Yapyuco v. Paul,


2008 BCSC 691

Date: 20080602
Docket: M103176
Registry: New Westminster


Rachelle Yapyuco



Kenneth Henry Paul
also known as Ken Paul


Before: The Honourable Mr. Justice Curtis

Reasons for Judgment

Counsel for the Plaintiff

Thomas L. Spraggs
& Oliver Wilson


Counsel for the Defendant

Raymon Pici

Date and Place of Trial:

April 9-11, 2008


New Westminster, B.C.

[1]                Rachelle Yapyuco claims damages for personal injuries she alleges were caused in a motor vehicle collision March 3, 2006.  The defendant, Mr. Paul, denies that he was the cause of the collision and the nature and extent of Ms. Yapyuco’s injuries is in issue.

[2]                The collision occurred on the morning of March 3, 2006 near the top of the Alex Fraser Bridge.  Rachelle Yapyuco was driving her 2004 Mitsubishi Spider on her way to work in Richmond.  The defendant, Ken Paul, who is a drapery installer, was driving his 2004 GMC 3500 series one ton cube van on his way to a store to pick up supplies.  Each of the parties travelled regularly over the Alex Fraser Bridge.  The weather was clear and dry and not a factor in what occurred.

[3]                At the trial, Ms. Yapyuco testified that the speed limit was 80 kilometers per hour but she was going less than 60 because the traffic was stop and go.  She said she was travelling to Richmond in the innermost or left of the three southbound lanes behind Mr. Paul’s white van.  The traffic was really slow.  She changed to the middle lane and as she drove forward, the white van started coming into her lane.  She went toward the right lane but cars were coming too fast in it for her to enter, so she went back into the middle lane, where the white van was blocking her, cutting her off.  She braked which slowed her vehicle but she was not completely stopped at the time of collision.  She said she was steering her car straight ahead in the middle lane when the white van collided with her.  She did not see any signal from the white van that it was intending to change lanes.

[4]                Ken Paul’s evidence concerning how the accident occurred contradicts Ms. Yapyuco’s version.  He denies that he changed lanes as she testified.  Mr. Paul testified that he was driving in the left lane with the flow of the traffic which was normal for rush hour.  There were no stalls or accidents on the bridge and no construction.  He said while he was proceeding straight ahead in the left lane he was travelling in, his own van was struck on the passenger’s side.  As he put it, “I didn’t hit her.  I was going to work minding my own business – bang, that’s how it happened.”

[5]                No other witnesses to the accident testified at trial and there was no police investigation.  The parties stopped after the collision and exchanged information.  Mr. Paul testified “She told me she was cut off.  I was in my lane, she hit me.”  No one asked Mr. Paul for further details of this statement nor was Ms. Yapyuco questioned about it, consequently it is not clear if she said she was cut off whether she meant by Mr. Paul and made the statement to blame him, or by someone else to excuse her own conduct.

[6]                There are photographs of both the vehicles in evidence.  Ms. Yapyuco’s car is extensively and fairly evenly damaged along its left side.  Mr. Paul’s van is not heavily damaged but seems to be most markedly damaged by an impact around the back of the passenger door, but with little or no damage to the rear quarter panel.  The damage could be consistent with either version, although it looks like a little more like the damage to be expected if Ms. Yapyuco’s car swerved into Mr. Paul’s contacting it near her driver’s wheel and with the back end sliding toward the van and impacting it.

[7]                Rachelle Yapyuco’s evidence given at the discovery conducted January 21, 2008, almost two years after the collision contradicts her evidence at trial in a number of significant areas.  At trial, she testified she changed to the middle lane because the left lane was really slow.  At the discovery, she was asked:

Q         Why did you want to go back into the middle lane?

A          No particular reason.

Q         Well, I’ll suggest to you that perhaps traffic was moving quicker in the middle lane?

A          No.  They were pretty much the same.  The first two left lanes were pretty much the same.

Her evidence at the discovery was in accord with Mr. Paul’s evidence at trial that it was normal rush hour traffic.

[8]                At trial, Ms. Yapyuco testified the collision occurred as she was steering straight ahead and braking in the middle lane.  At her discovery, she was asked at page 27:

Q         It looked like he was moving towards your lane?

A          That’s right.

Q         But he had not entered your lane; correct?

A          I don’t know if he had entered it.

And again on page 31:

Q         You don’t know where the white van was when the impact happened; isn’t that right?

A          I know he was beside me.

Q         You don’t know if the white van had entered into the middle lane or whether the white van was still in the left lane; correct?

A          I don’t know exactly where he was.

[9]                When cross-examined about this contradiction in her evidence at trial, she said the only reason she gave that answer was she did not want to assume.  Surely if she had observed the collision to take place in the middle lane as she said in her testimony at trial, she would not have to assume anything to answer the questions responsively at the discovery.

[10]            Making all reasonable allowances for the fact that few people speak with mathematical precision, and that litigants on occasion give answers which fail to convey what really occurred, I am nonetheless persuaded in these circumstances that the plaintiff cannot convincingly put her case any more strongly than she put it at the discovery, which was about two years after the collision.  At the discovery she could not say whether the impact was in the middle lane.  That, combined with Mr. Paul’s evidence that he never changed lanes, defeats her case.  I cannot say for certain how this collision occurred, but on the evidence before me, it appears more probable that Ms. Yapyuco drove into Mr. Paul than that he drove into her.  Her claim is dismissed.

“V.R. Curtis J.”