In the recently published case of Gatzke v. Sidhu, 2011 BCSC 988, Mr. Justice A. Saunders found that the plaintiff was 70% at fault for a car accident which occurred at the intersection of 64th Ave. and 152 St. in Surrey. The plaintiff claimed that she sustained personal injury as a result of the accident.
Right Turns and Signalling in ICBC Accident Case
The plaintiff said she was travelling westbound on 64th Ave. and had moved over into the curb lane prior to entering the intersection at 152 St. The curb lane was not reserved for right-turning drivers. The plaintiff also said that her intention was to pass through the intersection and then make a right turn further on. The plaintiff testified that she had seen the defendant’s car at the intersection preparing to make a left turn and did not notice it again until it was “coming right at her”. The plaintiff’s car struck the defendant’s car. The defendant said that the plaintiff’s right turn signal was on as her car approached the intersection and it seemed as if the plaintiff’s vehice was slowing down. Assuming the plaintiff’s vehicle was going to make a right turn, the defendant decided that it was safe to start her left turn. As it happened, her turn placed her car directly in the path of the plaintiff’s vehicle.
In the end, Mr. Justice Saunder’s did not accept the plaintiff’s version of how the accident had happened and found that the defendant’s version of events lined up better with all of the evidence in the case, including the plaintiff’s testimony:
 The manner in which the plaintiff gave her evidence did not suggest to me that she continuously had the defendant’s vehicle under observation, as would likely have been the case, in my view, if the plaintiff had been looking forward intending at all times to drive straight through the intersection.
 The fact that the plaintiff described her views of the defendant’s vehicle in this manner suggests to me that her attention was taken away from the view directly in front of her vehicle for a short time. That aspect of the plaintiff’s evidence in my view would tend to support a finding that the plaintiff was not in fact intending at all times to drive straight through the intersection. This would be consistent with the defendant’s evidence that the plaintiff was in fact signalling and that the plaintiff had slowed down, apparently intending to make a turn.
However, the Court held that the defendant was at fault for assuming that the plaintiff would turn right and not taking more care to ensure that she could make her left turn safely:
 So, as I have stated, I find that the defendant was the dominant driver. However, the liability analysis does not end there. As the B.C. Court of Appeal stated in Salaam v. Abramovic, 2010 BCCA 212, finding compliance with the provisions of the Motor Vehicle Act is important in determining whether the parties have met their standard of care, but the provisions of the Act are not the only consideration.
 In my view, a prudent driver in the position of the defendant, while entitled to initiate her own left-hand turn, was not entitled to assume that the plaintiff would be turning right. A reasonably prudent driver, in particular given the prevailing lighting and weather, would have edged forward into the oncoming centre lane and would not have proceeded into the oncoming right-hand curb lane until either the plaintiff was right at the intersection and had slowed her vehicle right down to a minimal turning speed, or until the plaintiff had actually begun her turn. Neither of these happened in this case.
 Therefore, in my view, there was fault on both sides which caused this collision, and this is a matter for the apportionment of blame under the Negligence Act, R.S.B.C. 1996 c. 333. Apportionment of blame is based on relative degrees of moral fault. I find, in the circumstances of this case, that fault for this accident lies 70% with the plaintiff and 30% with the defendant.
The Court found that the plaintiff suffered soft tissue injuries, a concussion, and aggravation of a pre-existing knee problem, all of which disabled her from employment for a period of three months. It also found that there was substantial resolution of all of those problems within no more than nine months. The court awarded the plaintiff $25,000 in non-pecuniary damages and her lost wages for three months. As a result of the Court’s decision on liability, the Plaintiff was awarded 30% of those amounts.
Adverse Inference Upsets Claim for Persistent Knee Problems in ICBC Accident Case
The plaintiff claimed that she had ongoing knee problems as a result of the accident. This claim failed in part because the Court drew an adverse inference from the fact that she had failed to call one of her treating doctors as a witness. On this point the Court said the following:
 Now, the clinical notes of Dr. Smith are not in evidence, and Dr. Sovio’s reference to those notes therefore is problematic. However, the point emerged in cross-examination and I cannot ignore it completely. The statements made by Dr. Sovio of Dr. Smith’s opinion are clearly not admissible as evidence of Dr. Smith’s opinion, and I do not treat them on that basis. However it is apparent, from that evidence having been given by Dr. Sovio, that the plaintiff has continued to seek treatment from other doctors of her knee problem.
 The failure of the plaintiff to call evidence from that treating doctor or doctors opens up the possibility of me drawing an adverse inference, that is, an inference, arising from the plaintiff’s failure to call that evidence, that the plaintiff is reluctant to call that evidence because it is adverse or unhelpful to the plaintiff’s case.
 Given in particular that we have no other medical evidence of the plaintiff’s knee condition since she ceased treatment with Dr. Budau, and given that the plaintiff is alleging a continuing significant injury of the sort which I would have expected would lead her to continue to seek treatment or consultations in order to find a cure or relief of some sort, in my view it is entirely appropriate for me to draw such an adverse inference in this case. I find that the plaintiff has in fact been seeking treatment from at least one other doctor regarding her left knee pain and I infer that the opinion of that other doctor or doctors is that there is no connection between her knee pain and the subject accident.
 The plaintiff has not established on a balance of probabilities that her continuing knee complaints were caused by the motor vehicle accident.
Got Credibility? It Depends on the Evidence
In our courts credibility is assessed, among other things, by how well the story of a party or
witness lines up with other facts in evidence. In Bradshaw v. Stenner, 2010 BCSC 1398 (CanLII), Dillon J. summarized the factors to be considered when assessing credibility at para. 186:
Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) 1919 CanLII 11 (S.C.C.), (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis,  31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,  2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), 1997 CanLII 324 (S.C.C.),  3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356).
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