an element of genetic predisposition, which the subject
accidents may have aggravated, but did not initiate.

I.                
credibility

[6]            
The plaintiff was not a very credible witness. His evidence in chief was
often contradicted in cross-examination, and he had made a number of prior
inconsistent statements at his two examinations for discovery, and in his
statements to ICBC. The medical documents recorded statements made by him to
health professionals which were inconsistent with his evidence at trial. He professed
to being unable to remember dates and details accurately. In the words of
Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398, he did not seem able
to “resist the influence of interest to modify his recollection.”

[7]            
The significant inconsistencies in the plaintiff’s evidence are too
numerous to mention, but a couple of examples are:

a)   
Following a cycling accident in January 2006 (11 months prior to the
accidents which are the subject of these actions) the plaintiff made a
statement to ICBC that:

I worked from late November 2004 to late September October
with Cressey. The company was called Tupper Street Development. I worked as a
carpenter. I was paid $24/hr. I worked full time. I have a record of employment
from Cressey. I am currently employed by Hamilca Barca Developments as a
carpenter.

In actual fact, the plaintiff only earned $3,820 from Tupper
Street Development in 2004 and 2005. The other evidence indicated that he never
worked full time for any company, but rather sporadically, earning small
amounts per year. He insisted that he had worked more than shown in his income
tax returns, or T4s, but when pressed was unable to name any other employers.
He insisted that he earned wages while travelling, but the passport documents
that he produced only went up to 2002.

b)   
The plaintiff testified that he is totally disabled from these three
accidents and is in constant pain, every day.

The surveillance tapes illustrate
the plaintiff easily walking to and from the bus stop, boarding the bus,
lifting a walker and placing it into a pick-up truck, jogging across the
street, and rollerblading. I found the use of a walker by the plaintiff as he
entered the office of Dr. Pyper for an independent medical examination
requested by the defendants to be particularly revealing. The surveillance tape
shows him striding from his house to his truck, carrying a walker, lifting it
above his head with ease and smoothly swinging it into the truck, jogging
across the road back to his house, returning to the truck and climbing into it.
Yet when he arrived in the truck at the appointed location, he purported to
need it to walk up the path to the doctor’s office.

[8]            
I also suspect the plaintiff was lying when he denied being involved in
any accidents between 2000 and 2006, or the one in 2012 with Mr. Dos Santos.
The defendants had to call Mr. Dos Santos as a witness to establish that the
plaintiff had ridden out of an alley-way into the side of Mr. Dos Santos’ vehicle
in February of last year.

[9]            
At the end of the plaintiff’s testimony, I was left with an unclear and
unreliable picture of how the accidents could have happened, what were his
resulting injuries, what complaints he suffered after each accident, and to
what extent they continued until today.

[10]        
There was some corroboration of his testimony in the documentary
evidence and the evidence of third parties, but where his evidence was
contradicted by the documents or these other witnesses, I chose to discount the
plaintiff’s evidence and give greater weight to the other evidence.

[11]        
I found the rest of the witnesses, including the named defendants, to be
reasonably reliable in their testimony and to be unassailed by
cross-examination. As a result, where they conflicted with the plaintiff’s
versions, I preferred Ms. Rideout’s version of Accident #1, Ms. Gu’s
version of Accident #3, and Ms. Comeau’s version of the disclosure of the
identity of Mr. Grewal as the owner of the vehicle involved in Accident #2.

II.              
liability

A.             
Accident #1

[12]        
The plaintiff testified that he was cycling northbound on Cambie Street
between 1:00 and 3:00 p.m. Due to construction for the Canada Line, the
three lanes northbound on Cambie converged into the single curb lane at 16th Avenue.
The accident happened between 14th and 15th Avenue.

[13]        
He said as he approached 15th Avenue, the defendant merged from the
second or third lane into the curb lane at a 45 degree angle. She did not
appear to have seen him as she came into the curb lane. The plaintiff was pressed
against it and started yelling, but she still did not appear to see him. He was
out of space on the roadway, so he jumped his bike from the curb onto the
sidewalk to avoid a collision.

[14]        
He said that the defendant continued northbound for about one half a
block and then turned into a driveway to a parking lot off Cambie while the
plaintiff was cycling on the sidewalk. They collided well onto the sidewalk. He
said she completely cut him off and he had no option but to hit her car.

[15]        
On cross-examination, the plaintiff gave several different versions of
Accident #1. Early on he said he was travelling beside the vehicles in the
curb lane of Cambie between 14th and 15th Avenue. The defendant cut him off and
he impacted her car. Later he said he jumped onto the sidewalk as the defendant
darted into the parking lot. He said she kind of jumped up in front of him at
an angle forcing him into the curb. Then he said he was very close behind the
defendant, just behind her back bumper when she started her turn into the
parking lot.

