October 14, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
DECISION ON A PRELIMINARY ISSUE
Before: Robert Bujold
Date of Decision: August 30, 2012
Mohamed Omar Hersi, alleges that, on December 26, 2008, he was involved in an “accident” as defined in section 2(1) of the Old Regulation.
At the time of the incident, accident benefits were available pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Old Regulation”). Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “New Regulation”) came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been paid under the Old Regulation are to be paid under the New Regulation, but in amounts determined under the Old Regulation. The transition rules also provide that, subject to certain exceptions, the procedures for claiming benefits after August 31, 2010 are governed by the New Regulation.
He applied for statutory accident benefits from ACE INA Insurance (“ACE”). ACE has not paid any accident benefits to Mr. Hersi because it maintains that he was not involved in an “accident.” The parties were unable to resolve their disputes through mediation, and Mr. Hersi applied for arbitration at the Financial Services Commission of Ontario.
The preliminary issue is:
1. Was Mr. Hersi involved in an “accident” as defined in section 2(1) of the Old Regulation?
1. Mr. Hersi was involved in an “accident” as defined in section 2(1) of the Old Regulation.
2. Mr. Hersi is entitled to his expenses of the preliminary issue hearing. If the parties are unable to agree upon the quantum of expenses, either party may request that the Arbitrator determine the issue pursuant to Rule 79 of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
On the evening of December 26, 2008, an incident took place at the intersection of Parliament Street and Richmond Street in the City of Toronto. As a result of the incident, Mr. Hersi was taken to Mount Sinai Hospital by ambulance where he was diagnosed with a fractured left hip. Mr. Hersi maintains that he suffered the fractured hip when he was knocked to the road by a Greyhound bus that was making a left hand turn from northbound Parliament to westbound Richmond. Mr. Hersi states that he was struck by the bus as he walked northbound across Richmond on the west side of Parliament. He was walking in a marked pedestrian crosswalk. Although the bus driver’s evidence has changed over time, he currently maintains that the bus did not hit Mr. Hersi, or even come close to hitting him. An eye witness to the incident appears to support the bus driver’s account. A police investigation also concluded that the bus did not strike Mr. Hersi.
The question for the purpose of this preliminary issue hearing is whether the use or operation of the bus directly caused Mr. Hersi’s injuries. To some extent, answering this question has involved making determinations of credibility but, to an even greater extent, it has been an exercise in arriving at the only reasonable conclusion available on the evidence.
For the following reasons, the Arbitrator found that, whether Mr. Hersi was actually struck by the bus or not, the use and operation of the bus directly caused his fall and injuries. As a result, the Arbitrator find that he was involved in an “accident.”
Mr. Hersi’s account
Mr. Hersi testified that, at the time of the incident, he was walking northbound on the west side of Parliament Street. He was making his way home near Parliament and Gerrard Street East. When he arrived at the southwest corner of Parliament and Richmond, the light for north and southbound vehicular and pedestrian traffic was red. He stopped at the intersection and waited for the light to turn green. Mr. Hersi testified that a Greyhound bus that had been travelling north on Parliament arrived at the intersection and also stopped at the red light.
When the light turned green, Mr. Hersi testified that he started to cross Richmond within the pedestrian crosswalk on the west side of Parliament. He walked without incident at a medium pace. He stated that he was not paying attention to the bus when he first started to cross the street, but the sound of the accelerating bus engine caused him to turn his head to the right, and he saw that the bus was making a left hand turn from northbound Parliament to westbound Richmond. Mr. Hersi testified that when he turned his head and noticed the bus making its turn, he was about half way across Richmond and the bus was only a metre away from him.
Mr. Hersi’s evidence regarding the exact events that then took place is somewhat unclear. At one point in his evidence, Mr. Hersi referred to “getting shocked, like something hit me. I fell down.” At least twice, Mr. Hersi stated that he “stumbled and fell down” upon being “shocked” by the bus. At another point, Mr. Hersi testified that the bus hit him on his hand (demonstrating by extending his right hand). He also testified that the bus hit him on his right shoulder. In all accounts of contact between the bus and his body, Mr. Hersi was consistent that the bus braked hard, and that the bus only lightly bumped him.
