Date Issued: February 25, 2020

File: SC-2019-009036

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Meiklem v. Rowe, 2020 BCCRT 213

Between:

IAN MEIKLEM

Applicant

And:

STEPHEN ROWE and VERONICA CHEE

RespondentS

INTRODUCTION

1.      This is a dispute over damage to a truck. The applicant, Ian Meiklem, says a trailer towed by the respondent, Stephen Rowe, scuffed his truck’s right sideview mirror and right front body panel by the wheel well. The Insurance Corporation of British Columbia (ICBC) denied compensation to the applicant. The applicant seeks $2,000 in truck repairs from the respondents. ICBC is not a party to this dispute.

2.      Mr. Rowe admits his sport-utility vehicle (SUV) and trailer merged into the applicant’s lane, but denies his trailer contacted the applicant’s truck. Both Mr. Rowe and the respondent Veronica Chee say Ms. Chee was a passenger in the SUV driven by Mr. Rowe at the time of the incident. The applicant does not deny Ms. Chee was a passenger. It is not clear whether Ms. Chee is an owner of the trailer or the SUV.

3.      The applicant, a retired judge, is self-represented. Mr. Rowe represents himself and Ms. Chee.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal 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.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “he said, he said” scenario. In this situation, the credibility of witnesses cannot be determined solely by whose personal demeanour appears to be most truthful. Assessing the most likely version of events depends on the harmony of witness testimony with the rest of the evidence. Considering that the tribunal’s mandate includes proportionality and speedy resolution of disputes, I find that an oral hearing is not necessary, and that I can properly assess and weigh the documentary evidence and submissions before me. This is consistent with the British Columbia Supreme Court’s recognition of the tribunal’s process, and its finding that oral hearings are not necessarily required where credibility is an issue, in the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38.

6.      The tribunal 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 tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

ISSUE

8.      The issue in this dispute is whether Mr. Rowe’s trailer contacted the applicant’s truck and damaged it, and if so, what amount do the respondents owe for repairs?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant bears the burden of proving its claim, on a balance of probabilities. I have read all the parties’ evidence and submissions, but I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.   Ms. Chee was a passenger in the vehicle driven by Mr. Rowe, but the evidence does not confirm why she was named as a party in this dispute. No vehicle or trailer ownership documents were submitted as evidence. It may be that Ms. Chee was an owner of the trailer or the SUV, or both, and that she was therefore involved in the applicant’s reportedly unsuccessful ICBC insurance claim for truck damage. In any event, there is no evidence Ms. Chee had any influence on Mr. Rowe’s driving at the time the disputed incident occurred. Therefore, I dismiss the applicant’s claims against her. When I refer to the “respondent” below, I mean Mr. Rowe.

11.   This dispute involves alleged contact between the applicant’s truck and a tent trailer towed by the respondent’s vehicle. The applicant was driving in the rightmost lane of a highway, and the respondent was in the adjacent merge lane. The respondent says it was a clear day and traffic was backed up and moving slowly. The parties agree vehicles in the merge lane were performing an alternating “zipper” merge onto the highway.

12.   The applicant says the respondent was overtaking his truck on the right, and the trailer was still beside the applicant’s truck, when the respondent merged into the applicant’s lane. The applicant says he saw the respondent’s vehicle about the same time he heard and felt his right folding sideview mirror fold against his truck. The applicant said he immediately braked and honked his horn several times, but the respondent did not stop and apparently did not realize the applicant was honking, or that the trailer had contacted the truck. The applicant continued driving behind the respondent for a kilometre or two, then chose to exit the highway and check for damage rather than follow the respondent any further.

13.   The applicant says he discovered minor scuff damage to the truck’s front right body panel near the wheel well, as well as damage to the plastic housing of its right sideview mirror. The truck is a white Ford pickup truck the applicant says he purchased new in mid-2018.

14.   The applicant says the incident was witnessed by another driver, T.G. The applicant submitted a signed statement from T.G., dated about 6 months after the incident. T.G. said he was driving a gravel truck in the merge lane immediately behind an SUV towing a tent or camper trailer on the date of the incident. In other words, T.G. was behind Mr. Rowe. T.G. said a white Ford pickup was travelling on the highway (the applicant), and the SUV and trailer merged “right into” the pickup. T.G. said the white truck honked its horn, but the camper trailer contacted the truck’s mirror and scraped its fender. T.G. confirmed that the trailer-pulling vehicle did not pull over, although he thought the driver of that vehicle would have felt the impact. T.G. said he followed the truck off the highway, gave his name and contact information to the truck driver, and was later contacted by ICBC about the incident. T.G. confirmed he did not know the driver of either the truck or the SUV.

15.   I am satisfied that T.G. witnessed the incident, and I find his evidence is reliable. The respondent suggests T.G. and the applicant knew each other, but I reject this argument because the evidence before me does not support it.

