Date Issued: March 30, 2021

File: SC-2020-007873

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Singh v. ICBC, 2021 BCCRT 343

Between:

HARI PARTAP SINGH

Applicant

And:

INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondent

INTRODUCTION

1.      On August 1, 2020, the applicant, Hari Partap Singh, collided with a cyclist in a crosswalk while Mr. Singh was turning right. The respondent, Insurance Corporation of British Columbia (ICBC), insures Mr. Singh. ICBC internally concluded that Mr. Singh was 75% at fault. The cyclist is not a party to this dispute.

2.      Mr. Singh says that the accident was entirely the cyclist’s fault. He claims $225, which he says was his deductible, presumably for repairs to his vehicle. He also says that his insurance premiums went up, although he did not claim a specific amount for this.

3.      For the reasons that follow, I agree with ICBC’s conclusion about liability.

4.      Mr. Singh is self-represented. ICBC is represented by an employee.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). 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 the dispute’s parties that will likely continue after the CRT process has ended.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute involves assessing the credibility, or truthfulness, of Mr. Singh. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

7.      Section 42 of the CRTA says 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.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to pay money or to do or stop doing something. The tribunal’s order may include any terms or conditions the CRT considers appropriate.

9.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. ICBC says that the CRT does not have jurisdiction to decide this dispute because Mr. Singh wants an order that the cyclist was fully responsible for the accident. ICBC does not explain this submission further but I infer that ICBC is referring to the CRT’s inability to make declaratory orders about who is at fault for an accident. I find that Mr. Singh does not ask for a declaratory order, he asks to be reimbursed for his deductible. I find that I have jurisdiction to analyze who was at fault for the accident as part of my assessment of whether Mr. Singh has proven his claim for damages. I therefore find that I have jurisdiction to decide this dispute.

10.   The parties’ submissions raise 2 other preliminary issues.

11.   First, Mr. Singh did not initially ask to be compensated for increased insurance premiums. He first raised this issue in his submissions, alleging that the increased premium would cost him around $10,000 over 10 years. ICBC says that I should not consider Mr. Singh’s claim for increased insurance premiums because it is not in the Dispute Notice.

12.   Second, the cyclist is not a party to this dispute. Typically, when a person disagrees with ICBC’s liability assessment, the proper party to make a legal claim against is the other party to the accident, in this case the cyclist. There is very little evidence before me to suggest why the cyclist is not a party. In particular, it is unclear from the materials whether either party knows the cyclist’s identity. Mr. Singh says that ICBC paid the cyclist but there is no evidence of this and ICBC does not mention it in its submissions. ICBC does not argue that it was not an appropriate respondent.

13.   Given my conclusion that ICBC correctly determined that Mr. Singh was 75% responsible for the accident, I have dismissed Mr. Singh’s claims. So, I find that I do not need to address these 2 issues.

ISSUES

14.   The issues in this dispute are:

a.    Who is liable for the accident?

b.    What remedy, if any, is appropriate?

EVIDENCE AND ANALYSIS

15.   In a civil claim such as this, Mr. Singh as the applicant must prove his case on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

16.   The accident occurred in the early evening of August 1, 2020. The weather was clear. Mr. Singh was travelling westbound on 57^th Avenue in Vancouver, turning right onto Main Street. At 57^th Avenue, Main Street has 2 lanes in each direction, plus street parking. The cyclist was riding eastbound through the intersection in the pedestrian crosswalk. The light was green.

17.   A witness who was driving southbound on Main Street provided ICBC with dashcam footage of the collision. This dashcam video is in evidence. It provides an unobstructed view of the events leading up to the collision, and the collision itself.

18.   Based on this footage, when Mr. Singh began his right turn, the cyclist was just about to enter the last lane before reaching the west side of Main Street. When Mr. Singh was about halfway into his turn, he struck the right side of the cyclist with the middle of his bumper and hood. It does not appear that either Mr. Singh or the cyclist slowed down or made any other move to avoid the collision.

19.   According to ICBC’s internal notes, Mr. Singh offered to call 911 but the cyclist declined. The witness did not stop but contacted ICBC the next day to provide the dashcam footage.

20.   As mentioned above, ICBC internally determined that Mr. Singh was 75% at fault for the accident. I am not bound by ICBC’s liability determination.

Who is liable for the accident?

21.   Mr. Singh’s primary argument is that the cyclist should not have been riding in a crosswalk. Section 183(2)(b) of the Motor Vehicle Act (MVA) says that a cyclist must not ride on a crosswalk unless there is a sign that says that they can. There is no such sign at the crosswalk that the cyclist was riding on. Mr. Singh says that because the cyclist breached the MVA and Mr. Singh was legally turning right on a green light, the cyclist is fully at fault. Mr. Singh also says that the cyclist was on the “wrong side” of the road.