Mr. Hersi testified that, as a result of the incident with the bus, he fell to the ground on his left hip. He experienced great pain. He tried to get up, but could not stand, so he laid back down on the road.
Shortly thereafter, an ambulance arrived, followed by the police. Mr. Hersi did not recall talking to a police officer. After the police arrived, the ambulance took him to Mount Sinai Hospital where an x-ray confirmed a left hip fracture.
Mr. Hersi denied that he was having any trouble walking as he crossed Richmond, or that he may have stumbled or tripped for reasons not having to do with the bus coming at him. He denied having prior trouble with his hip. He denied that there was any issue with his footwear, which he noted was the same footwear he wore at work. He denied that he had been drinking prior to the incident. In fact, he denied that he drinks at all, as it is not permitted by his Muslim faith.
Mr. Hersi testified that he has no doubt that he would have safely made it across Richmond Street had it not been for the bus.
All of the witnesses, including Mr. Hersi, agreed that the weather was clear and the roads were dry at the time of the incident. They also agreed that it was dark out, but the intersection was well lit.
The bus driver’s account
The bus driver, Mr. DG, provided a signed written statement regarding the incident dated January 15, 2009. Mr. DG also testified at the hearing.
Mr. DG’s statement, made within three weeks of the incident, is important evidence, and the Arbitrator quoted an extended passage from it:
When I was making my left turn my traffic light was still green. It was also green for pedestrians. I think that there were pedestrian signals at the intersection. The pedestrian sign was white with the little man walking symbol. When I started to make my turn there were no pedestrians crossing Richmond Street. That is why I started my turn. I was heading for middle lane on Richmond Street. When I first saw the pedestrian my bus was about a metre from the eastern most line of the pedestrian crosswalk, on the west side of the intersection. The pedestrian was heading northbound towards the northwest corner of the intersection. I did not see where he actually came from because the first time I saw him he was in the crosswalk, adjacent to the middle lane of Richmond Street. He was facing north so there was no eye contact between the pedestrian and myself. I could tell that it was a man. When I saw the pedestrian, at that point, he was walking. There was nobody else crossing at that time. He was wearing a grey coat. I don’t remember if he had any head covering on. When I first saw him he was clearly visible. I didn’t see his eyes so I don’t know if he was looking ahead or down at the ground. When I saw him first I put on my brake and stopped. My speed was only 5 kilometres so I stopped right away. I would like to clarify that when I stopped I was 1 metre away from him. So when I first saw him I think I was maybe 4 or 5 metres away from him. I stopped instantly when I braked. In relation to the front bumper of the bus he would have been to the right side portion of the bumper. He was far from the wheels because the wheels are one metre back from the front bumper.
I stopped my bus. I never hit the pedestrian with my bus. After I stopped I saw that he stumbled and fell down onto the ground. I thought that this was unusual so my impression was that there was something wrong with him – that is to say something wrong with him prior to this happening. He didn’t see the bus at all. When I stopped he got up from the ground. I left my bus where it was. I opened the door and went over to the pedestrian. When I got out of the bus he started getting up on his feet. When he saw that I had got out of the bus he got back down to the ground. When he was down the first time, he was on his chest. When he went down the second time I think he was on his knees. I spoke to him. I asked him if he needed help. He said “yes, call the ambulance” or something like that.
A hand-drawn sketch of the crosswalk on the west side of Parliament is attached to
Mr.DG’s statement. The following words are hand-written on the sketch: “Sketch by
D. DG made Jan. 15, 2009.”
The sketch appears to show where Mr. Hersi fell, and the location and position of the bus when it came to a stop. According to the sketch, Mr. Hersi appears to be in the crosswalk, about two thirds of the way across Richmond, if travelling north. The bus appears to have stopped in the process of making a left turn into the middle lane of Richmond. The front left corner of the bus appears to be at or just extending past the line marking the east side of the crosswalk; in other words, the bus appears to have stopped at or just inside the east boundary of the crosswalk.
Mr. DG’s evidence at the hearing differed in several material respects from both his statement and the sketch.
