Neutral Citation: 1996 ONICDRG 163
OIC A96-000040
ONTARIO INSURANCE COMMISSION
BETWEEN:
HUNG PHAN
Applicant
and
NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD'S
Insurer
DECISION
Issues:
The Applicant, Mr. Hung Phan, states that he was injured in a motor vehicle accident on October 30, 1993. He applied for, and received statutory accident benefits from the Non-Marine Underwriters, Members of Lloyd's ("Lloyd's"), payable under Ontario Regulation 672.1 Lloyd's subsequently refused to pay any further benefits on the ground that Mr. Phan was not an occupant of its insured vehicle at the time of the accident. The parties were unable to resolve their dispute through mediation, and Mr. Phan applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Was Mr. Phan involved in a motor vehicle accident on October 30, 1993?
If the answer to the first question is no, is Lloyd's entitled to repayment of all benefits received by the Applicant, under the Schedule?
Result:
- Mr. Phan was involved in a motor vehicle accident on October 30, 1993.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on Wednesday, September 4, 1996, before me, Lawrence Blackman, Arbitrator.
Present at the Hearing:
Applicant:
Hung Phan
Mr. Phan' s
David F. Longley
Representative:
Barrister and Solicitor
Lloyd's
Karen Earl
Representative:
Barrister and Solicitor
Interpretation services in English and Vietnamese were provided by Mr. Markvan Tran.
Witnesses:
Mr. Thang Van Luu
Mr. Hung Phan
Police Constable Jan R. Sorette
Exhibits:
Exhibit 1
Copy of Metropolitan Toronto Police, Motor Vehicle Accident Report, bearing Accident Number 58044, and accident date of October 30, 1993.
Exhibit 2
Copy of the Toronto Hospital, Western Division, Emergency Services Report, for Hung Phan, arrival date of October 30, 1993.
Exhibit 3
Copies of 3 pages of Accident Field Notes of Police Constable Sorette, accident 93/10/30.
Evidence and Findings:
On October 30, 1993, at approximately 8:00 a.m., an accident occurred in downtown Toronto. The Applicant, Mr. Hung Phan claims that he and a friend were passengers in a car owned and operated by Mr. Thang Van Luu, when that car was struck by another car driven by Mr. Van Hen Nguyen.
The issue before me was whether Mr. Phan was indeed a passenger in the Luu motor vehicle when the accident took place. My finding and reasons follow.
1. Evidence
Mr. Phan has been a friend of Mr. Luu for approximately 10 years. Both gentlemen gave their evidence in the absence of the other, and prior to the investigating officer, Police Constable
Sorette testifying. Both friends stated that on Saturday, October 30, 1993, they arranged by telephone to go out that evening for coffee. Mr. Luu testified that he picked Mr. Phan up at the latter's Jameson Avenue residence in Toronto. Both friends testified that Mr. Phan sat in the front passenger seat. Mr. Luu then picked up someone he only knew as "Thang," who was a friend of Mr. Phan. Mr. Luu was not sure where Thang lived. Mr. Luu testified that Thang sat in the back seat of the car. Mr. Phan did not know Thang's present whereabouts.
Mr. Luu and Mr. Phan both testified that the three men had not made any final plans as to their evening's destination, when they were involved in a car accident. The evidence was consistent that after stopping at a four-way stop, and while in the process of crossing an intersection, Mr. Luu's vehicle was struck on the passenger side, towards the rear, by another vehicle which had failed to stop at a stop sign. The accident report indicates moderate damage to both vehicles.
Mr. Luu testified that the accident occurred at the intersection of Wellington Street and "a small road" in Toronto. Mr. Phan did not know the names of the streets where the accident took place. Police Constable Sorette recorded in his accident report and in one section of his field notes, that the accident occurred at the intersection of Wellington St. West and Tecumseth St. His synopsis however notes Wellington St. West and Niagara St. as the accident location.
The accident report notes Wellington St. as having two lanes; the field notes however record four lanes. The Accident report appears to indicate that no charges were laid, certainly no section and pertinent Act are listed in the appropriate entry. The field notes however indicate a charge of "disobey stop sign" being laid.
The evidence was consistent that the accident happened at approximately 8:00 p.m. The accident report indicates that the accident scene was dark, with artificial lighting. Police Constable Sorette's field notes record that he received a radio call of the accident at 8:10 p.m., and arrived at the accident scene at 8:15 p.m.
Mr. Luu's uncontradicted evidence was that he lost consciousness as a result of the accident. He testified that when he regained consciousness, a tow truck had already arrived at the accident scene. Subsequently, the investigating officer also arrived. Mr. Luu and Mr. Phan both testified that none of the three occupants in their vehicle left the accident scene between the time of the accident and subsequently being escorted to the hospital by Police Constable Sorette. Mr. Luu testified that no one in the car had a cellular phone, nor did any of the three use a pay phone. He did not know who called the police.
