December 14, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Robert Bujold
Date of Decision: November 13, 2013
Mr. Hashi, aged 21, and Ms. Ahmed, aged 23 at the time, claim that they were injured in a motor vehicle accident on November 25, 2009. They applied for and received statutory accident benefits from Allstate. In August 2010, Allstate had completed its investigation into the claim determining there had been no accident, and terminated payment of any further benefits. Allstate sought the repayment of benefits paid to Mr. Hashi and Ms. Ahmed.
The parties were unable to resolve their disputes through mediation, and the Applicants applied for arbitration. Mr. Hashi seeks further payments for attendant care benefits, housekeeping benefits, medical expenses, and a special award. Ms. Ahmed seeks further payments for income replacement benefits, attendant care benefits, housekeeping benefits, medical and cost of examination expenses, and a special award. In both proceedings, Allstate continues to seek repayment of benefits paid.
The parties agreed that both matters should proceed to a preliminary issue hearing where for the purpose of the preliminary issue hearing, the Applicants’ proceedings were combined.
The preliminary issue is:
Were the Applicants involved in an “accident” as defined in the Schedule?
The Applicants were involved in an “accident” as defined in the Schedule.
EVIDENCE AND ANALYSIS:
The parties asked the arbitrator to determine the very narrow question of whether the Applicants were involved in a motor vehicle collision on November 25, 2009 as reported.
Allstate’s position that a collision did not take place was based mainly on the report of its car accident reconstruction expert, RS. RS concluded that the physical evidence indicated that “these vehicles did not collide with one another.”
Mr. Hashi secured his own car accident reconstruction report prepared by MJ. MJ did conclude whether likely took place but he did conclude that certain damage and transfer marks on the two vehicles were consistent with a collision between them. As MJ put it, the information provided to him definitely supported the proposition that these two vehicles could have collided.
The Arbitrator was persuaded on the strength of the applicant’s testimony and the expert witnesses the Applicants were involved in an “accident” as defined in the Schedule.
Onus of Proof and Order of Presentation
Allstate presented its case first as it was presenting a positive defence. This was agreed to by both parties. It is not uncommon for an insurer to present its case first without shifting the onus of proof. The question of onus of proof arose as the Arbitrator felt the Applicants misapprehended the onus of proof in this case.
A review of law and jurisprudence by the Arbitrator concluded that it is impossible to prove what did not happen in a case. Allstate maintains the collision did not occur as reported and implicitly implies that the Applicants were involved in fraud. The legal onus remains upon the Applicants to prove they had been in an accident. Given the apparent confusion regarding the onus of proof the Arbitrator stated that on the evidence presented, the Applicants proved, on a balance of probabilities, that they were involved in a car “accident” as defined in Schedule.
The Reported Incident
Investigating Constable Petersen testified at the hearing. She responded to a call of a car accident on the evening of November 25, 2009. When she arrived she noted a “two vehicle event.” The vehicle identified as vehicle 1 was a brown 1997 Toyota Camry operated by Ms. Mohamed. There were two passengers in Ms. Mohamed’s vehicle. Ms. Ahmed was riding in the front passenger seat. Mr. Hashi was riding in the back seat. No one in Ms. Mohamed’s vehicle reported having any injuries.
Ms. Mohamed was merging into the right turn lane of when she struck the vehicle ahead of her. The other vehicle a red 2002 Dodge Caravan operated by Ms. Singh with three passengers none of whom reported having any injuries. Ms. Singh reported that she was travelling southbound wanting to turn when she “felt a hit from behind.” She estimated that she was travelling approximately 20 km per hour when her vehicle was struck.
Officer Petersen testified that she had specific recall of the car accident, and noted that both vehicles were towed. Officer Petersen noted “light” damage to the “front corner left” of Ms. Mohamed’s vehicle. Ms. Singh’s vehicle was noted as having damage to its “back right. Neither Ms. Mohamed nor Ms. Singh was called to give evidence at the hearing.
The Expert Evidence
RS, retained by Allstate to investigate the collision, and MJ, retained by Mr. Hashi to do the same, were restricted to examining photographs of the Mohamed and Singh vehicles, and comparing the photographic evidence to exemplar vehicles. Both opinions contained a degree of speculation and uncertainty, and both experts were required to make some assumptions regarding the vehicles general condition.
The damage to the Mohamed vehicle was primarily to the front left corner and left side mirror. Damage to the Singh vehicle included the rear right corner of the car and right side of the rear bumper.
Both experts reviewed the available photographs, compared the damage to exemplar vehicles, correlated damage on one vehicle to the other noting similarities and differences, and using their understanding of vehicle motion and dynamics, formed opinions on whether any of the damage was consistent with a collision as reported in the motor vehicle accident report and statements.