22.   I agree with Mr. Singh that the cyclist breached section 183(2)(b) of the MVA by cycling in the crosswalk. However, breaching the MVA does not necessarily mean that the cyclist was negligent. To prove negligence, Mr. Singh must prove that the cyclist’s actions fell below the standard of a reasonably prudent cyclist in the circumstances.

23.   There is no evidence from the cyclist. Based on the dashcam footage, I find that the cyclist did not slow down or try to avoid Mr. Singh’s car before the accident. I infer that the cyclist either did not see Mr. Singh’s car, did not realize that Mr. Singh was turning right, or assumed that Mr. Singh would stop. In each circumstance, I find that the cyclist failed to take reasonable care for their own safety. I find that the cyclist’s decision to unlawfully ride through the intersection and failure to take any action to avoid the collision was negligent. ICBC acknowledges this.

24.   However, this does not mean that the cyclist was solely responsible for the accident. Mr. Singh had a duty to exercise reasonable care while turning right across a crosswalk. Even though drivers are generally allowed to assume that others will obey the rules of the road, they still must take reasonable steps to avoid an accident or react to a hazard. See Salaam v. Abramovic, 2010 BCCA 212, at paragraph 25.

25.   ICBC argues that Mr. Singh was negligent because the cyclist was fully established in the crosswalk. ICBC says that the cyclist was there for Mr. Singh to see. ICBC relies on section 144 of the MVA, which says that a person must drive with due care and attention and with reasonable consideration for other people.

26.   Mr. Singh says that he bears no responsibility for the accident. Mr. Singh says that he could not see the cyclist in the crosswalk because it was “dusk”. Based on his submissions and the shadows in the dashcam footage, I take this to mean that the sun was in Mr. Singh’s eyes, affecting his ability to see. Mr. Singh says that because the sun was at the cyclist’s back, the cyclist was better able to see Mr. Singh. I disagree with Mr. Singh’s argument. Even though the sun may have made it difficult for Mr. Singh to see what was in the crosswalk, I find that he still had to make sure that the crosswalk was clear before making the right turn.

27.   Mr. Singh also says that the cyclist was “speeding”. Based on the dashcam footage, I find that the cyclist was not travelling at an excessive speed. For the most part, the cyclist coasted through the intersection. Based on the dashcam footage, I find that the cyclist was on the crosswalk for at least 5 seconds before the accident.

28.   Mr. Singh says that he stopped as soon as he saw the cyclist. The dashcam footage shows that Mr. Singh did not stop until after he hit the cyclist. Based on that, I find that Mr. Singh did not see the cyclist until the last moment.

29.   For these reasons, I find that Mr. Singh failed to take reasonable care by turning right when he should have seen that the cyclist was in the crosswalk. I find that Mr. Singh was negligent.

30.   I turn then to assessing how much Mr. Singh and the cyclist were each at fault.

31.   I find that the facts of this dispute are similar to Deol v. Veach, 2011 BCSC 1437. In that case, the plaintiff cyclist was riding on a sidewalk and stopped at an unmarked intersection. The plaintiff saw that the defendant driver wanted to turn right into a parking lot in front of the plaintiff. The plaintiff assumed that the defendant would see him and began riding through the intersection towards the defendant. The defendant did not see the plaintiff and struck him while turning right.

32.   The court found that the plaintiff breached section 183 of the MVA because he rode on a sidewalk and rode in a crosswalk. The court found that the plaintiff failed to take reasonable care of his own safety. However, the court found that the driver was more at fault because he turned right without making sure it was safe to do so. The defendant’s view of the intersection was unobstructed, so the court found that the plaintiff was there to be seen if the defendant had kept a proper lookout. The court concluded that the plaintiff was 25% responsible and the defendant was 75% responsible for the accident.

33.   I find that the same result is appropriate in this dispute. I find that the fact that the cyclist was on the “wrong side” of the road, as Mr. Singh says, means that Mr. Singh was facing the cyclist as the cyclist crossed Main Street. I find that Mr. Singh bears more responsibility for the accident because the cyclist had already crossed most of the intersection by the time Mr. Singh started his turn. While the cyclist should not have been riding in the crosswalk, I find that Mr. Singh’s decision to begin his right turn without making sure that the crosswalk was clear was more blameworthy than the cyclist’s decision to ride on the crosswalk.

34.   I therefore find that Mr. Singh was 75% at fault for the accident and the cyclist was 25% at fault.

35.   There is therefore no reason for me to consider Mr. Singh’s claimed damages. I dismiss Mr. Singh’s claim for a refund of his deductible.

36.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Mr. Singh was unsuccessful, so I dismiss his claim for CRT fees and dispute-related expenses. ICBC did not claim any dispute-related expenses or pay any CRT fees.

ORDER

37.   I dismiss Mr. Singh’s claims, and this dispute.