Date Issued: July 14, 2020

File: VI-2020-000769

Type: Motor Vehicle Injury

Civil Resolution Tribunal

Indexed as: Thandi v. Uggal, 2020 BCCRT 787

Between:

JATINDER THANDI

Applicant

And:

Jasmeet Singh Uggal

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about a motor vehicle accident that took place on October 8, 2019 in Vancouver, British Columbia.

2.      The applicant, Jatinder Thandi, turned right out of an alley or driveway onto Hamilton Street, and the respondent, Jasmeet Singh Uggal, was driving southbound along Hamilton Street when their vehicles collided. Mr. Thandi says that he was injured as a result of the accident.

3.      The Insurance Corporation of British Columbia (ICBC) insures both Mr. Thandi and Mr. Uggal. ICBC internally determined Mr. Thandi was 100% responsible for the accident for failing to yield to traffic when exiting an alley, contrary to section 176(2) of the Motor Vehicle Act (MVA). ICBC is not a party to this dispute.

4.      Mr. Thandi says Mr. Uggal should be held 100% responsible for the accident because he says Mr. Uggal passed him in oncoming traffic and side swiped the front of his vehicle when he moved back into Mr. Thandi’s lane. Mr. Thandi seeks $5,500 for pain and suffering damages and $2,475 for past income loss.

5.      Mr. Uggal say ICBC properly assessed fault against Mr. Thandi. Mr. Uggal denies passing Mr. Thandi in oncoming traffic, and instead says he was unable to avoid a collision when Mr. Thandi exited the alley and collided with the back of Mr. Uggal’s vehicle.

6.       Mr. Thandi is self-represented. Mr. Uggal is represented by an ICBC employee.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over motor vehicle injury disputes, or “accident claims”, brought under section 133 of the Civil Resolution Tribunal Act (CRTA). Section 133(1)(c) of the CRTA and section 7 of the Accident Claims Regulation (ACR) give the CRT jurisdiction over the determination of liability and damages claims, up to $50,000.

8.      Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

9.      Section 39 of the CRTA says that the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

10.   Section 42 of the CRTA says that the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

ISSUES

11.   The issues in this dispute are:

a.    Who is liable for this accident?

b.    What damages, if any, is Mr. Thandi entitled to?

BACKGROUND, EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the applicant Mr. Thandi bears the burden of proof on a balance of probabilities. I have only addressed the parties’ evidence and arguments to the extent necessary to explain my decision.

Who is liable for the accident?

13.   It is undisputed that on October 8, 2019, Mr. Thandi was picking up a vehicle he had purchased from DB earlier in the day. Mr. Thandi says that he was moving the vehicle from an alley onto Hamilton Street while DB retrieved some screws so Mr. Thandi could put the license plates on the vehicle.

14.   I note that the parties variously describe the area where Mr. Thandi was exiting prior to the accident as an alley, a driveway, and a parking area. However, I find that nothing turns on these descriptions. For consistency, I will refer to it as a driveway throughout these reasons.

15.   The parties agree that there is one lane of travel in each direction for north and southbound traffic on Hamilton Street. There is also a parking lane on both sides of Hamilton Street, including on either side of the driveway from which Mr. Thandi was exiting.

16.   As Mr. Thandi was approaching Hamilton Street from the driveway, he says he came to a stop, looked to his left, his right, and back to his left before continuing further out from the driveway when he did not see any traffic approaching. It is undisputed that there were cars parked in the southbound parking lane on both sides of the driveway at the time. Mr. Thandi says while he was starting his right turn, he heard Mr. Uggal honk to his left and he came to a stop. Mr. Thandi says Mr. Uggal also came to a full stop and continued honking and was flashing his high beam lights at Mr. Thandi.

17.   Mr. Thandi says they both remained stopped for some time. Mr. Thandi says Mr. Uggal did not stop honking and did not move, so he took that as a sign to proceed and he completed his right-hand turn onto Hamilton Street.

18.   Mr. Thandi says that as he completed his turn and was fully established in the southbound lane of travel on Hamilton Street, Mr. Uggal moved into the oncoming northbound lane to pass him. Mr. Thandi says when Mr. Uggal moved back into the southbound lane in front of him, Mr. Uggal’s vehicle side swiped the front of Mr. Thandi’s vehicle. Mr. Thandi says they then both stopped, got out of their cars, and argued. Mr. Thandi says that Mr. Uggal accused him of speeding up while Mr. Uggal was trying to pass him. Mr. Thandi says that during their disagreement, Mr. Uggal got back into his vehicle and drove away without taking Mr. Thandi’s name or vehicle information.

