IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Jurisevic v. Rideout,

 

2013 BCSC 823

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

The Plaintiff, Mr. Jurisevic, in all three actions:

In Person

Counsel for the Defendants in all three actions:

S.W. Urquhart

Place and Date of Trial:

Vancouver, B.C.

April 2-5, 8-10 and 12, 2013

Place and Date of Judgment:

Vancouver, B.C.

May 10, 2013


 

[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.”