July 17, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Mr. Wang and Primmum
Date of Decision: June 22, 2017
Heard Before: Adjudicator Kimberley Parish
WAS THERE AN ACCIDENT: Injured party gives conflicting and unreasonable testimony, injured lacks credibility
Mr. Zhu En Mr. Wang was injured in a car accident on October 24, 2013 and sought accident benefits from Primmum. When his applications were denied he applied for arbitration at the FSCO.
- Was there an “accident” within the meaning of s. 3(1) of the Schedule?
- If the October 24, 2013 incident constitutes an “accident” is Mr. Wang entitled to payment in the amounts for services:
- $2,212.40 for chiropractic treatment;
- $200.00 for a disability certificate;
- $940.00 for an attendant care assessments?
- Is Mr. Wang entitled to interest for the overdue payment of benefits?
- There was no accident within the meaning of s. 3(1) of the Schedule.
- As there was no accident within the meaning of s. 3(1) of the Schedule, the benefits in dispute and interest are not payable.
EVIDENCE AND ANALYSIS:
Mr. Wang is currently 62 years old and he came to Canada in March 2013. Mr. Wang was on his way to work early in the morning to start his shift at Sunshine Supermarket. The dispute is a factual one – Did an Accident occur?
Mr. Wang submits that he sustained injuries as a result of being struck by the vehicle. Primmum’s position is that a vehicle never struck Mr. Wang and he sustained no injuries, therefore an accident did not occur.
Early morning on October 24, 2013, while Mr. Wang was riding his bicycle along the sidewalk to work, a vehicle was coming out of the driveway of a school. The front of the vehicle struck Mr. Wang and the impact knocked him off of his bicycle. The driver then exited the vehicle and moved the bicycle to the side, and then tried to flee the scene. Mr. Wang was dizzy and on the ground and when he got up, he tried to prevent the driver from fleeing from the scene. It was then the driver punched Mr. Wang in the chest. No one else was at the scene to witness what had happened. The driver of the vehicle called the police and about 30 minutes later, a police officer attended the scene. The police officer spoke English, which Mr. Wang does not understand. A woman also came to the scene to see if she could help and Mr. Wang stated that the woman spoke to him in Cantonese which he does not understand. Mr. Wang stated he only understands the Fuquing language, and he is illiterate. Mr. Wang described that he had felt dizzy and was crying. Mr. Wang pointed to his right hip area and stated that was where the vehicle had hit him. Mr. Wang stated he also sustained injuries to his left elbow, his left hip and his back.
At the time of the accident, Mr. Wang stated he did not yet have an OHIP card and he did not see a doctor following the accident. He stated his son-in-law advised he should contact a lawyer. Mr. Wang attended Perfect Physio & Rehab Centre three days following the accident. He was assessed there and received acupuncture, cupping, and massage. Mr. Wang attended over 20 sessions of treatment at this clinic over a period of three months. When Mr. Wang was asked by if he ditched his bicycle prior to being struck by the vehicle, Mr. Wang responded he did not. Mr. Wang stated the rear wheel of his bicycle was run over by the vehicle after he had been knocked to the ground.
Mr. Wang testified that he was not riding his bicycle very fast and he estimated the driver of the vehicle was driving 60-70 kilometres per hour when the vehicle struck him. Mr. Wang stated that both he and his bicycle were thrown together about two metres from the car. Mr. Wang stated that the punch to his chest from the driver caused Mr. Wang to experience a lot of pain. There was some question of the accuracy of the testimony due to the lack of translator at the scene, and also of the changing testimony that Mr. Wang gave.
Constable Bodi testified he was close by the area and he arrived on the scene within a few minutes of receiving the dispatch call. When he arrived on the scene, he observed the bicycle on its side, not blocking the entrance of the driveway to the daycare centre. He first spoke to the driver who was present at the scene. Constable Bodi stated that Mr. Wang seemed agitated, but that Mr. Wang and Ms. L, a woman who appeared from a day care centre, appeared to have a conversation with one another and it appeared as if they understood each other. Constable Bodi understood and observed there to be no injuries sustained by Mr. Wang. Mr. Ramawad appeared to be fine. Mr. Wang kept pointing to his bicycle.
