Liu v. Keurdian

2022 BCSC 1334 Liu v. Keurdian

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Liu v. Keurdian, 2022 BCSC 1334 Date: 20220808 Docket: M178928 Registry: Vancouver Between: Liang-Chun Liu also known as Allan Liu Plaintiff And Boghos Keurdian Defendant Corrected Judgment: The text of the judgment was corrected on the front page on August 10, 2022 Before: The Honourable Justice E. McDonald Reasons for Judgment Counsel for the Plaintiff: S.P. Murphy Counsel for the Defendant: M. Feoktistova P. Bura, Articling Student Place and Date of Trial: Vancouver, B.C. June 20-21, 2022 Place and Date of Judgment: Vancouver, B.C. August 8, 2022 Introduction [1] Liability related to a motor vehicle accident is the only issue raised by the parties at the trial of this action. When the rear-end collision occurred, both parties were driving westbound in the centre lane of a two-lane road. [2] Each party says the other party is liable for the collision. The plaintiff, Mr. Liu, alleges he stopped his vehicle at an occupied cross-walk when the vehicle driven by the defendant, Mr. Keurdian, collided into the rear-end of his vehicle. This allegation is not disputed. However, Mr. Keurdian says that the accident was the result of Mr. Liu suddenly moving into his lane and then braking, which resulted in Mr. Keurdian having no realistic opportunity of stopping in time to avoid the collision. [3] For the reasons that follow, I have

found that Mr. Liu is liable for the collision. Issue [4] The issue is which party is liable for the collision? Analysis [5] To determine liability, I must assess the credibility and reliability of the witnesses. In the evidence presented, I was faced with two different versions of how the collision occurred. [6] In Prasad v. Dhadda, 2022 BCSC 781 Justice Warren succinctly set out the proper approach to assessing the credibility of an interested party at paras. 92-93: [92] The proper approach to assessing an interested witness's testimony was articulated in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions . [93] The factors identified by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296, also

play a role in assessing whether the evidence of a witness is truthful and accurate. These factors include the ability of the witness to resist being influenced by his or her interest in recalling those events; the internal and external consistency of the witness's evidence; whether the witness's evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence; whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case; and the witness's demeanour, meaning the way he or she presents while testifying. [7] In Bradshaw v. Stenner, 2010 BCSC 1398 at para. 187, Justice Dillon discussed how the testimony of disinterested non-party witnesses may assist with the assessment of credibility: [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a 'stand alone' basis, followed by an analysis of whether the witness' story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version of events is the most consistent with the "preponderance of

probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions" (Overseas Investments (1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R. (3d) 298 (Alta. Q.B.) at para. 13). I have found this approach useful. [8] Assessing the credibility and reliability of a witness's testimony involves considering different concepts. As explained in R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.) at 526 [Morrissey], credibility refers to the veracity of a witness's testimony, while reliability is concerned with the accuracy of the testimony based on the ability of the witness to observe, recall and recount the events. A witness who is not credible cannot give reliable evidence on the same point. Further, credibility does not equate to reliability which means that a credible witness may give unreliable evidence: R. v. H.C., 2009 ONCA 56 (Ont. C.A.) at para. 41, citing Morrissey, at 526. [9] I received evidence from three witnesses: the plaintiff, the defendant and Mr. Ryan Shields. Mr. Shields is a member of the public who witnessed the accident. [10] Mr. Liu, who is presently 52 years old, testified that on the late afternoon of December 15, 2015, he left work and drove his two-seater Honda sports car towards a restaurant to pick up dinner on his way home. Mr. Liu was very familiar with the route he took that