At the hearing, Mr. DG testified that, when the light turned green to allow him to make a left hand turn from northbound Parliament to westbound Richmond, he released his brake, and only rolled one or two metres when he noticed Mr. Hersi crossing Richmond at the crosswalk on the west side of Parliament. At that point, he estimates that the bus was perhaps 10 metres from Mr. Hersi. He rolled a bit further into the intersection as he continued his left hand turn, but applied his brakes and came to a complete stop, perhaps 4 or 5 metres from Mr. Hersi. He then observed that Mr. Hersi was “not walking so straight. ” Mr. DG testified that Mr. Hersi then stumbled and fell down.
Mr. DG explained that the distance estimates contained in his statement were wrong because he had only been driving a bus approximately six months at the time of the incident. He was used to driving a truck with a hood and that threw off his estimates. As well, the adjuster who took his statement was suggesting answers in an effort to capture what happened. As a result, he found himself making poor guesses. He maintained that the passage of time has permitted him to think carefully about what happened and the actual distances involved.
Mr. DG did not remember drawing or seeing the sketch attached to his statement.
The independent witness account
Ms. CD testified at the hearing. At the time of the incident, Ms. CD was working for the Salvation Army driving a large van that is used to bring food, drink and other support to homeless youth.
Ms. CD also appears to have signed a statement dated June 9, 2009, approximately 5½ months post-incident. Ms. CD did not recall giving the statement, although she did not deny it, and she agreed that the statement appeared to be an accurate representation of what she had witnessed.
Ms. CD testified that on the evening of December 26, 2008, she was driving the van in the north (right) lane of westbound Richmond Street when she stopped for a red light at the intersection with Parliament Street. She was in the north lane because she was preparing to make a right hand turn onto northbound Parliament. Her view of the intersection was unobstructed, although she admitted that her attention was also focused on looking for northbound traffic on Parliament (so she could potentially make a right hand turn on the red light). She was also talking with a co-worker located behind her in the van.
Ms. CD testified that, while she was stopped at the red light, she saw Mr. Hersi walk into the crosswalk on the west side of Parliament. She testified that Mr. Hersi was walking in a southerly direction. When advised that both Mr. Hersi and the bus driver agreed that Mr. Hersi was walking in a northerly direction, she initially stated that she had seen the opposite and would have to disagree with their accounts. She then offered the explanation that, when she turned to look at her co-worker, she may have got mixed up.
What Ms. CD observed next is rather unclear. She testified that she saw Mr. Hersi walking normally and quite quickly in a southerly direction, and then she saw him lie down on the road in the crosswalk. However, at another point in her testimony, her account was more consistent with her statement which reads: “I may have looked away but then I looked back and he was now lying down on the ground.” As a result, it was not clear to me whether Ms. CD actually saw Mr. Hersi lay himself down on the road, or whether she merely observed him walking across the road at one point and then later saw him lying in the crosswalk.
There were “two distinct things” that Ms. CD said she could remember: “the man lying on the road first and then the bus making its turn.” Again, this evidence contradicts both Mr. Hersi and Mr. DG. Mr. Hersi had the bus stopping at or about the same time it made contact with him and he fell to the road. Mr. DG had Mr. Hersi stumbling and falling after the bus stopped. Neither of these accounts had Mr. Hersi lying on the road before the bus tried to make its turn as Ms. CD contended. As well, Ms. CD testified that, at no point during her observations, did she see the bus move. Given her statement that she saw “the bus making its turn,” this represents another inconsistency in Ms. CD’s evidence.
Ms. CD did not leave the scene following the incident. She got out of her van with her co- worker and spoke to the bus driver, Mr. DG. She told Mr. DG that she had witnessed everything, and she knew the bus had not hit Mr. Hersi. She also went over to Mr. Hersi with her co-worker, and when asked by Mr. Hersi if she had seen the bus hit him, Ms. CD told Mr. Hersi that she had witnessed the incident, and the bus did not hit him. She said Mr. Hersi became agitated at that point. She also spoke to the police officer who arrived on the scene, and told him that the bus did not hit Mr. Hersi, but rather that she saw Mr. Hersi lie down in the crosswalk.
