IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150116

Docket: M113071

Registry:
Vancouver

Between:

Ehab Al-Tamimi

Plaintiff

And

Yita Eileen Ricci

Defendant

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
introduction

[1]            
Around 4:00 p.m. on December 30, 2010, the plaintiff, with his wife,
Eva Al-Tamimi, in the front passenger seat, was driving a 2001 Honda Civic
eastbound on Greystone Drive in Burnaby, B.C.. The defendant was driving a 1992
GM Saturn westbound on Greystone Drive. The cars collided almost head-on.

[2]            
The sole issue at trial was liability. For the reasons that follow, the
Court finds the defendant is solely liable for the collision.

II.              
facts

[3]            
Greystone Drive is a two-lane road running east-west, divided by a solid
yellow line in the area of impact. The road is flat. The speed limit in the
area is 50 km/h.

[4]            
Each driver had lived near the collision location for a number of years
and was familiar with Greystone Drive.

[5]            
The plaintiff and his wife each testified that they were returning home together
from grocery shopping in preparation for New Year’s Eve when the collision
occurred. Both the plaintiff and Ms. Al-Tamimi are approximately 40 years
old.

[6]            
The Court accepts the testimony of the plaintiff and Ms. Al-Tamimi
that, in the time immediately before the collision, everything was ordinary.
Neither had been drinking or taking drugs. Neither was distracted, such as by the
use of a cellphone or the car’s radio. The plaintiff’s car was in good
mechanical condition. The plaintiff was not tired and had no medical conditions
which would affect his driving. He requires glasses, which he was wearing at
the time of the collision.

[7]            
A fourth individual, following the defendant’s car at some distance, was
taking a video that captured the collision. This video confirms that the
driving conditions were quite acceptable. The road was dry, there was little
traffic, and the visibility was good. The video also confirmed that the
headlights of the plaintiff’s car were on. Unfortunately, the video was taken
at such a distance that it cannot be seen where each car was in the seconds immediately
before the collision.

[8]            
The plaintiff and Ms. Al-Tamimi each testified that, immediately
prior to the collision, they saw the defendant’s westbound Saturn enter the
eastbound lane in which their Honda Civic was travelling. Each testified that
the plaintiff braked hard and turned the steering wheel left to avoid the
collision (Ms. Al-Tamimi thought that the plaintiff may have turned the
wheel only slightly because there was little time to react). Each thought that
their Honda Civic was still entirely within the eastbound lane at the point of
impact.

[9]            
In cross-examination, Ms. Al-Tamimi was particularly vivid and credible
in her testimony in describing the surrealism “to watch this car just coming
towards you”; she “just couldn’t believe it”. She also clearly described that
she could not see the head of the driver of the approaching car. She could only
see the top of the seat where the head and the shoulder of the driver should
have been. Immediately before the impact, she closed her eyes and put her hands
over them.

[10]        
The defendant was called as a witness by the plaintiff. She appeared to
the Court to be in her twenties. She testified that she was driving to work at a
grocery store from her boyfriend’s residence. She testified that, prior to
leaving, she had phoned her employer to say that she would not be at her work
by her scheduled start time (3:45 – 4:00 p.m.). She testified that her employer
was understanding and told her that being a bit late would be “fine”. The
defendant testified that she had worked for her employer for approximately 8
years. It was unusual for her to be “running behind”.

[11]        
The defendant testified that she could not recall the collision itself.
She recalled leaving her boyfriend’s place and driving on the streets leading
to Greystone Drive. She had no recollection of driving on Greystone Drive.

[12]        
A photograph taken after the collision of the interior of the defendant’s
car showed an opened pop can, an unlit cigarette, and two small lighters. The defendant
conceded that it was possible she may have been drinking pop while driving. The
defendant testified that she smokes cigarettes and sometimes smokes and drives.
She testified that her usual routine was to pull over to the side of the road
to get a lighter from her purse to light a cigarette. She also testified that
she would often keep a cigarette and a lighter on the centre console for
convenience. The defendant conceded that she may not pull over to light a
cigarette if the cigarette and lighter were right on the console. She testified
that if the lighter had fallen on the floor, she would not have reached for the
lighter to light a cigarette while driving.

[13]        
To the east of the collision area, Greystone Drive has a moderate curve arcing
southwards and then continues to run east-west. In other words, if one were
driving a car westbound in the right hand lane and did not steer for the curve,
the car would drift into the eastbound lane.

[14]        
On a balance of probabilities, the Court finds that the sole cause of
the collision was the negligence of the defendant in allowing her car to move
into the eastbound lane in which the plaintiff was driving in an appropriate
and ordinary manner. The fact that the defendant may have been reaching for
something or similarly distracted would only serve to strengthen the finding.

III.            
The defendant’s post-crash STATEMENTS AND conduct

[15]        
The plaintiff and Ms. Al-Tamimi testified as to post-crash
statements and conduct of the defendant after the collision that could be viewed
as admissions against interest by the defendant. The Court has disregarded the
testimony of the plaintiff and Ms. Al-Tamimi with respect to the defendant’s
post-crash statements and conduct because the evidence supports the fact that
she may have been dazed by the collision. Accordingly, any statements or
conduct by the defendant would be insufficiently reliable to allow the Court to
draw any inferences or find an admission against interest.

IV.           
Accident reconstruction experts

[16]        
At trial, the plaintiff had two accident reconstruction experts and the
defendant had one. The Court ruled that all three were qualified to provide
expert evidence with respect to accident reconstruction.