16.   The respondent says he had his turn signal on before merging, and the applicant backed off from the vehicle in front of him. The respondent understood that the applicant was allowing a space for the respondent to merge. The respondent says he then merged into the highway lane. The respondent says that after he established himself in the new lane, the applicant honked his horn, drove his truck beside the left rear corner of the trailer, and gestured for the respondent to get out of the lane. The respondent says he did not respond and kept driving in a straight line. The respondent says he kept an eye on “the whole thing” in his sideview mirror, and there was no contact between the vehicles when the applicant moved his truck towards the left rear side of the trailer. Ms. Chee also says she did not hear or feel any contact between the vehicles, only the applicant’s honking.

17.   I find the respondent’s account of the incident is consistent with the applicant’s version. The respondent says he observed no contact between the vehicles when the applicant moved his truck towards the left rear of the trailer and honked his horn. This was after the respondent says he completed his merge and established himself in the highway lane – which is also after the applicant says contact was made during the merge. Although neither the respondent nor Ms. Chee heard or felt any contact between the vehicles, contact was observed by the applicant and T.G., both of whom had direct and close-up line of sight to the trailer, unlike the respondents. On the evidence before me, I find the respondent’s trailer contacted the applicant’s truck while the respondent was merging onto the highway, and neither respondent noticed the contact. I set out below additional reasons supporting this conclusion, in addressing the parties’ disagreement about whether the trailer could have contacted the truck in the areas where it was damaged, and whether the damage resulted from the contact.

18.   Section 151(a) of the Motor Vehicle Act says that a driver must not drive from one lane to another over a broken line unless the driver determines that the movement can be made safely and will in no way affect another vehicle’s travel. Above, I found the respondent’s trailer contacted the applicant’s truck during a lane change into the applicant’s lane. The evidence does not indicate that there was any unanticipated change in movement by other vehicles that suddenly made the respondent’s merge unsafe while he was in the process of changing lanes. In particular, the respondent alleges the applicant accelerated toward the respondent after he completed the merge, but not before. On balance, I find the respondent failed in his section 151(a) responsibility to ensure the merge could be made safely and would not affect the truck’s travel, which resulted in the contact between the vehicles. I find the respondent’s breach of this section establishes that he was at fault for the collision.

19.   I also find the applicant did not have enough time after noticing the respondent was changing lanes to avoid contact with the trailer. Therefore, the evidence does not support a finding of contributory negligence against the applicant. I find the respondent is 100% liable for the damage resulting from the contact.

20.   This leaves the question of whether the damage to the applicant’s truck resulted from contact with the trailer, or whether it was pre-existing damage.

21.   A repair shop took photos of the trailer, including with a measuring tape showing its height at various points. The submitted repair shop photos are of poor quality, so it is impossible to see whether there was any cosmetic damage to the trailer, and it is difficult to read the measuring tape. The applicant submitted photos showing a close-up of a scuff mark on his truck’s body panel, and pits in the plastic of its side-view mirror.

22.   Evidence of ICBC’s insurance adjusters was also submitted. The adjusters apparently relied on better-quality versions of the photos taken by the repair shop, and I infer they had more photos than were submitted as evidence in this dispute. I give weight to the adjuster’s measurements of the damaged areas of the truck, as that is a subject within their usual expertise.

23.   The parties disagree on the interpretation of the photos in evidence, as well as the exact height and location of features on the trailer that allegedly scuffed the applicant’s truck. I considered the parties’ arguments on these points, but I find it unnecessary to fully reiterate them here. In addition, the applicant says I should draw an adverse inference against the respondent because the respondent disagreed with ICBC’s trailer measurements but did not make his own measurements, despite being able to do so. However, there is no need to draw such an inference, as I was able to make my own findings on the evidence provided.

24.   The respondent says the truck’s sideview mirror was too high to contact the trailer, and that there was no damage on the trailer that corresponded to the truck’s right front body panel scuff. The respondent also says that even if the truck’s very long sideview mirror was low enough to touch the trailer, there would have been scuff marks on the back or outside of the mirror or damage to the right front corner of the truck, if the trailer had contacted it as described by the applicant.

25.   I will first consider the scuff marks by the truck’s right front wheel well. The trailer photos show latches protruding slightly from the trailer’s left side which are approximately 40 inches from the ground. The respondent disputes the exact height of the latches, and notes there is no obvious damage to the trailer or the latches. The applicant says the scuff marks on the truck body are at the same height as the latches, and the ICBC adjuster reports also confirm the scuff marks are approximately 40 inches from the ground. I find both the scuff marks and trailer latches are at a height of approximately 40 inches. From the truck photos, the scuff marks appear to be from a rear-to-front scrape. I find this is consistent with a scraping object overtaking the truck. The scuff marks appear to have affected only the truck’s paint, as there is no sign of deformity to the body panel, and a body shop repair estimate shows that only repainting is required.