19.   Mr. Uggal says he was travelling along Hamilton Street at about 30 kilometres per hour when Mr. Thandi exited the driveway, which was to his right. Mr. Uggal says he swerved to the left to try to avoid the collision, but it was too late. Mr. Uggal denies that he moved his vehicle into oncoming northbound traffic at any time leading up to the accident. He also says that Mr. Thandi refused to give him his information and he left the scene because he did not feel safe.

20.   I find Mr. Thandi’s version of how the accident happened to be more persuasive for the following reasons.

21.   First, I find there are inconsistencies in Mr. Uggal’s evidence. In Mr. Uggal’s first telephone statement to ICBC on October 20, 2019, he said he did not notice Mr. Thandi at all until he got hit. However, he also says he did not feel the impact and did not cross the yellow line, but he “had a hunch” about being hit, so stopped after travelling a further 100 yards down the road.

22.   In a telephone statement made to another ICBC employee on October 28, 2019, Mr. Uggal said Mr. Thandi “brushed” his rear right side bumper as he came out of the driveway to Mr. Uggal’s right. He said it was a low impact because he “wasn’t doing 30 km at the time” and Mr. Thandi was coming out of the driveway. He did not mention that he did not see Mr. Thandi before the impact or that he did not feel the impact, nor did Mr. Uggal say he tried to swerve out of the way.

23.   On December 20, 2019, Mr. Uggal provided a telephone statement to an independent adjuster hired by ICBC in which he said for the first time that he saw Mr. Thandi’s car coming out of the driveway and that he swerved to the left as much as he could but Mr. Thandi “just rushed out and hit [him]”.

24.   In contrast, Mr. Thandi was consistent in his recounting of the accident. His first telephone statement to ICBC was made 2 hours after the accident. He also made a telephone statement on November 6, 2019 and a written statement was prepared when the independent adjuster attended Mr. Thandi’s residence on November 23, 2019. In each of these statements, Mr. Thandi said as he was exiting the driveway, Mr. Uggal came to a stop and started honking at Mr. Thandi, that Mr. Thandi completed his right turn, and that Mr. Uggal proceeded to pass him in the oncoming traffic lane and side swiped him as he returned to the southbound lane of travel.

25.   Had Mr. Uggal been travelling less than 30 kilometres per hour and Mr. Thandi was slowly exiting the driveway, as Mr. Uggal claimed, I find it is more likely than not that Mr. Uggal would have been able to stop, and that Mr. Thandi would have seen Mr. Uggal and not proceeded to turn and hit the rear of Mr. Uggal’s vehicle.

26.   Further, I find the location of the damage to both vehicles is more consistent with Mr. Thandi’s version of a sideswipe impact. I would expect there to be more damage to the front and left bumper corner of Mr. Thandi’s vehicle if he had hit Mr. Uggal’s vehicle while he made a right turn, as Mr. Uggal claimed. Instead, from the photographs in evidence, I find the damage to Mr. Thandi’s vehicle is restricted to the side of his vehicle in front of the wheel well.

27.   Finally, DB says he witnessed the accident from about 50 feet away, while waiting on Hamilton Street for Mr. Thandi to drive the car around. The submitted evidence includes a telephone interview transcript of DB’s statement to the independent adjuster as well as an email from DB to Mr. Thandi. In both the interview and the email, DB’s recollection is consistent with Mr. Thandi’s version of the accident. In the interview, DB says that Mr. Thandi was creeping out of the driveway and when the nose of his vehicle was in the road, Mr. Uggal came to a full stop and waited, so Mr. Thandi completed his turn. DB says that as Mr. Thandi was doing his turn, Mr. Uggal “hit the gas” and tried to sneak around Mr. Thandi. He says Mr. Uggal moved into the oncoming lane and swerved very quickly back, so abruptly that he ran into the left front corner of Mr. Thandi’s vehicle.

28.   I disagree with Mr. Uggal’s summary of DB’s evidence in his Dispute Response when he says that Mr. Uggal swerved to his left to avoid a collision and then swerved back to the right and collided with Mr. Thandi’s vehicle. Rather, the transcript of DB’s statement shows DB observed that Mr. Uggal came to a stop and appeared to be waiting for Mr. Thandi to make his turn onto Hamilton Street. Further, Mr. Uggal submits that DB says after both parties initially came to a stop, Mr. Thandi and Mr. Uggal started moving again simultaneously. However, I find DB’s evidence is that Mr. Thandi had already started moving to complete his turn before Mr. Uggal started moving again to pass Mr. Thandi on his left.

29.   Mr. Thandi had only limited interaction with DB on the day of the accident to purchase a vehicle from him. There is no evidence that Mr. Thandi knew DB before that day or that DB is an interested witness. I find that his evidence is reliable.

