Neutral Citation: 1998 ONFSCDRS 2

FSCO A97-000479

BETWEEN:

JOYCE OWUSU

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

The Applicant, Joyce Owusu, claims that she was injured in a motor vehicle accident on May 24, 1996. She applied for statutory accident benefits from Co-operators General Insurance Company, payable under the Schedule¹ Co-operators refused to pay benefits on the grounds that Ms. Owusu was not a passenger in the vehicle at the time of the motor vehicle accident. The parties were unable to resolve their disputes through mediation, and Ms. Owusu applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue in this hearing is:

Was Ms. Owusu a passenger in the vehicle that was involved in an accident May 24, 1996?

Ms. Owusu also claims her expenses incurred in the arbitration proceeding.

Ms. Owusu was not a passenger in the vehicle that was involved in the accident of May 24, 1996.
The issue of entitlement to expenses is deferred.

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on June 18, 1998.

Present at the Hearing:

Applicant:

Joyce Owusu

Ms. Owusu's

Jeffrey A. Gauze

Representative:

Barrister and Solicitor

Co-operators's

Philippa G. Samworth

Representative:

Barrister and Solicitor

Before:

William J. Renahan

Arbitrator

Witnesses:

Joyce Owusu, Applicant

Janet Boateng, driver

Police Constable David Miller

Rita Asure, Ms. Owusu's employer

Myrna Evidente, Insurer's claims representative

Introduction:

Ms. Owusu claims that she was returning home from a shopping trip when Ms. Boateng saw her on the sidewalk and offered her a ride in her vehicle. She claims that after the vehicle stopped at a bus stop, and before she could unfasten her seat belt to get out, the vehicle was struck from the rear by a driver who subsequently left the accident scene without identifying himself.

Ms. Owusu was not at the accident scene when it was investigated by Police Constable Miller. Constable Miller recorded that Ms. Boateng said that she stopped "and let her sister out of vehicle." I accept Ms. Boateng's explanation that "sister" means a female friend.

About two weeks after the accident Ms. Owusu attended her family doctor complaining of lumbar and cervical strain. Over the next month she underwent 17 physiotherapy treatments.

I found much of the evidence in this case inconsistent and much of the testimony of Ms. Owusu and Ms. Boateng imprecise.

Events leading up to accident

Ms. Boateng and Ms. Owusu met some months earlier at a Ghanaian funeral. They each testified that they had not seen each other again until the day of the accident. Myrna Evidente is a claims representative for the Insurer. She testified that she interviewed Ms. Boateng and recorded in her notes, made shortly after the interview, that Ms. Boateng said that she and Ms. Owusu worked together at the time of the accident. Ms. Boateng denied saying this.

Ms. Owusu claimed that on the afternoon of May 24, 1996, she was returning from shopping for a comforter in a commercial-industrial area. She said that she did not buy a comforter. She said that she was either walking to a bus stop or standing on the sidewalk when Janet Boateng stopped to pick her up.

Ms. Boateng testified that at the time of the accident she worked in a factory from 7:00 a.m. to 4:00 p.m. She left work in her vehicle at 4:00 p.m. She testified that she recognized Ms. Owusu from the back as she walked along the sidewalk and stopped to offer her a ride. She testified that Ms. Owusu got into her vehicle with a comforter she had just purchased. Whether Ms. Owusu had a comforter is not relevant to what happened on the day of the accident, but it is relevant to the credibility of Ms. Owusu and Ms. Boateng.

The accident

Ms. Boateng and Ms. Owusu testified that they drove out to Jane Street and stopped close to a bus stop. They testified that the vehicle was struck from the rear before Ms. Owusu could remove her seat belt.

Ms. Owusu testified that she stayed on the sidewalk at the accident scene for 10 to 30 minutes while Ms. Boateng and the unidentified driver argued. She said that the two were still there when she left to telephone Ms. Boateng's husband. On the other hand, Ms. Boateng testified that she stood between the vehicles with Ms. Owusu beside her while she argued with the unidentified driver. She testified that the unidentified driver left after a couple to 10 minutes. She said the police arrived after 20 minutes.

Constable Miller recorded that he arrived at the accident scene at 4:10 p.m. At that time, the other driver had left. Constable Miller has investigated several hundred motor vehicle collisions and I find that he is experienced in investigating accidents. I find that recording the time of arrival at an accident scene is a normal part of his investigation and he likely recorded the time accurately. I prefer his evidence as to when he arrived over that of Ms. Owusu and Ms. Boateng. I find that Constable Miller arrived at the accident scene shortly after the accident. Accordingly, I do not accept the evidence of Ms. Owusu and Ms. Boateng that Ms. Boateng and the unidentified driver argued for some time before the unidentified driver left. As well, I do not accept Ms. Owusu's evidence that she was at the accident scene for 10 to 30 minutes.

Constable Miller recognized the licence plate number Ms. Boateng gave to him as one that had appeared on two different vehicles. He left the accident scene in search of the unidentified driver. He did not find the driver and returned to the accident scene about 10 minutes later.

