The personal injury claimant was driving his Porsche Cayenne and entered the intersection of 203rd Street and Logan Avenue in Langley, BC on a yellow light. Another driver turning left failed to see the claimant and turned in front of him causing the accident.
A witness videotaped the entire car accident and forwarded the recording to the investigating RCMP officer and an adjuster at the Insurance Corporation of British Columbia (“ICBC”). The RCMP officer, who initially had written the claimant a violation ticket for running a red light at the intersection, viewed the video and then rescinded the ticket. The claimant’s ICBC adjuster viewed the video, noted the contents, but accidentally destroyed the video! (Gulati v. Moleschi, 2016 BCSC 1061) The witnesses could therefore only rely on their notes of the video.
The only issue to be determined in this case was liability for the accident. The court found that the claimant could have safely stopped on the yellow light had he paid closer attention to the state of the light as he approached the intersection. However the claimant chose to view the light from a distance and, seeing it was green, decided to proceed without a further assessment, “which would have revealed a light that was already yellow as he was approaching. While it does not appear that he was consciously trying to “beat” a yellow light, he was negligent in failing to ensure the light was still green as he came immediately upon the intersection. “
The other driver’s decision to commence her left turn was also unreasonable without her being assured the oncoming traffic was stopped. “Her failure to observe and yield the right of way to approaching traffic that was in the intersection or so close as to constitute an immediate hazard, such as the Plaintiff in the present case, leads to the conclusion that she is partly at fault for the accident that occurred.”
In finding a 50/50 split of liability the judge stated:
 The same result was reached in analogous circumstances in Cornish v. Khunkhun, 2015 BCSC 52 at paras. 119-130. In that case, the through driver entered the intersection after the light had turned yellow in circumstances where there was no evidence that she could not have safely stopped before entering the intersection. She was struck by the left-turning driver, who had not been paying proper attention when he proceeded to turn left before the light became red. The court found that both parties breached their statutory duties under the MVA and apportioned fault equally.
 Here, as in Cornish, both parties breached their statutory duties. The Plaintiff proceeded through the intersection on a stale yellow light just at the same time as the Defendant, who failed to keep a proper lookout, moved into her left turn. By the time of impact, the light had turned red. Accordingly, I find each party liable for the accident in equal measure and apportion liability at 50 percent to the Plaintiff and 50 percent to the Defendant
ISSUE: Should ICBC have to pay a penalty for losing the video of the car accident?