When told that Mr. Hersi was taken to hospital with a fractured left hip, Ms. CD confirmed that she did not see Mr. Hersi suffer any mishap that would explain his injuries. She did not see him get hit by the bus nor did she see him fall. She admitted that there was a clear disconnect between what she observed and Mr. Hersi’s injuries.
The officer’s investigation
Police Constable TZ who is stationed with 51 Division of Toronto Police Services investigated the incident. He testified at the hearing.
According to his notes, PC TZ was dispatched around 8:16 p.m. on the night in question to respond to a report of a male being struck by a Greyhound bus at the intersection of Parliament Street and Richmond Street.
When he arrived at the scene a couple of minutes later, PC TZ observed Mr. Hersi in the intersection being attended to by paramedics. He also observed the bus in the intersection, and noted that it had been in the process of making a left hand turn. He could see Mr. DG in the bus. After confirming that Mr. Hersi was the only “person of concern” and securing the scene, PC TZ continued his investigation. PC TZ testified that his investigation focused on whether or not Mr. Hersi had been hit by the bus because, without contact, the incident would not constitute a motor vehicle accident.”
PC TZ did not take any statements, but from his notes and recollection, it appears that he received accounts of the incident from Mr. DG and Ms. CD, as well as an employee of Coffee Time located on the northwest corner of Parliament and Richmond.
As noted, Ms. CD reported to PC TZ that not only had Mr. Hersi not been hit by the bus, but he had laid himself down in the crosswalk. Mr. DG also denied hitting Mr. Hersi.
PC TZ testified that he spoke with the paramedics on the scene, and he was told by them that Mr. Hersi had not sustained any injuries, at least nothing consistent with being hit by a bus.
PC TZ was adamant that all witness accounts, including the bus driver’s account, had Mr. Hersi walking southbound on Parliament at the time of the incident. PC TZ testified that he was as certain about that fact as he was certain of any of his evidence. PC TZ confirmed that his investigation of the incident, including his examination of Mr. Hersi’s clothing for dirt and damage, proceeded on the basis of his understanding that Mr. Hersi had been walking southbound at the time of the incident.
PC TZ also testified that he examined the bus for any markings that would evidence contact between Mr. Hersi and the bus. It was dark out, and even though the intersection was well-lit, he used a flashlight to assist his examination. He stated that he looked from the ground up to about six feet from the ground and could find no evidence of scuff marks or anything else to indicate contact between Mr. Hersi and the bus.
PC TZ testified that he tried to speak to Mr. Hersi, but he was belligerent and uncooperative. PC TZ testified that he could smell alcohol on Mr. Hersi, and he attributed Mr. Hersi’s behaviour to alcohol.
When asked if he observed that Mr. Hersi was in pain and could not get up, PC TZ
retorted “more like someone who didn’t want to.” In fact, based on his conclusion that there had been no motor vehicle accident and no injuries sustained (at least none of any significance), PC TZ cautioned Mr. Hersi for public mischief for staging a false accident. It appeared from PC TZ’s tenor, as he recounted this part of his evidence, that he had been quite upset with Mr. Hersi.
Altogether, including his examination of the bus, his receipt of witness accounts, and the making of his notes, PC TZ was on scene for a little over an hour.
PC TZ did not follow up with any witnesses or with Mr. Hersi after this initial investigation. PC TZ testified that he would have visited Mr. Hersi at the hospital and tried again to get his account, if there had been any evidence that a motor vehicle accident had taken place. In his view, however, this was a pretty obvious case of someone who was drunk and stumbled in front of the bus, or worse, a case of someone trying to stage a false accident. He also testified that, as part of his investigation, he ran a background check on Mr. Hersi and discovered that he had been charged in the past with two separate drug-related offences. Given all of these considerations, PC TZ found that there was no need to follow up with anyone regarding the incident.
Section 2(1) of the Old Regulation provides that an “accident” means an incident in which the use or operation of an automobile directly causes an impairment.