Interview at the accident scene

Ms. Boateng testified that she told Constable Miller that Ms. Owusu was about to remove her seat belt when her vehicle was struck. Constable Miller read from his notes that Ms. Boateng's vehicle :

slowed down, pulled over and stopped and put on hazards and let her sister out of vehicle. Stopped approximately 30 seconds. [Ms. Boateng] saw vehicle approaching from behind at high rate of speed then it struck her.

Constable Miller's notes were made at the time of the investigation. Ms. Boateng's presence in the vehicle at the time of impact was relevant and Constable Miller had no reason to exclude that information. Since the information was relevant to his investigation, I expect that he would have noted Ms. Owusu's presence in the vehicle at the time of impact if Ms. Boateng had said so like she claimed. I therefore prefer Constable Miller's notes to Ms. Boateng's recollection of her conversation. I find it more likely that Ms. Boateng told Constable Miller that her "sister" got out of the vehicle before the impact.

Call to Ms. Boateng's husband

Ms. Owusu testified that she left the accident scene and walked to a small plaza where she found a telephone booth. She called Ms. Boateng's husband and talked to him about the accident and assured him that she and his wife were alright. She did not walk back to the accident scene. Instead, she took a bus home. Ms. Boateng said that because she was upset, the police took her back to her work place so that she could telephone her husband. She called him and left a message on his answering machine. She testified that her husband did not pick her up and that she had to take a bus home. She testified that while she was in the bus she saw her husband pass her on his way to the accident scene in his school bus.

The evidence on how Mr. Boateng learned of the accident was contradictory.

The Insurer maintains an after-hours answering service. The information is recorded in a "Log Report." The Log Report indicates that Mr. Boateng called the Insurer on the day of the accident at 7:17 p.m., and that his "Wife Janet involved in a hit and run accident" and that "the insured only received a message on his answering machine regarding his wife's accident."

Mr. Boateng gave a handwritten statement to the Insurer with respect to his property damage claim. He wrote:

On May 24, 1996 I wasn't with her. She had an accident. She ["she" was crossed out and replaced with "The passenger"] called me at about 5:30 p.m. I was driving a school bus and went to Jane and Langstaff where it happened. No one was there so I went home. She told me there was one person in the car with her, but I dont [sic] know who.

This evidence raises a number of irreconcilable contradictions. If the "she" in the sentence refers to his wife, then Mr. Boateng ignores the alleged conversation he had with Ms. Owusu in which she told him of the accident. If the "she" refers to Ms. Owusu, then it makes no sense for the passenger to tell him that there was an unknown passenger in the car. As well, if Ms. Owusu had a telephone conversation with Mr. Boateng shortly after the accident as she claimed, Mr. Boateng would not have written that "She told me there was one person in the car with her. ." because he would not need his wife to tell him that she had a passenger because the passenger had already given him that information. Finally, if Mr. Boateng first learned of the accident through the tape recorded message, he would not have gone to the accident scene because Ms. Boateng left a message that she was calling from work.

Analysis:

I find that Ms. Boateng left work at 4:00 p.m. on May 24, 1996 and that her vehicle was struck from the rear less than ten minutes later. Constable Miller arrived at the accident scene at 4:10 p.m., a few minutes after the unidentified driver left, and tried to find the driver. He returned to the accident scene and interviewed Ms. Boateng. Ms. Boateng told him that she stopped and let her "sister" out of the vehicle.

Ms. Owusu's evidence that she was at the accident scene for 10 to 30 minutes is inconsistent with my finding that Constable Miller arrived at the accident scene within minutes of the accident. If Ms. Owusu was at the scene for 10 to 30 minutes as she claimed, she would have seen Constable Miller.

Ms. Boateng contradicted Constable Miller and Ms. Evidente about matters they had recorded shortly after they interviewed her. Constable Miller testified that Ms. Boateng gave him no other information about her passenger. He had no reason to leave out of his report Ms. Boateng's alleged statement to him that Ms. Owusu was in the vehicle at the time of impact. Nor did Ms. Evidente have any reason to falsely record that Ms. Boateng and Ms. Owusu worked together. I accept the evidence of Constable Miller and Ms. Evidente on these matters. These contradictions lead me to question Ms. Boateng's credibility.

Ms. Owusu and Ms. Boateng contradicted each other on whether Ms. Owusu bought a comforter and where she stood during the argument between Ms. Boateng and the unidentified driver. These details are straightforward and lead me to question Ms. Owusu's evidence.

Ms. Owusu's evidence as to her telephone conversation with Mr. Boateng about the accident was contradicted by Mr. Boateng's handwritten statement and the Insurer's records of his call to the after hours service.

In view of these unexplained contradictions and inconsistences, I find it likely that Ms. Owusu was not in the vehicle at the time of the accident.

Expenses:

If the parties cannot agree on the issue of entitlement to expenses, either party may apply for an appointment for me to determine the issue.

Order:

Ms. Owusu was not a passenger in the vehicle that was involved in the accident of May 24, 1996.

July 9, 1998