[17]        
The plaintiff’s experts were of the view that the plaintiff’s car at the
point of impact was partially in the westbound lane. The left front wheel was
across the centre yellow line and in the westbound lane. The defendant’s car
was straddling the centre line, heading westbound, with its left front and left
rear wheels in the eastbound lane. The car was angled in a manner consistent with
returning to the westbound lane. The plaintiff’s experts were of the view that
the actual point of impact was in the eastbound lane.

[18]        
The defendant’s expert places the plaintiff’s car almost fully within
the westbound lane, with only its right rear tire still in the eastbound lane.
The defendant’s car is completely within the westbound lane, with the point of
impact in the westbound lane.

[19]        
The fundamental difference between the common opinions of the plaintiff’s
experts and the opinion of the defendant’s expert is whether a set of
post-impact tire marks are from the front or the rear tires of the plaintiff’s
vehicle. The plaintiff’s experts are of the view that the tire marks are from
the front tires; the defendant’s expert is of the view that the tire marks are
from the rear tires. The post-impact tire marks represent key evidence as to
the respective positions of the two cars as of the point of impact.

[20]        
From the testimony and reports of the three experts, it is readily
apparent that there are many variables that must be considered and estimated in
reconstructing the collision. Although the same laws of physics apply to the
collision of two cars as to the collision of two billiard balls on a billiards
table, the number of the variables associated with the collision of two cars that
cannot be determined with certainty is far greater.

[21]        
The experts took into account the post-accident evidence such as tire
marks, vehicle damage, fluid spills, and debris location to form their
respective opinions.

[22]        
The defendant’s expert was firm in his view that, if the laws of physics
were observed, the plaintiff’s reconstruction could not be correct. The
defendant’s expert expressed “a high degree of confidence that the point of
contact was in the westbound lane.”

[23]        
The Court finds the plaintiff’s experts’ common opinions should be
preferred over that of the defendant’s expert’s opinion.

[24]        
First, as the defendant’s expert acknowledged, in a professional manner,
he had made a mistake in his first report dated January 7, 2014. He first noted
the importance of fluid spills as useful indicators. He had then stated in his
report that a pool of fluid observed at the accident scene near the yellow
centre line likely came from the rear differential of the plaintiff’s car (the
plaintiff’s experts were each of the view that the fluid was from the front
areas of the two cars, near the point of impact). He subsequently acknowledged
his mistake when directed to the fact that, as a front wheel drive vehicle, the
plaintiff’s vehicle would not have a rear differential. The location of the
fluid was significant for the defendant’s expert’s first report, because it
served to confirm his opinion as to the position of the plaintiff’s car at the
point of impact. In the defendant’s expert’s second report dated May 5, 2014, a
further explanation was not provided.

[25]        
Second, in cross-examination the defendant’s expert agreed that the
fluid was most likely from the plaintiff’s car. He agreed that the rear of the
car had not been damaged in the collision. If he knew of a likely source, he
testified that he would have identified it. To suppose the fluid was from the
rear brake cylinder of the plaintiff’s car, the defendant’s expert testified, would
only be guessing. In short, the defendant’s expert had no explanation for a
likely source of the fluid based on his view of the point of impact.

[26]        
With respect to a rear fluid source one of the plaintiff’s experts
stated (in his response report):

There is no fluid source near the
rear axle of the Honda that can reasonably be associated with the fluid patch
on the road. The only source of fluid at the rear of this vehicle is brake
fluid, but there is no physical mechanism in a frontal collision to disrupt the
braking system at the rear of the vehicle. Furthermore, the braking system
consists of small tubes with small volumetric capacity providing no prospect,
of expelling a substantial volume of fluid in a brief time interval.

[27]        
Third, the plaintiff’s experts’ common opinions were confirmed by gouge
marks located in the road, which served to confirm the point of impact (based
on the theory that one or both of the fronts of the vehicles in a head-on or near
head-on collision will be forced into the ground, often creating gouges in the
road).

[28]        
The defendant’s expert did not address the gouge marks.

[29]        
The Court notes that the gouge marks could have been created some time
before the collision or sometime after the collision. The gouge marks were
observed after one of the plaintiff’s experts made his first calculation of the
point of impact. Upon revisiting the scene, he found gouge marks consistent
with his hypothesis. It is reasonably likely that the gouge marks were created
by the collision.

[30]        
Fourth, the plaintiff’s experts explained better the movement of the
plaintiff’s car just before it comes to rest as it appears to roll towards the
north side curb, bounces back slightly, and then rolls forward to the curb
coming to rest.

[31]        
The Court finds that the defendant’s expert’s opinion provides only an
unlikely explanation of the point of impact.

[32]        
In sum, although not required, the plaintiff’s experts’ common opinions confirm
the finding the Court has made based on the testimony of the plaintiff, Ms. Al-Tamimi,
and the defendant.

[33]        
The Court notes that the plaintiff thought his car was still wholly
within the eastbound lane, as did his wife before she closed her eyes, at the
point of impact. Events happened quickly. Fortunately, few people have
experience with near head-on collisions. Witnesses should not be held to an
unrealistically high standard of reliability. The plaintiff’s testimony and
that of his wife was clear that he did brake and tried to turn the vehicle to
his left. The fact that the plaintiff may have thought that his car was still
wholly within the eastbound lane at the point of impact is not sufficient to
have the Court make different findings that, shortly before the collision: the
plaintiff’s car was in the eastbound lane, travelling eastbound; the
defendant’s car had crossed into and was in the eastbound lane, travelling
westbound; and the plaintiff was taking appropriate action to avoid the
collision.

V.             
conclusion

[34]        
The Court finds that the defendant is solely liable for the collision.

[35]        
Unless there are additional matters of which the Court is not aware, the
plaintiff will be entitled to his cost based on Scale B.

_____________ “Funt
J.”_____________
Funt J.