The law is clear that there does not need to be direct physical contact between the automobile and the person who sustains the impairment for there to be an “accident,” provided that the automobile is a dominant feature in the incident, and not ancillary to it. Further, the use or operation of an automobile does not need to be the only cause to be a direct cause, provided that the use or operation of the automobile “sets in motion a train of events which brings about offence.
Analysis and conclusions
For the reasons that follow, the Arbitrator was persuaded that the use and operation of the bus directly caused Mr. Hersi to fall and fracture his hip, whether or not there was actual physical contact between Mr. Hersi and the bus.
The Arbitrator first dealt with the suggestion, arising mainly from the evidence of Ms. CD and PC TZ, that Mr. Hersi staged his fall. This suggestion arose, at least in part, from the belief that Mr. Hersi had not sustained any significant injuries in the incident. This belief was wrong. There is no dispute that Mr. Hersi was taken from the scene of the incident to Mount Sinai Hospital where he was diagnosed as having a fractured hip. There is no other reasonable explanation for his fractured hip other than the incident.
Keeping with the evidence of Ms. CD, there is no reason to doubt that she is essentially an honest person, but she made a poor witness, and her evidence was unreliable. Her evidence was inconsistent in several respects with the evidence of both Mr. Hersi and Mr. DG. It was also internally inconsistent, such as whether she actually saw Mr. Hersi lay himself down on the road, and whether she observed the bus move at any time. As a result of the inconsistencies on these material issues, the Arbitrator gave little weight to any of her evidence.
The Arbitrator did, however, offer an explanation for at least part of what Ms. CD may have seen. Based on her account, the Arbitrator found it likely that Ms. CD did not witness Mr. Hersi’s fall. The Arbitrator expected that, at the moment of his fall, Ms. CD was talking to her co-worker or had her attention directed to traffic conditions. The Arbitrator also found that Mr. Hersi tried to get up after the initial fall, but being unable to support his weight due to his fractured hip, he laid himself back down on the road. This is what Ms. CD likely witnessed. It also appears that Mr. Hersi was intending to walk back toward the bus when he tried to get up, which could explain Ms. CD’s perception that Mr. Hersi was headed south.
With respect to PC TZ, the Arbitrator found that he let the initial reports gathered from Ms. CD, Mr. DG, and the paramedics unduly colour his assessment of Mr. Hersi and his investigation into the incident. This is perhaps not entirely surprising. By all accounts gathered, Mr. Hersi had not been hit by the bus. In fact, an independent and seemingly reputable witness, Ms. CD, told
PC TZ assumed that Mr. Hersi had laid himself down on the road in front of the bus. The bus driver also denied hitting Mr. Hersi. Further, the paramedics advised PC TZ that Mr. Hersi had not sustained any injuries consistent with being hit by the bus. PC TZ testified that Mr. Hersi became belligerent and uncooperative when he tried to speak with him. He found Mr. Hersi’s behaviour suspect for someone involved in an accident.
The Arbitrator found this characterization of Mr. Hersi’s behaviour to be unfair. Mr. Hersi was seriously injured, and he was in a great deal of pain. Further, he was being approached by an officer who was accusing him of staging an accident, and threatening him with mischief charges. Mr. Hersi had also just been effectively told by Ms. CD that she also believed that he had staged the incident. In such circumstances, the Arbitrator was not surprised that Mr. Hersi was more than a little upset.
If the incident was not staged, then what did happen?
A good place to start to answer this question is with the hand drawn sketch of the incident by PC TZ, and the notably similar sketch attributed to the bus driver, Mr. DG. Both sketches show the bus stopped mid-turn, with the front left bumper of the bus at (or just
protruding into) the crosswalk. The Arbitrator accepted this evidence. There is no reason to doubt the accuracy of PC TZ’s sketch showing the location of the bus and Mr. Hersi. The bus was not moved until after his arrival. Although Mr. DG does not remember drawing or approving a sketch, the fact that the sketch attached to his statement is consistent with the sketch prepared by PC TZ affirms the likelihood that PC TZ’s sketch is reasonably accurate.