Constable Bodi stated that he has observed “hundreds, maybe thousands of accidents during the past 10 years.” Through Ms. L, Constable Bodi was told that Mr. Wang was asking for money and pointing to his bicycle. Ms. L told Constable Bodi that Mr. Wang was not on the bicycle at the time when the bicycle was hit by the vehicle. Constable Bodi classified the incident as a non-reportable accident and no charges were laid. If Mr. Wang had been hit, Constable Bodi stated the incident would have been written as a full accident report. Constable Bodi provided Mr. Wang with an Exchange of Information Form and Mr. Wang ripped it up in front of Constable Bodi.
Mr. Ramawad, the driver of the car, testified that his children attend the daycare where the incident occurred. He had just dropped off his kids at about 7:30 a.m. that morning. He was driving about 5-10 kilometres per hour within the parking lot towards Denison St. when he observed Mr. Wang walking his bicycle along the sidewalk. Mr. Ramawad then stopped while he was observing two-way traffic on Denison St. as he waited about 4-5 minutes to move due to traffic, so he could make a left-hand turn. As Mr. Ramawad moved forward in his vehicle, 0-3 kilometres per hour, looking to the left, the front bumper of his vehicle hit the rear tire of Mr. Wang’s bicycle. Mr. Ramawad stated he did not know how Mr. Wang’s bicycle ended up in front of his vehicle. Mr. Wang was not on the bicycle, he was standing beside a tree making a call on his telephone. Mr. Wang came running over. Mr. Ramawad could not understand what Mr. Wang was saying. Mr. Ramawad then called the police. The police officer responded quickly and arrived shortly after the call. Mr. Ramawad stated Mr. Wang did not appear to be injured. When Mr. Wachna asked Mr. Ramawad if he punched Mr. Wang, Mr. Ramawad stated he did not. The police officer did not issue Mr. Ramawad a ticket or a warning. Mr. Ramawad was told he could go. When Mr. Hamilton asked Mr. Ramawad how Mr. Wang’s bicycle ended up in front of his vehicle, Mr. Ramawad stated “it was a scam.”
Ms. L was an employee of the daycare and she did not witness the incident. Her employer asked her to go outside into the parking lot following the incident to see if she could assist, as she speaks Mandarin. Ms. L observed the police officer asking Mr. Wang in English if he would move his bicycle. Ms. L stated the bicycle owner did not speak English so she spoke to him in Mandarin, and he seemed to understand as he replied to her in Mandarin and told her that he did not understand what the police officer was saying. Ms. L stated that Mr. Wang told her that he wanted his daughter there as she understood English but he did not. Ms. L stated she translated this information to the police officer. Ms. L heard Mr. Wang say something in another language which she did not understand. Ms. L submitted that Mr. Wang seemed angry but did not speak very much. Mr. Wang did not communicate his name or his date of birth to the police.
Primmum submits that there are two versions of what happened involving the incident on October 24, 2013. One version was supported by the testimony of two witnesses and the CNRs of Mr. Wang’s own family doctor. The opposing version of events was only supported by Mr. Wang’s testimony. Primmum takes the position that Mr. Wang’s version should not be accepted for the following reasons: it conflicts with common sense, it conflicts with Mr. Wang’s own evidence, it has been contradicted by the evidence of other witnesses, and it comes only from Mr. Wang’s testimony, which has many indicators of unreliability.
The Arbitrator reviewed the evidence and found two different versions of what has happened. The Arbitrator noted that even if he accepts Mr. Wang’s testimony that he did not understand Mandarin, there are still inconsistencies within what Mr. Wang has provided through his testimony.
The Arbitrator concluded that Mr. Wang did not answer the question directly put to him regarding why the bystander, Ms. L, provided Constable Bodi, with specific information that was not provided to her by Mr. Wang. This was a very straight-forward question, yet Mr. Wang needed this question to be put to him about seven times before he responded that he did not know. Mr. Wang also testified under cross-examination that both he and his bicycle were thrown together two metres after being struck by the vehicle. Mr. Wang then stated the rear wheel of his bicycle was underneath the wheel of the vehicle. When confronted by Primmum that Mr. Wang had changed his story, Mr. Wang stated that he was thrown but the bicycle was not. This point is a fundamental change in the description of what happened, and speaks to the credibility of Mr. Wang’s testimony.
The Arbitrator noted that it does not make logical sense that Mr. Ramawad would have been driving at a speed of 60-70 kilometres per hour in the parking lot of the daycare centre where he had dropped off his children, then hit Mr. Wang on his bicycle and run over the rear wheel of Mr. Wang ’s bicycle. Therefore, the Arbitrator did not find Mr. Wang to be a credible witness and apportion little weight to his testimony.