afternoon as it was his usual route home. [11] All of the witnesses including Mr. Liu described the traffic at the time of the collision, which was approximately 4:45 p.m., as typical rush-hour traffic. It was still light out and while it was wintertime, it was not raining. [12] Mr. Liu's route over the 2nd avenue bridge involved merging onto Westminster Highway in Richmond, BC. Mr. Liu said that the lane he merged into eventually became the centre lane. Westminster Highway had two lanes of travel in the direction Mr. Liu was travelling - a centre lane and a kerb lane. [13] Mr. Liu drove along in the centre lane of Westminster Highway for a few minutes before the collision occurred. Mr. Liu's intention was to eventually make a left-turn a number of blocks away from the collision location. [14] As Mr. Liu approached the intersection of Tiffany Boulevard, he said he noticed approximately four to five cars in the kerb lane to the right of his vehicle slowing down or stopping at a cross-walk. Mr. Liu was familiar with this intersection and particularly with the uncontrolled cross-walk that extended from Tiffany Boulevard across Westminster Highway to form a "t-shaped" intersection. Mr. Liu said there was a bus stop and a cross-walk that featured an overhead sign. [15] Mr. Liu was driving at approximately 50 km per hour but he saw vehicles in the kerb lane stopped, so he began

slowing his vehicle down as he approached the Tiffany Boulevard cross-walk. Eventually, he could see there was a pedestrian attempting to cross the cross-walk. [16] As Mr. Liu came to a full-stop at the cross-walk, his vehicle was rear-ended by Mr. Keurdian's vehicle. Mr. Liu said that upon impact, his vehicle travelled through the cross-walk. The pedestrian avoided being struck by jumping backwards towards the vehicles stopped in the kerb lane. [17] Mr. Liu denied that in the moments before the collision he had been driving in the kerb lane. He further denied changing lanes at the Tiffany Boulevard and Westminster Highway intersection. Mr. Liu agreed there was a solid white line that separated the kerb and centre lanes of Westminster Highway at the intersection to prevent vehicles from changing lanes before the cross-walk. [18] Mr. Keurdian is presently 83 years old. He was driving home from work on the afternoon of the collision. Mr. Keurdian was also very familiar with the route along Westminster Highway and past Tiffany Boulevard as he drove it almost daily and he had lived nearby for many years. [19] Mr. Keurdian said that prior to the collision, he was driving along in the centre lane of Westminster Highway approaching Tiffany Boulevard. He was aware of the existence of the cross-walk at this intersection. [20] Mr. Keurdian said he was looking ahead of him and in his

peripheral vision he could see vehicles stopped in the kerb lane. All of the sudden, he said that the vehicle driven by Mr. Liu pulled out of the kerb lane and into his lane. Mr. Keurdian said that Mr. Liu's vehicle then slammed on the brakes ahead of him which left him insufficient time to stop before his vehicle's front-end collided with the rear-end of Mr. Liu's vehicle. [21] Mr. Keurdian was cross-examined regarding where he was looking and what he saw in the moments before the collision. Mr. Keurdian explained that he was looking straight ahead and his plan was to proceed through the cross-walk. He was not turning his head sideways when Mr. Liu's vehicle allegedly changed lanes, but Mr. Keurdian said he could see from the corner of his eye that Mr. Liu's vehicle came from the kerb lane. [22] The final witness called by the defendant was Mr. Shields. He provided his evidence by way of a video deposition which was played during the trial. [23] Mr. Shields witnessed the collision. At the relevant time, he was a post-secondary student living nearby to where the collision occurred. He, like the other parties, was driving on Westminster Highway at the time of the collision. [24] Mr. Shields was driving a small pick-up truck and he described stopping at the cross-walk at Tiffany Boulevard and Westminster Highway. He was travelling in the kerb lane and he was the first vehicle