[16]        
On his examination for discovery he said he was about one car length
behind the defendant when she decided to turn. In answer to a later question,
he said he was not on the sidewalk at the point she started to make her turn.

[17]        
Later in cross-examination he again said he hopped up on the curb at the
alley-way, about one half a block from the driveway into the parking lot. He
swerved to the right, but impacted the far right side of the defendant’s
vehicle. He said she was almost three quarters of the way into the driveway
when they collided. Her whole car was in the driveway perpendicular to Cambie.

[18]        
The defendant testified that she had been driving eastbound on 16th
Avenue and was waiting to turn left at the intersection with Cambie Street. She
turned left into what she recalls as a single lane due to the construction. When
she turned right into the Little Blessings parking lot, she was in the curb
lane. She recalled signalling right and shoulder checking. She said the traffic
was slow due to construction. As she made her turn into the parking lot she
heard “hey, hey, hey,” and the next thing she knew, a cyclist rolled over onto
her hood.

[19]        
She insisted that the plaintiff hit her car, not the other way round.
She described the driveway into the parking lot as “crossing over the sidewalk.”
She was already in the sidewalk part of the driveway when the cyclist hit her.
Her back wheels may have been still partly on Cambie Street.

[20]        
She recalled that she was travelling very slowly and did not pass the
plaintiff at any time. She could not say whether he had been in the curb lane
or not, but she was already across the sidewalk when he hit her.

[21]        
The first time she saw the cyclist was after he hit her car. When she
heard the “hey, hey, hey,” she did not see him, but she stopped her car anyway.
Then he hit her.

[22]        
I find that it is more probable than not that the plaintiff was
travelling behind the defendant in the single curb lane, and she was not aware
of his presence. He was travelling faster than the motor vehicles in that lane
and passing to the right of them along the curb. At some point, out of
frustration at the construction, or slowness of the traffic, or mere convenience,
he jumped onto the sidewalk to continue passing the slow, congested traffic on
his left. He saw the plaintiff start to turn right into the parking lot and
shouted at her, but he was going too fast to avoid a collision.

[23]        
Section 183 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, imposes
the same rights and duties on a cyclist as a driver of a motor vehicle (Sivasubramaniam
v. Franz, 2008 BCSC 1089, aff’d 2010 BCCA 210). One of those duties is not
to ride on a sidewalk unless authorized by bylaw (s. 183(2)(a)). Another duty
is not to overtake and pass on the right of a vehicle (s. 158(1)), and in
particular not to do so by driving off the roadway (s. 158(2)(b)).

[24]        
The plaintiff’s conduct in riding on the sidewalk to bypass the traffic
to his right was prohibited by two different sections of the Motor Vehicle
Act, and was unlawful.

[25]        
The defendant, on the other hand, was lawfully negotiating a right-hand
turn into the driveway of the parking lot.

[26]        
The lawfulness or lack thereof of each party’s conduct is important. As
long as the defendant exercised the care required of a driver in those
circumstances, and I find that she did, she was not under a duty to ensure that
a cyclist was not unlawfully and negligently trying to pass her to her right on
the sidewalk (George v. Kembel, [1994] B.C.J. No. 2372 (S.C.)).

[27]        
Furthermore, the plaintiff did not see the defendant because he was
behind her, but the defendant saw the plaintiff, as evidenced by his calling
out “hey, hey, hey” to her. He was travelling too fast to be able to stop.
Given that he was riding quickly on the sidewalk, he had a heightened duty to
take reasonable care for his own safety (Hadden v. Lynch, 2008 BCSC
295). I find that he did not take reasonable care for his own safety.

[28]        
I find that the plaintiff’s negligent conduct is the sole cause of the
accident and his case must be dismissed against Ms. Rideout.

B.             
Accident #2

[29]        
There is only one version of Accident #2, because no driver was
identified and no witnesses were called to testify to this accident.

[30]        
The plaintiff said he was travelling northbound on Cambie Street. He
stopped at the traffic lights at Broadway. There was a car in front of him and
a car behind him. The traffic light turned green and the traffic started to
move. There was another car facing eastbound that was stopped at the stop sign
at the intersection of Cambie Street and 8th Avenue.

[31]        
The plaintiff said that as the car in front of him passed 8th Avenue, the
eastbound car stopped on 8th Avenue hit the gas and tried to cross Cambie
Street just as the plaintiff was entering the intersection. The plaintiff said
the accident was unavoidable, he looked the driver in the eye but impact
occurred. He did not remember anything further until he was being loaded into
an ambulance. He said there were lots of witnesses, the police attended, he did
not want to leave the scene but the police constable said she would come to the
hospital and give him witness names and give him the location where he could
retrieve his bicycle.

