April 22, 2015

SABS Update: The Evidence Doesn’t Lie – Right?

Osaro v PAFCO Insurance Company

(FSCO A12-000757) Arbitrator Jessica Kowalski; Decision on a Preliminary Issue

MVC May 2010: The Applicant, Osaro claimed to drive a 1999 Oldsmobile which he says T-boned an Acura in an intersection. He claimed he struck an Acura as it attempted a left turn from a plaza and drove into Osaro’s path. Osaro reported the collision to a reporting centre the following day.

Pafco submitted that Osaro misrepresented the collision between the vehicles, or if the two vehicles did make contact it was not in the manner described by Osaro. Pafco declined to pay benefits.

RESULTS IN ARBITRATION

Three other occupants of Osaro’s car gave discrepant testimony which undermined Osaro’s credibility, including the reasons for being on the road, the route, the destination and the number of stops en route. The inconsistencies cast doubt Osaro’s version of events, leading the Arbitrator to conclude “an aura of improbability” was cast over the way the incident occurred.

Inconsistences arose in Osaro’s prior statement evidence and his testimony:

Statement: No one called police.
Testimony: He called 911, told the operator that no one was hurt, argued with the driver of the Acura and unilaterally terminated the call

Statement: He was unaware of any passengers in the Acura.
Testimony: The front seat passenger had to exit the Acura before the driver could exit through the passenger door (the Oldsmobile was blocking the driver’s side door)

Statement: He did not go to the hospital after the accident.
Testimony: He went to the hospital (after two stops) by taxi and called a friend from Hamilton to pick him up at the hospital to take him home

The Arbitrator strongly preferred the evidence of Rob Seaton, an accident reconstructionist over the engineer hired by Osaro. Seaton concluded that the cars did not collide with one another as reported.

Based on the level of crush damage to the Acura’s steel running board and metal components, there should have been corresponding damage to the front of the Oldsmobile. The parts of the Oldsmobile that protruded the most should have had corresponding damage – but they did not. The level of intrusion into the Acura would require a collision at a significant speed which was inconsistent with the lack of air bag deployment in either vehicle. There were no horizontal lines in the damage to the Acura which would have been expected had it been in motion when struck. Damage to the bumper of the Oldsmobile was consistent with travel at 8 km per hour or less which contradicted the evidence of Osaro and his passengers who stated he was travelling 40-50km per hour. The absence of damage to the black foam behind the front bumper cover on the Oldsmobile also suggested a low speed impact and the absence of crush damage to the air conditioning coils behind and below the bumper of the Oldsmobile also suggested low speed. Finally, paint and transfer marks were not consistent with the profile or elevation of damage to the Acura.

In summary, the vertical and horizontal abrasions on the Acura’s side made up 48 inches of damage that did not correspond to the damage on the front bumper cover of the Oldsmobile. The Arbitrator concluded that Osaro was not involved in an accident as reported within the meaning of the Schedule.

IMPLICATIONS

The Arbitrator concluded that “both the Oldsmobile and the Acura sustained damage in some sort of collision”. The issue was that the Arbitrator was not persuaded that the vehicles collided or came into contact as alleged by Osaro. Section 2(1) does not require the Arbitrator to find the collision occurred as alleged by the Applicant. It simply requires a finding that an accident occurred for benefits to be payable. The SABS are a no-fault regime and it is concerning to see entitlement conflated with a liability and credibility assessment.

In any event, it is common for parties to “disagree” on the way a collision occurs. In the context of a tort claim, significant discrepancies often arise as to how the collision occurred. Both Plaintiff and Defendant give testimony, experts are called and liability is assessed. The trier of fact makes determinations about how the collision occurred and which party is at fault.

The engineer testified the Acura had damage consistent with two collisions. Consider the possibility that Mr. Osaro may have been mistaken about the extent of the damage caused in the collision because he was unaware that the Acura had pre-existing damage. He may have made inaccurate assumptions about the way the collision occurred as a consequence. In this decision, no alternative theory was posited about the damage done to the bumper, fender and headlights of the Oldsmobile owned by Osaro. It seems most probably that a collision did occur – which would entitled Osaro to benefits. It is unknown why the driver of the Acura was not called as a witness by either party.

Concern over automobile fraud ought not obscure the analysis where an Applicant was in a collision but may be mistaken about how it occurred.

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