Police Constable Sorette has been a police constable for 21 years. He was with the traffic office from 1989 until 1996, and still performs traffic duties. He was the only officer who investigated this accident. When he arrived, the two involved vehicles were still in the intersection. He testified however that there were only two individuals in the Luu vehicle, being the driver Mr. Luu, and "Nguyen Chi T" [sic] of 99 Dowling Street, the latter sitting in the front passenger seat. He notes three individuals in the other vehicle driven by Mr. Van Hen Nguyen. Five names are listed in his report. However, the accident report entry for the number of occupants in the Luu vehicle has been left blank, while three occupants are noted as being in the Nguyen vehicle. All five listed persons are noted as having "minimal" injuries.
Police Constable Sorette testified that there were three tow truck drivers, two ambulance attendants, and numerous spectators milling around the accident scene on his arrival. Mr. Phan recollected two tow trucks and an ambulance. Police Constable Sorette indicated that he misidentified one of the tow truck drivers as being a driver involved in the accident. Mr. Luu and Mr. Phan both testified that the officer told the ambulance to leave. Mr. Phan stated that the officer said that the ambulance would charge them if it took them to the hospital. Police Constable Sorette at first testified that he didn't send the ambulance away, but then indicated that he may have done so as the ambulance was not needed.
Police Constable Sorette testified that he would only not note the names of passengers if the accident was limited to property damage. He stated that he had "difficulty speaking to the drivers and the passengers" in the involved vehicles due to their English language limitations.
Police Constable Sorette stated that his usual practise is to only ask the driver for identification. This was contrary to the evidence of both Mr. Luu and Mr. Phan who testified that the officer asked all the occupants of their vehicle for identification. Mr. Phan testified that he showed the officer his OHIP and immigration papers. He said that the officer also asked him whether he was injured and whether he was wearing his seat belt.
Mr. Phan's limited physical description of Police Constable Sorette was accurate. Mr. Luu's description was not as accurate, incorrectly describing the officer as a "big man," although he was correct that the officer was "not so tall."
Police Constable Sorette could not identify Mr. Phan at the hearing. However, he candidly admitted that he probably would not be able to identify the drivers from the accident either. Police Constable Sorette testified that his recollection of this accident was based both on his independent recollection (due to the many subsequent inquiries he has had on this accident) and on his notes. He indicated that he was not sure how many accidents he investigates a year. His accident report was completed at an unspecified time on the next day, being October 31, 1993. The report was signed on November 2, 1993. I heard no evidence as to whether all information contained in the report was written down at the accident scene.
The accident report indicates that Police Constable Sorette drove Mr. Luu and "Nguyen Chi T" to Toronto Western Hospital, although the officer's notes do not indicate that he drove anyone to a hospital. His notes show him returning to his Strachan Ave. station at 9:20 p.m.
Mr. Luu and Mr. Phan both testified that they and Thang sat in the back seat of the police car while being driven to the hospital. Police Constable Sorette confirmed that any passengers would sit in the back of his vehicle. The Luu vehicle was left at the accident scene. Mr. Luu testified that the officer dropped them off at around 9:00 p.m. at the door of the Toronto Western Hospital emergency department. Mr. Phan's evidence was inconsistent in this regard. He first testified that the officer dropped them off at the "emergency secretary room" at Bathurst and Dundas (which is the hospital location), but then stated that the officer went into emergency and talked to the "emergency lady." Police Constable Sorette had no independent recollection, but "suspects" that he would have dropped his passengers off at the door.
The Toronto Western emergency report shows an arrival time for "Hung Phan" of 9:25 p.m. on October 30, 1993, being brought in by "Police." His Jameson Avenue address is noted. An OHIP number and date of birth are given. There was no evidence or submission that any of the personal information noted in the records was inconsistent with the Applicant's history.
The hospital notations regarding the date, time, and point of impact on the Luu vehicle are consistent with the oral and documentary evidence. The seating position of Mr. Phan in the car is consistent with the testimony of Mr. Luu and Mr. Phan. The nursing notes, which show an assessment time of 9:25 p.m., state that Mr. Phan was accompanied by "friends" (in the plural). As the triage code states that this was a "non-urgent" matter, and as I take notice that one is rarely seen immediately by an emergency nurse on a Saturday evening in a downtown Toronto hospital with non-urgent injuries, I question whether the time of arrival was actually 9:25 p.m., or was in fact an earlier point in time.
