Neutral Citation: 1999 ONFSCDRS 15

FSCO A98-000673

BETWEEN:

HAI T. NGUYEN

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Asfaw Seife, Arbitrator

Heard:

December 14, 1998, at the Financial Services Commission of Ontario, Toronto

Appearances:

David Pham for Ms. Nguyen

Jami Pollack for Kingsway General Insurance Company

Issue:

The Applicant, Ms. Hai T. Nguyen, sought statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule¹ She claimed that she was injured in an accident on September 11, 1997 when the car she was operating was rear-ended while stopped in traffic. Kingsway refused to pay Ms. Nguyen any benefits on the grounds that she was not injured in an accident. Kingsway took the position that Ms. Nguyen's car was not involved in a collision and that she did not sustain an impairment as a result of the use or operation of an automobile. The parties were unable to resolve their disputes through mediation, and Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue I must decide is:

Did Ms. Nguyen sustain an impairment as a result of an "accident," within the meaning of the Schedule?

Result:

Ms. Nguyen did not sustain an impairment as a result of an "accident," as the term is defined in the Schedule. Accordingly, she is not entitled to any benefits under the Schedule.

EVIDENCE AND ANALYSIS:

Section 2 of the Schedule states:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

The Schedule defines "impairment" as "a loss or abnormality of psychological, physiological or anatomical structure or function."

In this case, in order to come under the Schedule, Ms. Nguyen must prove, on a balance of probabilities, that the car she was operating on September 11, 1997 collided with another car and that, as a result, she sustained an impairment.

Ms. Nguyen testified through a Vietnamese interpreter. She did not call any other witness, nor did she file any documentary evidence. Kingsway called Mr. Ronald McCarthy, the driver of the car that Ms. Nguyen claimed rear-ended her, and Mr. Perunainar Ganeshalingham, the driver of the car that rear-ended Mr. McCarthy's car. Kingsway filed the signed statements of Ms. Nguyen, Mr. McCarthy and Mr. Ganeshalingham taken shortly after Ms. Nguyen applied for benefits. Kingsway also filed the motor vehicle collision reports completed by Ms. Nguyen and Mr. McCarthy at a Self-Reporting Centre and an appraisal report of the damage to Mr. McCarthy's vehicle.

Was Ms. Nguyen's car rear-ended?

Ms. Nguyen testified that at approximately 3:00 p.m. on September 11, 1997, she was driving her boyfriend's Lincoln Towncar west bound on Dupont Street. She was alone in the car and was wearing her seat belt. She stated that just after she passed the intersection of Dovercourt Road and Dupont Street, she stopped her car because the car in front of her stopped. While she was stopped, she heard a big bang and something striking her car. She testified that she felt only one very heavy impact and that she was thrown forward and shaken by the impact.

During cross-examination, Ms. Nguyen was adamant that she felt only one impact; however, when she was confronted with her written statement in which she said she heard two impacts, she changed her testimony and stated that she could not recall how many impacts she felt.

Ms. Nguyen initially testified that she did not see the collision and did not know what actually happened, however, upon further questioning by her representative, she stated that she had looked in her rear-view mirror just before the impact and had seen the car behind her striking her car. She changed this evidence under cross-examination, saying that she could not recall if she saw the collision before it happened.

Ms. Nguyen testified that after she regained her composure, a male bystander approached her while she was seated in her car and spoke to her about the accident. They communicated in English. She said that he asked her why she was not getting out of her car to see if it was damaged. She testified that she then got out of the car and inspected it for damages. In contrast, in her written statement, she stated that she did not get out of her car at the scene of the incident. On cross-examination, she initially adopted her written statement to be the correct evidence; however, when asked to explain the inconsistency, she changed her testimony in-chief and stated that she could not recall whether she got out of the car at the scene of the incident.

Ms. Nguyen testified that there was not much damage to her car — only scratches to the rear bumper. She was unable to say whether those scratches were caused by the accident or whether they pre-existed the accident. However, the collision report she filed the same day of the incident shows that the vehicle was inspected by a Police Officer who recorded that there was no damage to the vehicle. The Officer made a note that the licence plate was dented. Ms. Nguyen has provided no independent evidence of any damage to the vehicle.

Ms. Nguyen testified that she drove away from the scene without speaking to either driver. She stated that the bystander had written down for her the licence plate numbers of the two other cars involved in the accident, as well as his name and telephone number, on a piece of paper before she left. On cross-examination, she stated that she did not speak to the drivers because "they were busy". She did not explain the circumstances.

