Case Summary: Dahlke v Davidson, 2023 BCSC 1884
The British Columbia Supreme Court recently provided its decision in the case of Dahlke v Davidson, 2023 BCSC 1884.
The car accident took place on July 15, 2017. The plaintiff was attempting to leave a parallel parking spot in White Rock, British Columbia when he was struck by the defendant. ICBC argued that the accident was completely the fault of the plaintiff and that he did not deserve to get compensated for his injuries. They also argued against the claim that his working capacity was reduced. The plaintiff was 29 years old at the time of the accident and worked as a foreman in a construction company. His work was very physical and his evidence at trial was that he could not work at the same rate as before the accident.
The Court ultimately held that the plaintiff was 60% at fault and the defendant was 40% at fault. The Court awarded the plaintiff $398,176.91 before the 60% deduction and $159,270.76 after the deduction.
In his reasons, Justice Stephens provides the following:
I find the defendant’s evidence unreliable. The defendant was defensive and at times evasive in her answers on cross-examination. She commonly conflated confident views about what she actually recalled at the time of the Accident with her inference of what would have probably happened at the time in certain respects. She said several times in her testimony that she was a careful driver and had “roadstar” status, both in direct response to questions but also gratuitously. However, the defendant’s views of her own driving ability and her roadstar status do not assist me in determining what happened on the day of the Accident. Several of her answers on discovery were different from her evidence at trial. In general, the defendant purported to have a good recollection of the relevant events, when I find she did not.
In addition, the defendant endorsed a photograph of the plaintiff’s vehicle after the Accident (still shots from a video she took, marked as Exhibit 14, Tab 3) as being taken about a few minutes after the Accident when the plaintiff’s vehicle had not been moved from the position of the Accident. However, I find that the position of the plaintiff’s vehicle shown in this Exhibit 14, Tab 3 photo was, in fact, taken after the plaintiff’s vehicle had been moved and was in a different position in the southbound through lane of the Centre Street, particularly when compared with another photo (Exhibit 14, Tab 4, L4-3) which I find accurately shows the acute 45-degree angle of the plaintiff’s vehicle immediately after the accident when still in contact with the defendant’s vehicle. That the defendant testified about what I find to be an incorrect description of what was shown in the photograph at Exhibit 14, Tab 3 detracts from her credibility.
I find that both the plaintiff and defendant were trying to give correct evidence at trial, and they were both honest witnesses. However, both lacked reliability on material aspects of their evidence. As a consequence, I have considered other independent evidence with respect to what happened on the day of the Accident.
The parties do not have the same account of how this Accident occurred. There are two competing versions of events.
The defendant says the plaintiff lurched from a straight parked position on a 45-degree angle into her path on the road and hit her car, with no time for her to react. Her position is that she has no legal responsibility for the accident.
The plaintiff, by contrast, says he maneuvered his car out into the road at a 45-degree angle, was stationed there partly in the road completing his exit from the parking spot and visible to oncoming traffic. He contends that the defendant simply hit him, not paying due care for hazards on the road. He accepts some portion of liability but contends it should be 75%–25% (defendant-plaintiff).
I accept the evidence of Dr. de Ciutiis and find that, as a result of the accident, the plaintiff experienced:
- Post-traumatic myofascial neck pain;
- Right shoulder pain in keeping with imaging confirmed subacromial bursitis;
- Mechanical lower back pain;
- Driving-related anxiety – mainly resolved;
- Right periscapular pain, myofascial with trigger point appreciated in the trapezial and levator scapulae musculature;
- Initial worsening of pre-existing migrainous-type headaches; and
- Post-accident depression, since resolved.
 In summary, I award the plaintiff damages of $159,270.76 , calculated as follows:
|Future Loss of Earnings||$285,787.85|
|Cost of Future Care||$16,856|
|Special Damages (as agreed)||$2,033.06|
|SUBTOTAL (before apportionment)||$398,176.91|
|TOTAL (60-40% apportionment of liability (plaintiff-defendant))||$159,270.76|
This case is a reminder that even in circumstances that ICBC tags a party to be 100% at fault for the accident they can be fairly compensated for their injuries if the Court does not agree with ICBC’s assessment.
This case is another successful win for our team and our deserving client.