[32]        
At trial, he continued to deny that he knew the owner of the vehicle
that struck him. At his examination for discovery held on December 13, 2011, he
said:

Q         All right. I understand that you have now identified
who you think hit you? That is the subject of this action?

A          Well, I’m going
by what — what — I finally had to find out through the freedom of information
through ICBC’s records who actually hit me. I believe it was Jagdeep Singh or
something like that. But I didn’t find out for 8 to 12 months later or a long
time afterwards. Nobody — nobody told me the hit and run driver’s name or
information or anything.

[33]        
Also on discovery he said he planned to apply to add Jagdeep Singh, or
whoever it was driving the vehicle, as a defendant to this action.

[34]        
At trial, the plaintiff said the name Jagdeep Singh had been passed on
to him verbally from the police. He tried to suggest it was not the same name
as the actual owner of the vehicle, Jagdeep S. Grewal. He said he eventually
got the name through a Freedom of Information request (“FOI”). He knew a name
had been found, there was a name floating around, but there were no specifics.
He knew he would have to amend the writ and add the name of the defendant. He said
he only obtained Mr. Grewal’s address shortly before bringing an application in
March 2013 to add Mr. Grewal as a defendant. The master dismissed his
application. The plaintiff did not appeal the master’s decision. He admitted
that he knew the identity of the driver had been ascertained in 2008, or maybe
2009.

[35]        
Susan Comeau, the handling adjuster for Accident #2, testified that the
plaintiff made a FOI request of ICBC on August 15, 2008. About a thousand pages
worth of claims information was sent to him by the end of September 2008. This
information included a CL75, which was a claims form showing Grewal,
Jagdeep S. as the name of the driver who hit the plaintiff and his vehicle
plate number, 776DCH. The contact information for Mr. Grewal was blacked out before
the document was provided to the plaintiff.

[36]        
Ms. Comeau said even if the plaintiff had asked his adjuster to provide
the contact information for Mr. Grewal, the adjuster would not be allowed to
release it.

[37]        
Ms. Comeau did not have the initial FOI request form, but testified that
it is ICBC’s policy to send the requested information to the address on file,
which in this case was 3855 Tupper Street, the plaintiff’s father’s home.

[38]        
I find that it is more probable than not that by the end of September
2008 the plaintiff had all the information he needed to ascertain the identity
of the owner, if not the driver, of the vehicle he alleges hit him.

[39]        
The plaintiff has given no rational explanation why he waited over four
years and only two weeks before trial to seek leave to add Mr. Grewal as a
defendant. His application materials filed in March of this year showed that he
was able to ascertain both Mr. Grewal’s identity and contact information.
ICBC’s refusal to disclose Mr. Grewal’s address or phone number may have
prolonged the process of identifying the defendant, but not by four years.

[40]        
Section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231
[IVA], states:

24 (1) If bodily injury to or the death of a person or
damage to property arises out of the use or operation of a vehicle on a highway
in British Columbia and

(a) the names of both the owner and the driver of the
vehicle are not ascertainable,

any person who has a cause of action

(c) as mentioned in paragraph (a), against the owner or the
driver,

in respect of the bodily injury, death or property damage may
bring an action against the corporation as nominal defendant, either alone or
as a defendant with others alleged to be responsible for the injury, death or
property damage, but in an action in which the names of both the owner and the
driver of the vehicle are not known or ascertainable, recovery for property
damage is limited to the amount by which the damages exceed the prescribed
amount.

(5) In an action against the corporation as nominal defendant,
a judgment against the corporation must not be given unless the court is
satisfied that

(a) all reasonable efforts have been made by the parties to
ascertain the identity of the unknown owner and driver or unknown driver, as
the case may be, and

(b) the identity of those persons or that person, as the
case may be, is not ascertainable.

[41]        
The purpose of this section was described by Taylor J. in Legatt v.
ICBC (1992), 72 B.C.L.R. (2d) 201 at paras. 9-11:

In my view the overall purpose of the section is to limit the
exposure of the corporation to claims brought by persons who, in the matter of
seeking to identify those responsible for the accident, have done everything
they reasonably could to protect what ordinarily would be their own interests,
and which, by virtue of the section, become the interests of the corporation.

The corporation’s exposure under the section is limited to
claims brought by those who could not have ascertained the identity of
the parties responsible. It does not, in my view, extend to claims by those
who have chosen not to do so.

I do not think the words “not ascertainable” should be
strictly interpreted, so as to mean “could not possibly have been ascertained”.
I think they are to be interpreted with reference to subsection (5) so as to mean
“could not have been ascertained had the claimant made all reasonable efforts,
having regard to the claimant’s position, to discover them”.

[Underlined emphasis added.]