Mr. McCarthy denied Ms. Nguyen's claim that he rear-ended her. He testified that he was forced to stop his car abruptly because Ms. Nguyen stopped suddenly. He testified that he was able to bring his car to a safe stop approximately 10 to 15 feet behind Ms. Nguyen's car; however, in the process, he was rear-ended by Mr. Ganeshalingham. Mr. McCarthy stated that the impact with Mr. Ganeshalingham's vehicle was minor, that his car did not move more than a foot from where it was initially stopped and that it did not strike Ms. Nguyen's car. He testified that he did not sustain any injuries and the only damage to his car was a cracked rear bumper. Mr. McCarthy did not observe any damage to the rear-end of Ms. Nguyen's car. His testimony is consistent with the collision report he filed and the repair bill to his car, which show no damage to the front end of his car.

Mr. McCarthy testified that after the collision between his car and Mr. Ganeshalingham's car, Ms. Nguyen got out of her car, closely inspected the rear of her car for damages, spoke to a bystander and drove away without speaking to him or to Mr. Ganeshalingham. This is consistent with Ms. Nguyen's testimony in-chief; however, I do not find that merely inspecting her car for damages indicates that she was rear-ended. In the circumstances, I find her conduct is more consistent with hearing or seeing the collision between the two vehicles behind her and checking her own car to see if it was struck.

Mr. Ganeshalingham testified that when he saw Mr. McCarthy's car stopping, he applied his brakes and slowed down; however, he was not able to stop before striking Mr. McCarthy's car. He stated that while he could not say whether Mr. McCarthy's car was pushed into Ms. Nguyen's vehicle by the force of the impact, he was sure that when he got out of his car to inspect the damage, Mr. McCarthy's car was standing five feet behind Ms. Nguyen's.

He testified that he spoke to Mr. McCarthy, but did not observe Ms. Nguyen on the scene. As far as he knew, the only vehicles involved in the accident were his car and Mr. McCarthy's car. He stated that the damage to his car was restricted to the front lights, while Mr. McCarthy's car sustained damages only to the rear bumper.

I find this is a case where the credibility of the witnesses is central to the determination of the issue in dispute. The testimony of the witnesses called by Kingsway was diametrically opposed to that of Ms. Nguyen. Mr. Ronald McCarthy was adamant in his denial that there was a collision or any contact between his vehicle and Ms. Nguyen's.

I find Ms. Nguyen's testimony to be inconsistent, confusing and contradictory, none of which is attributable to interpretation problems. She changed her evidence several times during the course of the cross-examination. I find it significant that she was able to recall without any difficulty the relevant details in her examination-in-chief, and that she retracted her evidence only when she was confronted with her prior inconsistent statement. She has filed no documentary evidence and called no witnesses to corroborate her claim. I did not find her testimony reliable.

On the contrary, I find Mr. McCarthy and Mr. Ganeshalingham to be credible witnesses who testified in a straightforward fashion. Their testimony is internally consistent and corroborated by documentary evidence. I prefer their evidence to that of Ms. Nguyen's. Accordingly, I find that Ms. Nguyen's car was not rear-ended by Mr. McCarthy's car, as she claims.

Did Ms. Nguyen sustain an impairment?

Ms. Nguyen did not testify about any injuries she sustained as a result of the incident, other than saying that she was "shaken" by the impact of the collision. In her written statement, which was filed by Kingsway, Ms. Nguyen stated that she saw Dr. Sonny Talangbayan the same day of the incident with complaints of head, neck, back and chest pain. She stated that she had never seen this doctor before. He was recommended to her by a friend. She had a family doctor at the time, but she did not see him first because Dr. Talangbayan's office was closer to her house.

Ms. Nguyen stated that Dr. Talangbayan referred her to a physiotherapy centre, where she took treatment for several weeks. However, she did not know the name of the facility or where it was located. She said she was driven to and from the facility by an employee of the facility. She was not charged for the service.

Ms. Nguyen has filed no medical evidence and called no witnesses to support her claim that she was injured in the incident. I did not find her to be a credible witness and I cannot rely on her uncorroborated testimony. Accordingly, even if she was rear-ended, I am not satisfied that she sustained an impairment as a result of the incident.

In the result, I find that Ms. Nguyen is not entitled to any benefits under the Schedule arising from the incident of September 11, 1997 because she was not injured in an accident.

Ms. Nguyen's Application for Arbitration is dismissed.

EXPENSES:

I have found Ms. Nguyen's claim to be entirely without merit. It is clear to me that she attempted to utilize the arbitration process to force Kingsway to defend a patently unfounded claim. I find her conduct to be an abuse of process and vexatious.

Accordingly, I have exercised my discretion under subsections 282(11) and 282(11.2) of the Insurance Act to award Kingsway its arbitration expenses, and the assessment it was required to pay as a result of Ms. Nguyen's filing of the Application for Arbitration in this case.

January 21, 1999

Asfaw Seife

Arbitrator

Date