The Arbitrator did not accept Mr. DG’s revised account that the bus was 4 or 5 metres from Mr. Hersi when it came to a stop. While Mr. DG may have come to believe this version of events with the passage of time, the Arbitrator did not accept that the passage of time has enabled him to reflect more carefully on the incident and provide a more accurate account. The Arbitrator preferred the evidence contained in his statement, made closer in time to the incident, that the bus was perhaps one metre from Mr. Hersi when it came to a stop.
The Arbitrator found that the evidence, when considered as a whole, supports the conclusion that, at minimum, Mr. Hersi was greatly startled (or as he put it “shocked”) by the bus as he crossed Richmond Street. The Arbitrator accepted that he did not take notice of the bus initially, but when the sound of the approaching bus caused him to look over his right shoulder, the bus was travelling toward him and not far away. What happened next is somewhat speculative. However, the Arbitrator accepted that Mr. DG braked and brought the bus to a stop as it was about to enter the crosswalk.
As for Mr. Hersi, the Arbitrator found that he likely reached out with his right arm, as though to block a hit from the bus.
Whether the bus hit Mr. Hersi’s outstretched hand is difficult to say, but the Arbitrator did find that the bus was sufficiently close to him to include this possibility. As well, the force of such a hit would likely have travelled through Mr. Hersi’s right arm to his right shoulder which could also explain Mr. Hersi’s evidence that he experienced a hit to his right shoulder. However, the Arbitrator did not find it likely that there was direct contact between Mr. Hersi’s right shoulder and the bus, as this would likely mean that there was also contact between Mr. Hersi’s legs or torso and the bumper of the bus. There is no evidence that this occurred, including Mr. Hersi’s own evidence. As a result, the Arbitrator did not find that the bus stopped close enough to Mr. Hersi to hit him with its bumper.
PC TZ testified that he could not find any scuff marks that would provide evidence of contact between Mr. Hersi and the bus. The arbitrator had no doubt that PC TZ examined the bus for scuff marks, but it was dark out and, even with a flashlight, a small scuff mark could be missed. It was also unclear how much dirt was on the outside of the bus, especially up at shoulder level. Further, the Arbitrator found that PC TZ did not expect to find any scuff marks, and the Arbitrator believed that his expectations may have influenced the time and attention he gave to this part of his investigation.
Ultimately, it does not matter whether there was contact between Mr. Hersi’s body and the bus. Even without contact, the bus was sufficiently close to Mr. Hersi to greatly startle him and cause him to lose his balance and fall. A light bump from the bus to Mr. Hersi’s outstretched arm may have further contributed to knock him off balance, but contact between Mr. Hersi and the bus is not a necessary element in this case. The Arbitrator found that the use and operation of the bus directly caused Mr. Hersi to lose his balance, fall to the road, and fracture his hip, even if it did not touch him.
The Arbitrator then dealt with the suggestion that Mr. Hersi’s fall may have been due to some cause unrelated to the use or operation of the bus, such as alcohol consumption, unsafe footwear, a crack or bump in the road, or some other cause unknown. The Arbitrator rejected these propositions. It stretches credulity to suggest that, at or about the same time as the bus stopped within one metre of him, Mr. Hersi happened to trip or slip for some reason unrelated to the use or operation of the bus. Further, the only such theory with any basis in the evidence is the suggestion that Mr. Hersi may have been drinking. On this point, the Arbitrator made two observations.
First, the only evidence that Mr. Hersi smelled of alcohol came from PC TZ who had an unfavourable impression of Mr. Hersi. No other witness who spoke with Mr. Hersi made this observation, nor was the Arbitrator directed to anything in the paramedic or hospital records to indicate that Mr. Hersi showed signs of being under the influence of alcohol or drugs. The records do show that the paramedics and hospital were aware of a dispute regarding whether or not Mr. Hersi had been hit by the bus, but the records make no reference to intoxication as a possible explanation for the fall.
Second, even if Mr. Hersi had been drinking, it is unlikely that it materially contributed to his fall. Any loss of balance due to alcohol would have been secondary to the fact that Mr. Hersi was startled and put off balance by the approaching bus. By any account, the use and operation of the bus remains the dominant feature of this case.
For all of the above reasons, the Arbitrator find that Mr. Hersi was injured as a result of an “accident” as defined in section 2(1) of the Old Regulation.