Complaints of right knee, right sided head, and neck pain are documented in the records. It is noted that a belted Mr. Phan hit his right temple, apparently on the right door. Mr. Phan was seen by a physician at 12:50 a.m. A skull hematoma is documented. Handwritten notes concerning the skull are unfortunately largely illegible. X-rays of the right knee were ordered. The x-ray report is unfortunately not included. The discharge diagnosis is a soft-tissue injury. Rest, local ice, and "OTC analgesics" are prescribed. A discharge time of 1:05 a.m., accompanied by a "friend," and referral to the family doctor is noted.
Nothing in the hospital records notes any suspicion that the patients's complaints were being manufactured, or that the injuries were not consistent with the described motor vehicle accident.
Mr. Luu testified that he left the emergency department at around 2:00 a.m. or 3:00 a.m. He stated that a friend drove him to his home in North York. He testified that the friend did not take Mr. Phan or Thang home, as they both lived in Toronto. Mr. Phan's testimony was inconsistent in this regard, first saying that his sister and brother picked him up, and then stating that Mr. Luu's wife's sister drove him and Mr. Luu home.
2. Conclusions
The Insurer's submission that Mr. Phan was not involved in the motor vehicle accident of October 30, 1993, is based primarily on the investigating officer having no recollection or notation of Mr. Phan's as an occupant in the Luu motor vehicle.
I found Police Constable Sorette to be a fair and impartial witness, who gave his evidence truthfully to the best of his ability. I find however that at this point he really has little independent recollection of one of many accidents he has investigated (an accident which occurred nearly three years ago) and that his evidence is largely based on his records and report made at the time of or after the accident. I find that there are errors and omissions in those notes.
I also find discrepancies in the evidence of Mr. Phan and Mr. Luu, specifically in the time period following the officer leaving the accident scene for the hospital. Most notable is the contradiction as to how, and with whom, these individuals left the hospital. I cannot find however that these discrepancies undermine the entirety of their evidence.
The following facts are not disputed, and I accept same. The accident occurred at about 8:00 p.m. Mr. Luu lost consciousness for an unspecified period of time. When he regained consciousness, a tow truck had already arrived at the accident scene. The officer arrived at 8:15 p.m. Police Constable Sorette drove certain individuals to Toronto Western Hospital. He was back at his station at 9:20 p.m. An individual identified as "Hung Phan" was assessed at Toronto Western Hospital at 9:25 p.m. That individual had injuries consistent with sitting in the front passenger seat of the Luu vehicle, and being involved in this motor vehicle accident.
I find that the "Hung Phan" noted in the hospital records is the Applicant. This was the evidence of Mr. Luu and Mr. Phan. Nothing in the hospital records suggests that someone was impersonating the Applicant. I have no evidence as to who else this "Hung Phan" might be.
I find that this accident was neither staged nor prearranged. There was no evidence or argument to this effect.
I find that it was Police Constable Sorette's decision to drive the occupants to Toronto Western Hospital. I find that the Police Constable's offer could not have been anticipated.
A relatively short period of time elapsed between the time of the accident and the time Mr. Phan was noted to have been seen by the emergency nurse. During much of this time, Mr. Luu and "Nguyen Chi T" were in Police Constable Sorette's presence.
The facts of this case therefore allowed little opportunity for Mr. Luu and "Nguyen Chi T" to conceive, plan and execute the almost spontaneous fraudulent scheme suggested. Such a plan would involve significant logistical difficulties and time constraints. Mr. Phan would have to be located, advised of the illicit design, and kept apprised of any changes in plan, all in secrecy. He would have to attend Toronto Western Hospital immediately upon being told of P.C. Sorette's choice of that institution. The participants would have to rehearse their stories, and Mr. Phan would need to be coached on his contrived physical complaints and symptoms sufficiently to deceive the attending medical personnel. A hematoma of the skull would have to be manufactured.
There was limited apparent personal motive for Mr. Luu and "Nguyen Chi T" to engage in this speculative scheme, and significant risk to them.
I thus find conjecture of such a fraudulent scheme to be far less plausible than the alternative scenario that Mr. Luu and Mr. Phan, despite some inconsistencies in their evidence, are telling the truth that Mr. Phan was indeed a passenger in the Luu vehicle, and that Police Constable Sorette inadvertently failed to note Mr. Phan's name in his records.
I am therefore satisfied, on a balance of probabilities, that Mr. Phan was involved in a motor vehicle accident on October 30, 1993. Therefore, the question of repayment, which was dependent upon a contrary finding, need not be addressed.
Order:
- Mr. Phan was involved in a motor vehicle accident on October 30, 1993.
September 25, 1996
Lawrence Blackman Arbitrator
Date