30.   Mr. Uggal refers to the case of St. Denis v. Turner, 2020 BCSC 603, which says that drivers cannot rely on other drivers who wave them to go without themselves ensuring it is safe to do so. I find this case is not relevant to this dispute. The St. Denis case is about left hand turns where the turning driver’s vision of oncoming traffic is obstructed. This is not the issue in this dispute. In any event, I find it is not Mr. Thandi’s evidence that Mr. Uggal waved him to proceed with his turn. Further, I find that if Mr. Uggal had waved for Mr. Thandi to proceed, then Mr. Thandi could have relied on that wave because Mr. Uggal was the only potential hazard in proceeding with his turn.

31.   Mr. Uggal argues that he had the right of way and was the dominant vehicle. He relies on section 176(2) of the MVA, which says a driver about to enter a highway from an alley or driveway must yield the right of way to traffic approaching so closely that it constitutes an immediate hazard. He says that Mr. Thandi has the onus to prove that Mr. Uggal gave up the right of way.

32.   I find that Mr. Uggal came to a stop when he saw the nose of Mr. Thandi’s vehicle come into his lane of travel as Mr. Thandi was exiting the driveway. I find that Mr. Thandi also stopped and yielded to Mr. Uggal as approaching traffic, in accordance with MVA section 176(2). I also find that Mr. Thandi started moving to complete his right turn before Mr. Uggal started moving again. Mr. Uggal did not present an immediate hazard when Mr. Thandi started moving because Mr. Uggal was stopped. When Mr. Thandi started moving again, he became the dominant driver and Mr. Uggal then had to yield to Mr. Thandi. I find Mr. Uggal started moving prematurely and inexplicably tried to pass Mr. Thandi, causing the collision when the rear of his vehicle sideswiped the front of Mr. Thandi’s vehicle.

33.   On balance, I find Mr. Uggal solely responsible for the accident.

34.   I turn then to Mr. Thandi’s claimed damages.

Damages

35.   Mr. Thandi submits that he suffered injuries to his neck, shoulder and upper back as a result of the accident.

36.   Mr. Thandi claims $5,500 for pain and suffering. This figure is the applicable cap for a “minor injury” as defined in the Insurance (Vehicle) Act (IVA). The parties did not expressly agree whether Mr. Thandi’s injuries are “minor injuries” as defined in section 101 of the IVA. However, given Mr. Thandi’s claim does not exceed the applicable “minor injury cap”, I find that I do not need to determine whether the injuries are in fact “minor injuries”.

37.   Mr. Thandi says that due to the Covid-19 pandemic he was unable to obtain his doctor’s records to support his claim. However, I note that Mr. Thandi did not request an extension of these CRT proceedings so that he could obtain this evidence. It is undisputed that Mr. Thandi attended 3 physiotherapy treatments and 2 visits to his doctor, with his last treatment in November 2019. Mr. Uggal submits that there is insufficient documentation to properly evaluate Mr. Thandi’s claim for pain and suffering. However, Mr. Uggal does not dispute that Mr. Thandi sustained injuries from the accident.

38.   In Holt v. Hertzberg, 2006 BCPC 228 at paragraph 27, the court noted after reviewing the authorities, that non-pecuniary damages for relatively minor soft tissue injuries that resolve within a matter of months are often assessed in the range of $1,500 to $7,500, depending on the facts of the case. Given the limited evidence about Mr. Thandi’s injuries, on a judgment basis, I find that $1,500 is appropriate compensation for non-pecuniary (pain and suffering) damages.

39.   Mr. Thandi also claims $2,475 for past wage loss. However, he did not provide any evidence about how much time he took off work, his wage or salary, or any other details or documentation that would support his claim for lost wages. Therefore, I dismiss Mr. Thandi’s claim for past wage loss.

FEES, EXPENSES AND INTEREST

40.   Under section 49 of the CRTA and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find Mr. Thandi was the successful party and is entitled to reimbursement of $175 in paid CRT fees. Mr. Thandi did not claim any dispute-related expenses.

41.   Further to section 2 of the Court Order Interest Act, pre-judgment interest must not be awarded on non-pecuniary damages resulting from personal injury, or on costs. Therefore, Mr. Thandi is not entitled to pre-judgement interest on the $1,500 pain and suffering award, or on the reimbursement of his paid CRT fees. Post-judgment interest is payable as of the date of this decision.

ORDERS

42.   Within 30 days of the date of this decision, I order the respondent, Jasmeet Singh Uggal, to pay the applicant, Jatinder Thandi, a total of $1,675, broken down as follows:

a.    $1,500 in non-pecuniary damages, and

b.    $175 for CRT fees.

43.   Mr. Thandi is entitled to post-judgment interest, as applicable.

44.   Under section 57 and 58 of the CRTA, a validated copy of the CRT’s order can be enforced through the Supreme Court of British Columbia or the Provincial Court of British Columbia if it is under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.