When fault is disputed following a car accident, it is always helpful if there are third-party witnesses around who can testify as to what happened. In the absence of such witnesses, accident cases often become a contest between the credibility of the two drivers. That often works against the plaintiff, since they have the legal burden of proving the defendant’s negligence.
Nguyen v. Busink: Each Driver Claims the Other Hit Her Without Warning
Consider this recent court judgment arising from a 2014 car accident in Surrey. The accident occurred near the intersection of 140 Street and 100 Avenue. The plaintiff and defendant were each travelling eastbound on 100 Avenue, a two-lane road with a dedicated left-turn lane near the aforementioned intersection. Just before the turn lane begins, the centre of the road is marked with yellow cross-hatch lines, indicating a median.
Both drivers planned to turn left. According to the plaintiff’s account of what happened, she moved into the turn lane and was headed to the intersection when “she was struck by another vehicle without warning,” i.e., the defendant. The plaintiff said the collision was a “complete surprise” and that the defendant never sounded her brakes or gave any advance warning.
The defendant, as you might expect, gave a somewhat different account. She testified that she moved into the turn lane–without seeing another car in front of her–when she suddenly “heard a bang and realized she had collided with another vehicle.” The defendant maintained that the plaintiff must have been speeding and “overtook her” as the defendant entered the turn lane. However, the defendant also acknowledged that she never bothered to check her mirrors or the shoulder before entering the turn lane.
On the other hand, the plaintiff admitted during her own cross-examination that she may have entered the turn lane “a little early.” Defence counsel suggested the plaintiff was actually driving on the yellow cross-hatch lines, which is a traffic violation. In response, the plaintiff argued the markings on the road “were not clear.”
There were no witnesses to the accident aside from the plaintiff and defendant, making this a “she said/she said” situation. The only other individuals who testified during the two-day trial of the plaintiff’s personal injury lawsuit was the RCMP constable who responded to the accident scene and an engineer retained by the defendant as an accident reconstruction expert.
The constable offered little of use to the court except for confirming the presence of the cross-hatch markings indicating the road median. The expert witness did not personally review the accident scene or either of the vehicles involved in the crash, but rather looked at photographic evidence. Based on this information, he testified it was “more likely” than not that the defendant was initiating a proper turn into the dedicated left-turn lane when the plaintiff–who had already entered the median–collided into the defendant. The expert further opined that the plaintiff’s vehicle was likely “traveling faster than the defendant’s vehicle” and was not actually in the turn lane when impact occurred.
Judge Decides Plaintiff’s Account is Not “Reliable”
Justice Ronald Skolrood of the British Columbia Supreme Court heard all of this testimony during a trial held in May 2018. On June 4, 2018, he issued his judgment in favour of the defendant. The judge largely disregarded the expert’s testimony because, although he found the witness qualified, his report was “simply an opinion of what might have happened in the Accident based on the assumptions he was working with.”
This left the Court to consider the relative credibility of the plaintiff and the defendant. Justice Skolrood noted the plaintiff’s testimony contained inconsistencies “that call into question the reliability of her account” of what happened leading up to the accident. For instance, she failed to fully admit she was driving on the median–and indeed, could not explain how it would have been possible for her to have not gone over the median given the final position of her car. The judge was also not impressed by the plaintiff’s claim she “could not recall” specifics of the accident because it occurred four years ago.
With respect to the defendant, in contrast, Justice Skolrood said her testimony “was clear and consistent and was not shaken on cross-examination.” Accordingly, the judge largely incorporated her account of events into his findings of fact. He found the plaintiff was on the median, in violation of the B.C. Motor Vehicle Act, and that in the course of “overtaking the defendant’s vehicle on the left,” collided with her.
The judge also found the defendant failed to “look in her driver side or rear view mirrors,” and had she done so, she probably “would have seen the plaintiff’s vehicle approaching on her left side.” That said, in prior cases B.C. judges have said that a driver who enters the median illegally is “100 percent” at-fault for an accident. Although Justice Skolrood said those prior cases did not cover the exact factual scenario presented by this case, he nevertheless found them instructive.
Ultimately, the Court said it had to determine whether or not the defendant was liable for her failure to keep a proper lookout for drivers who might be on the median illegally. Justice Skolrood answered his own question in the negative. Accordingly, he determined the plaintiff was 100% at-fault for the accident, and the Court dismissed her personal injury claim with costs.
Have You Been in an Accident? Get Help from a Surrey Personal Injury Lawyer
In any car accident or personal injury case, it is important to go into court armed with as much evidence as possible in your favour. Ideally, there are multiple witnesses who can confirm your account of what took place. If you are your only witness, it is critical that you offer consistent, truthful testimony. Any wavering or backtracking on your part may lead a judge to decide you are simply not a reliable witness, which can sink your case.
To help ensure you present the most credible testimony possible, you should contact a qualified Surrey car accident lawyer as soon as possible following your crash. The Preszler Law Firm assists people like you throughout B.C. in holding negligent drivers accountable for their actions. Call us today to schedule a free initial consultation.