stopped at the cross-walk. [25] Mr. Shields could see a blue sports car behind his rear-view mirror. Seconds later, the blue sports car changed lanes quickly from the kerb lane into the centre lane. [26] Mr. Shields described what he saw at the time of the collision as follows: Yeah. So I was stopped at the crosswalk. The pedestrian was crossing. As I was fully stopped, a blue sports car I noticed was right behind me. The blue sports car then switched lanes and then tried to go through the crosswalk, and the pedestrian then stopped suddenly. It was - By this point the pedestrian was right in front of me, similar to how the camera is right now, and then the blue sports car was about to go past my car, noticed the pedestrian was right in front of my car, stopped immediately, and then about one or two seconds later, that's when the accident happened. [27] On cross-examination, Mr. Shields stated he could not recall whether it was the roof or hood of the blue sports car that he saw from his rear-view mirror. However, Mr. Shields stated that his recollection was clear in regards to the quick timing of the blue sports car suddenly changing lanes. He was also unshaken in his testimony that he saw a small blue sports car stopped behind him in the kerb lane when he was waiting at the cross-walk. There was no submission made that the blue sports car identified by Mr. Shields was a

different vehicle from the one that Mr. Liu was driving that day. [28] Counsel for the plaintiff submitted that I ought to find Mr. Keurdian's evidence unreliable because he stated that he was planning to drive through the cross-walk. However, I did not understand Mr. Keurdian to be testifying that he planned to drive through the cross-walk regardless of whether someone was crossing in it at the time. Rather, Mr. Keurdian was explaining that he planned to go straight in the intersection which required him to move his vehicle through the cross-walk. [29] It was also submitted that I ought to find Mr. Keurdian's evidence lacking because he said he was looking straight forward and using his peripheral vision, for example, to see the cars stopped in the kerb lane. I do not agree that the way Mr. Keurdian was looking as he travelled forward in the centre lane renders his evidence unreliable. [30] I accept that as he looked forward, Mr. Keurdian could see things in his peripheral vision, including a vehicle changing lanes and vehicles stopped in the kerb lane next to him. When I consider his evidence as a whole, I found Mr. Keurdian's evidence to be both credible and reliable. [31] Counsel for the plaintiff also submitted that I ought to disregard Mr. Shields' evidence because Mr. Shields was unsure of how long his own vehicle was, he could not recall which specific part of the blue

sports car he saw behind him and he saw the collision from his mirror and the side. [32] In my view, Mr. Shields' evidence is highly persuasive and it aligns with other evidence I heard. Mr. Shields is a disinterested non-party who had a good vantage point to observe the collision events. He did not exaggerate during his evidence and he answered questions directly and succinctly. There was no indication that he was favouring one party over the other. [33] Mr. Shields also gave detailed, compelling evidence, for example, about his observations of the pedestrian who was trying to cross the street. This indicated to me that Mr. Shields is an observant individual who was paying close attention at the time and who has a good memory of the events both before, and after, the collision. [34] Mr. Shields was unshaken in his evidence that the blue sports car was behind him in the kerb lane and then that car switched lanes before stopping suddenly a mere second or two before the collision. I accept Mr. Shields' independent evidence. [35] Mr. Shields' evidence assists me in finding that Mr. Liu, who was driving a small sports car, changed lanes from the kerb lane to the centre lane while in the intersection. There was no dispute that there was a solid white line to prevent vehicles from changing lanes before the cross-walk. [36] Mr. Liu's evidence contradicts the independent evidence of

Mr. Shields, whose evidence I have accepted. Mr. Liu's evidence is also inconsistent with the evidence of Mr. Keurdian. [37] I find that Mr. Liu changed lanes from the kerb lane into the centre lane a second or two before he brought his vehicle to a sudden stop at the cross-walk. Mr. Liu suddenly stopped because he could see the pedestrian in the cross-walk standing near the front of Mr. Shields' vehicle. Mr. Liu's sudden lane change and stop caused the collision by providing Mr. Keurdian with insufficient time to react and stop. [38] I accept the evidence of Mr. Shields and Mr. Keurdian about the circumstances that led to the collision, and I find Mr. Liu wholly at fault. Mr. Liu is therefore 100% liable. "E. McDonald J."