[42]        
The case at bar is not the situation of a true hit and run where no witnesses
were available and no one had been able to record the licence plate number of
Mr. Grewal’s car. Somehow that information made it into the files of ICBC,
and perhaps the police files, if the plaintiff is to be believed. The plaintiff
deliberately chose to ignore the information he was given, and simply sue ICBC
as a defendant instead of acting to protect his own rights.

[43]        
As I am not satisfied that the plaintiff has met the pre-conditions of
s. 24(5) of the IVA, I cannot give judgment against ICBC.

[44]        
The action against ICBC must be dismissed.

C.             
Accident #3

[45]        
The plaintiff testified that on September 22, 2009, he was cycling for
exercise on a beautiful day. He was travelling eastbound on 10th Avenue near
Windsor Street, or Glen Drive, in East Vancouver. There were signs posted for a
designated cycle route. The street had cycle signs at the end of each block. It
was a thin narrow street with parking on both sides and a single lane of travel
in between. Parking was for residents only.

[46]        
The accident happened around 1:00 or 2:00 p.m. The defendant was parked
facing west on 10th Avenue. She was about three car lengths from the
intersection. The plaintiff said that as he rode through the intersection, the
defendant pulled out of the parking space and started driving westbound on 10th
Avenue. He said she pulled out just as the plaintiff was riding by. They both
tried to stop, but collided. The plaintiff hit the right front end of her hood
and tumbled off and onto his side onto the concrete pavement.

[47]        
On cross-examination, the plaintiff admitted there was no specifically
delineated bike lane, although there were decals on the roadway pavement and it
was clearly marked. He described it as “bike friendly.” On his discovery he had
said it was a designated bike path marked by white lines and that the defendant
had crossed into those lines. On cross-examination he also said that he was
only guessing there was parking on both sides of the street. He was not sure if
it was only on one side.

[48]        
More importantly, on cross-examination, he said at the point of impact the
defendant had fully pulled out from her parking spot and was in the middle of
the road. She had only travelled about one and a half car lengths
straightforward, i.e. one or two seconds of travel. He saw her car just before
she squared off and he hit his brakes. Later in his cross-examination he said
at the point of impact she had slowed down, they both had, but he did not know
if she had stopped.

[49]        
The plaintiff accused the defendant of trying to drive away from the
scene of the accident. He said there was another cyclist, Sharon Gordon, who
witnessed the accident and prevented Ms. Gu from leaving the scene. The
plaintiff did not call Ms. Gordon or any other witnesses.

[50]        
The defendant testified that she had just borrowed some DVDs from the
VCC Library and returned to where her car was parked on 10th Avenue. The
closest cross street was Glen Drive. It was a quiet side street, narrow, with
cars parked on both sides. Not too many pedestrians were about. She was parked
facing west on the right side of the road.

[51]        
When she returned to her car from the library she started to pull out
from her parking space, rather slowly, because there were parked cars on either
side of her. She approached the end of the block. The cross street, Glen Drive,
was at a slight downward slope towards her. Cyclists were coming down from the
top of the slope at a fast speed. She stopped completely, hoping they would
come down the slope and carry on. She was trying to avoid them.

[52]        
The plaintiff, who was among the cyclists on Glen, did not carry on down
the slope but made a right turn onto 10th Avenue and hit her car. His head was
turned, looking back, and he was going really fast. The back wheel of his bike
was damaged.

[53]        
On cross-examination the defendant said the street was not reserved for
residential parking only. There was a section where the public could park for
up to two hours and another section that required a permit.

[54]        
She said she first saw the plaintiff when he was on Glen Drive coming
down the slope. She immediately stopped. She could not recall if he was in the
intersection at the time she stopped. It was really hard to estimate his speed
because he was going fast.

[55]        
When asked whether and how she tried to avoid him, she said when she saw
him coming down the slope of Glen Drive, she stopped completely. She hoped he would
carry on through the intersection, but he turned into her street at the last
second. Her car was stationary in the middle of a narrow street with parked
cars on both sides and she could not move to the right or left. In one to two seconds
from turning he crashed into her. He was going too fast and looking behind him.
By the time he turned his head around, the crash had already happened.

[56]        
I find on a balance of probabilities that the accident likely happened
as Ms. Gu described it. I find that she was stopped, waiting for the
plaintiff to pass through the intersection. He carelessly, and negligently,
turned right into her. She was there to be seen; she could not move to avoid
him. He was not looking straight ahead and made a right turn in total disregard
of Ms. Gu’s vehicle, and his own safety. I find the plaintiff wholly at fault
for Accident #3.

[57]        
Thus this action, too, must be dismissed on a finding of no liability of
the defendant.

III.            
conclusion

[58]        
The plaintiff has failed, on a balance of probabilities to prove
liability in all three actions. They must be dismissed with costs to follow the
event.

“Kloegman
J.”