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Whom Will a Judge Believe in a “He Said/She Said” Car Accident Lawsuit?

Determining liability for a car accident often comes down to whom a judge finds more credible, the plaintiff or the defendant. In the absence of accident reconstruction experts or other specialists, personal injury claims typically succeed (or fail) based on a person’s ability to recall an accident that happened several years earlier. While judges do not expect perfect recall, they do expect a certain degree of consistency and reliability from the parties and other witnesses.

Case Study: Sharma v. Kandola

Here is an illustration of what we are talking about. Recently, a B.C. Supreme Court judge issued his judgment in the personal injury case of Sharma v. Kandola. This case was tried over the course of several days in September and October of 2018, although the accident took place four years earlier, on October 15, 2014.

The location of this accident was King Street in Ontario, a residential street connecting Seacote Road and No. 5 Road. Of particular note, Kingswood Elementary School lies to the north of King Road. This is important because it places King Road within a school zone, where the speed limit is just 30 km/hour.

The plaintiff is a young woman who was, at the time, completing her grade 12 year at Matthew McNair Secondary School. Approximately six months earlier, the plaintiff obtained her driver’s license. She was driving her father’s car on the day of the accident.

The Details of the Accident

More precisely, the plaintiff was giving a friend a ride back to her house on King Road sometime after 3p.m. According to the plaintiff, as she approached her friend’s house, she “slowed her vehicle using the brakes, activated the right turn indicator,” and moved her vehicle slightly to the right (south) side of King Road. The plaintiff said she remained stopped on the right side for “approximately 5 to 7 seconds” before deciding to make a U-turn and park on the left (north) side of King Road.

The plaintiff said she checked over her shoulder and saw no approaching vehicles. She then began to make her U-turn–also known as a “reverse turn” in B.C. traffic law–when her car was struck by another vehicle. This second vehicle was driven by the defendant in this case.

Based on photographs introduced at trial, the defendant’s vehicle “struck the front driver’s side” of the plaintiff’s car at a right angle. The force of the impact “jammed” the plaintiff’s front tire into its wheel well, breaking the axle. ICBC later declared the plaintiff’s vehicle an “obvious total loss.” There was also approximately $6,900 in damage to the front-end of the defendant’s vehicle.

The Defendant’s Explanation

According to the trial judge, Justice Kenneth W. Ball of New Westminster, the defendant “did not recall the specific date of the collision, other than it occurred in 2014.” The defendant testified that he was travelling on King Road to visit a relative.

The defendant maintained that he obeyed the 30 km/hour school-zone speed limit at all times prior to the accident. He initially told the judge he was “two car lengths behind” the plaintiff’s vehicle. Later, he revised that statement say he “may have only been one car length behind.”

This was not a minor correction, Justice Ball observed. Indeed, the judge noted that if the defendant was only one car length behind, that meant there was only a one-half second separation between the two vehicles, assuming the defendant was actually travelling at 30 km/hour.

Setting that aside for the moment, the core of the defendant’s testimony–and in fact, his entire defence–was that contrary to the plaintiff’s testimony, she did not slow down and signal before starting her reverse turn. To the contrary, the defendant insisted the plaintiff simply started to turn without warning, in effect making her responsible for the collision.

The Defence’s Witness Proves Unhelpful

As it turned out, there was also a passenger in the defendant’s car. The witness was a longtime employee of the defendant. The witness reiterated his boss’ testimony that the latter was driving at the legal limit of 30 km/hour. However, Justice Ball noted that the witness based this testimony on the vehicle’s “proximity” to Kingswood Elementary School at the time and not on any “personal observation or experience.” In fact, the judge pointed out, the witness neither held a driver’s licence himself nor had any experience driving on B.C. roads.

Even more unhelpful to the defence’s case, the witness testified the defendant’s car “was about 4 or 5 seconds behind” the plaintiff’s vehicle. This was far greater than the one-half second distance claimed by the defendant himself in his revised testimony. If the witness was correct, Justice Ball said, that meant the defendant had more than enough time to react and avoid the collision with the plaintiff.

The Judge’s Decision

Ultimately, Justice Ball simply found the plaintiff more credible and reliable than the defendant. More importantly, all of the witnesses agreed that the plaintiff’s vehicle remained in the eastbound lane of King Road at all times prior to the collision. This mattered because as long as the plaintiff remained, even partially, in the eastbound land of King Road, the defendant had no right to try and pass her, as both vehicles were on a two-lane road in a school zone. The defendant was therefore “negligent and wholly responsible for the collision.”

As for damages, Justice Ball awarded the plaintiff $75,000 in non-pecuniary damages for her pain and suffering, $85,000 for her estimated loss of future earning capacity, and roughly $5,300 in other damages.

Need Legal Advice Following an Ontario Car Accident? Call Preszler Injury Lawyers Today

Even relatively straightforward “he said/she said” personal injury claims require an extensive amount of pre-trial investigation and preparation. That is why if you have been injured in a car accident you should speak with an Ontario personal injury lawyer as soon as possible. Contact the Preszler Injury Lawyers today to schedule a free consultation.



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