26.   Further, I find below that the truck’s right sideview mirror folded during contact with the trailer. I find this folding allowed the trailer to approach the front body panel largely in parallel, so that the protruding trailer latch alone was able to contact the front body panel.

27.   There is no evidence from an auto body professional, or another person with expertise in repairing vehicle collision damage, saying that the trailer latches would have been damaged if they had caused the truck’s right front body panel scuff. Therefore, despite the lack of trailer latch damage, I find the trailer latches and the truck body scuff marks are consistent in height and size, and the apparent direction of the scuffs is consistent with the trailer overtaking the truck. As a result, I find the right front body panel scuff was caused by contact with the trailer. The respondent is liable for that scuff mark damage.

28.   Turning to the truck’s right sideview mirror damage, the respondent says the mirror was higher than his trailer and could not have contacted it. However, the parties disagree about the mirror’s height.

29.   The applicant says the lower edge of his mirror is approximately 55 inches from the ground, and the mirror was damaged at a height of about 56-57 inches, as measured by ICBC. The respondent agrees with ICBC’s opinion that the top of his trailer was approximately 52 inches high. The applicant acknowledges that the rear top of the trailer appears to be 52 inches high, but says photos show the trailer is tilted upward slightly when hitched to the respondent’s vehicle, so the front of the trailer is higher than that. From the photos, I find the trailer is tilted slightly upward at its front when hitched. The trailer also has a roof rack which extends several inches above the top of the trailer and near to its left edge.

30.   The respondent says the applicant did not mention until long after the incident that his sideview mirror folded from trailer contact. However, there is no direct evidence suggesting the mirror remained extended after the incident, so I give this argument little weight. On the above evidence, together with the applicant’s direct observation that the mirror folded upon contact with the trailer, I find that the trailer contacted the truck’s sideview mirror.

31.   But did the contact damage the mirror? An applicant photo of the mirror shows a pit on the lower part of the front-side corner of the black plastic housing. The photo is poorly focused in all other areas, but shows what appear to be other unconnected pits or dirt marks on the front of the housing, together with what might be dirt or scrape marks on the underside. The applicant did not specifically identify the alleged mirror damage, but I infer from the photo and his comment that the damage was 56-57 inches from the ground, that the large pit on the front-side corner is the claimed damage from the trailer contact.

32.   The applicant says the trailer was overtaking his truck when it contacted his mirror. As noted above, the pit in the mirror housing is on the front/side corner of the mirror. It is unclear how an overtaking trailer could contact the front/side corner of the mirror without first contacting the side and back of the mirror, particularly given my finding above that the trailer and truck were traveling mostly parallel to each other. There is no evidence of damage to the side or the back of the mirror housing. Further, the pit on the mirror has the appearance of a front-to-back blow, rather than a back-to-front blow from an overtaking object.

33.   There is no evidence from an auto body professional or vehicle collision repair specialist saying that the trailer caused the pit in the mirror housing, or describing a mechanism by which the trailer could have caused the pit. Further, I find it likely that the mirror’s folding function meant the trailer applied limited sideways pressure to it before it folded, reducing the chance of damage.

34.   On balance, I find the applicant has not proven the trailer’s contact with the truck’s right sideview mirror caused any damage to it. So, the respondent is not liable for repair or replacement of the mirror.

35.   The applicant provided a body shop estimate for both repairing the right front body panel scuff and replacing the sideview mirror. It appears most of the estimate relates to repainting the scuff mark, apart from the $876.45 cost of the mirror and 0.5 hours of mirror installation at $73.41 per hour, plus sales tax. Subtracting these mirror amounts results in a sum of $1,022.74 for the repainting.

36.   Given my conclusions above, I find the respondent owes the applicant $1,022.74 for damage to the truck’s right front body panel, and nothing for right sideview mirror damage.

37.   The Court Order Interest Act (COIA) applies to the tribunal. However, I find the applicant is not entitled to pre-judgment interest on the $1,022.74 award, as the evidence does not show he has repaired the truck damage and paid the cost of labour and materials.

38.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. The applicant was partly successful and was awarded approximately half of the $2,000 he sought. Therefore, I find he is entitled to half the $125.00 he paid in tribunal fees, which is $62.50. No dispute-related expenses were claimed.

ORDERS

39.   Within 30 days of the date of this order, I order the respondent Stephen Rowe to pay the applicant a total of $1,085.24, broken down as follows:

a.    $1,022.74 in damages, and

b.    $62.50 for tribunal fees.

40.   The applicant’s claims against the respondent Veronica Chee are dismissed.

41.   The applicant is entitled to post-judgment interest, as applicable.

42.   Under section 48 of the CRTA, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

43.   Under section 58.1 of the CRTA, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.