The main areas of disagreement between RS and MJ focused on 1) the damage to the rear right bumper of the Singh vehicle and 2) the transfer marks on the rear right panel of the Singh vehicle.
The experts advanced their own theories and observations of the damage to the vehicles. In summary, RS concluded the damage was not consistent with a collision between the two vehicles. MJ concluded that the damage to the vehicles was consistent with a glancing or sideswipe type collision between the vehicles. MJ’s opinion that the physical evidence was consistent with a collision was persuasive, but his evidence alone did not lead the Arbitrator to conclude that a collision was probable. The Applicants’ evidence provided further support for the conclusion that a collision between the vehicles took place as reported.
The Applicants’ Evidence
Much of the Applicants’ evidence was generally consistent. The Applicants were also consistent in their evidence that the accident happened when the Singh vehicle came into the lane that the Mohamed vehicle was already travelling in. Ms. Ahmed, who was sitting in the front passenger seat, testified that it was her recollection that the Singh vehicle made a last minute lane change into the right turn lane, moving directly in front of them, then braked. The Mohamed vehicle swerved at first, but failed to avoid a collision. It hit the van, and then brushed up against it, which helped slow down the Mohamed vehicle.
On the whole, the Arbitrator found that the Applicants provided their evidence in a generally straightforward manner without apparent exaggeration or embellishment. Neither Applicant hesitated to admit when they could not remember specifics of the evening in question, and Mr. Hashi admitted that the statement he gave in March 2010 likely reflected a better recollection of events than his recollection at the time of the hearing.
Allstate’s challenge to the Applicants’ account of events focussed on three main areas of concern or “red flags.” Allstate pointed to these concerns as evidence that the Applicants had not been involved in a collision as reported.
Allstate noted that the plaza with the Tim Horton’s/Wendy’s is located just east of Martin Grove Road, just south of Highway 7. Allstate challenged how the Mohamed vehicle came to be north and west of the plaza, when the apparent intention upon leaving the plaza was to drive the Applicants home, both of whom lived south of the plaza, also just east of Martin Grove Road.
Allstate noted that it was Mr. Hashi’s evidence that the Mohamed vehicle was travelling eastbound on Highway 7 intending to turn south on Highway 27 when the collision occurred. This is contrary to the evidence of Officer Petersen who said both vehicles were in the right turn lane of southbound Highway 27 intending to turn west on Highway 7.
Allstate took issue with the fact that Ms. Ahmed and Mr. Hashi had different accounts of the speeds of the two vehicles at the time of impact.
With respect to Allstate’s first concern, Ms. Ahmed testified that she is not sure how they came to be north and west of the plaza where the collision took place. She could only say that it was dark, she did not live in the area, and they were engrossed in conversation and somehow got lost. Mr. Hashi testified that Ms. Mohamed exited the plaza onto some “smaller roads.” They initially drove along these smaller roads and this contributed to them getting lost. He estimated that they had been driving for about 5 to 10 minutes after leaving the plaza when the collision took place.
The Arbitrator agreed with Allstate that there was no reason for Ms. Mohamed to travel west of Martin Grove Road or north of Highway 7 in order to drive the Applicants home. It is in the opposite direction of the Applicants’ homes however, there was nothing necessarily inconsistent with these facts and the Applicants’ account that they were lost. If the Applicants were complicit in a fraud, it would have been simpler to come up with a story that gave a reason for being at the intersection of Highway 27 and Highway 7 than to say they were lost.
As for Mr. Hashi’s confused testimony simply provides further evidence that the Applicants were lost. It was not only dark, but Mr. Hashi was sitting in the back seat. The Arbitrator found it likely that these factors affected Mr. Hashi’s sense of direction. The Arbitrator found that the discrepancy between Mr. Hashi and preponderance of the evidence on this point demonstrates that the Applicants’ evidence was not contrived or rehearsed.
With respect to the speeds of the two vehicles at the time of impact Ms. Ahmed and Mr. Hashi’s accounts are clearly different; however, the Arbitrator rejected Allstate’s contention of this being compelling evidence that a collision did not take place.
Allstate also asked the Arbitrator to draw an adverse inference from the fact that the Applicants did not call Ms. Mohamed to give evidence at the hearing. The Arbitrator was not persuaded that her oral testimony would have shed more light on events than her account contained in Officer Petersen’s notes.
Based on all of the evidence, viewed as a whole, the Arbitrator was satisfied that the Applicants were on a balance of probabilities, that they were involved in an “accident” as defined in the Schedule.