Neutral Citation: 2001 ONFSCDRS 65

FSCO A00-000015

BETWEEN:

ZUBER Y. ABDI

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE HEARING

Before:

Joyce Miller

Heard:

November 24, 25 and 26, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Brian Donnelly for Mr. Abdi

Jeffrey A. Gauze for TTC Insurance Company Limited

The Applicant, Zuber Y. Abdi, claims that he was injured in a motor vehicle accident on March 26, 1999. He applied for accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC denied Mr. Abdi accident benefits on the basis that an accident as defined in subsection 2(1) of the Schedule had not occured. The parties were unable to resolve their disputes through mediation, and Mr. Abdi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Was Mr. Abdi involved in an accident as defined in subsection 2(1) of the Schedule?

Result:

Mr. Abdi was involved in an accident as defined in subsection 2(1) of the Schedule.

Mr. Abdi's Evidence:

Mr. Abdi is 33 years old. He was born in Ethiopia and emigrated to Canada in 1989. He testified that Amharic is his mother tongue and that he is only 45 percent fluent in English.

Mr. Abdi testified that on March 26, 1999, at about 3:15 p.m., he went to have something to eat in a restaurant on St. Clair Avenue West near Old Weston Road in Toronto. He stated that about 4:00 p.m. he left the restaurant and walked along St. Clair to Old Weston Road. He intended to take the southbound bus to Dundas Street West and then take the subway to his final destination, his home in High Park.

Mr. Abdi testified that he waited at the bus stop for about 10 minutes before a bus came. He stated that when the bus arrived, a woman ahead of him, entered the bus. Mr. Abdi said that his view of the driver was blocked because the woman ahead of him stopped to talk to the driver for a moment. Mr. Abdi presumed that the driver's view of him was also obscured.

Mr. Abdi testified that as he placed his right leg on the first step of the bus, the bus door closed. Mr. Abdi stated that then everything happened very quickly. The bus moved. He was knocked off balance and he struck the right side of his head and his right shoulder against the steel bus pole on the street. He testified that after he fell he did not remember when his leg was extricated out of the door or whether the bus dragged him along the ground. Mr. Abdi stated that his scalp on the right side of his head swelled up after he hit the pole. However, he did not have any bruises on any part of his body, nor were his clothes damaged.

Mr. Abdi testified that as soon as he fell, the bus came to a stop and the bus driver exited the bus. Mr. Abdi testified that he remembered asking the bus driver, "How could you do this?" Mr. Abdi stated that he tried to stand up but he felt very dizzy. He stated that he remembered that some people spoke to him, but it felt like a dream. He stated that he did not know what they asked or what they said. He testified that he was examined by a paramedic and taken to the hospital by ambulance. At the hospital, he gave the following signed statement to the police:

I come, I get into the bus, while I was on the door, so the door closed and the bus moved. When the bus moved I hit the pole. After that I fell down, after that I was waiting for ambulance. Right side of head hit the pole. I feel pain on my knees and felt dizzy.

A few days after the incident, on March 30, 1999, Mr. Abdi went to see his family doctor, Dr. M. Dutczak. Dr. Dutczak's clinical notes of that date state: "March 26 attempted to get into TTC vehicle — trapped with leg squeezed by the door crashed against utility pole." His examination revealed: "neck upper back right trapezius right arm and right leg tender... normal neurological exam however disorientation memory lapses, concentration problems – post concussion syndrome."

Dr. Dutczak prescribed Robaxacet and physiotherapy. He also referred Mr. Abdi for an assessment by a neurologist.

On May 26, 1999, the TTC interviewed Mr. Abdi with the assistance of an Amharic interpreter retained by the TTC. In this signed statement, Mr. Abdi described the incident as follows:

...I had been waiting for about ten minutes before the bus arrived. I can't remember how may people boarded ahead of me. When the last person ahead of me boarded I was about a metre behind. It was a medium built woman standing beside the driver. When she stepped on the bottom step the doors were open. I was probably less than a metre behind to her right on the sidewalk but between the doorway and on the right side. I could not see the driver because the lady was standing between me and the driver. When she reached the fare box I was on the bottom step. I did not see the driver. When I stepped on the bottom step with my right foot the doors were still open. I was not holding on to anything. I don't remember how long the doors remained open after I stepped on the bottom step. The doors closed with me facing the driver. I can't remember if my head was inside or outside the bus. I attempted to grab something with my right hand but I failed. At that point the bus took off. My right foot was still inside the bus. My left foot was still outside. The bus pulled off but I don't remember how far it travelled before it stopped. When it stopped it was some slight distance away from the stop. When the bus pulled away the right side of my body including my head struck the pole. I fell on the sidewalk. I can't remember how far from the curb. The bus stopped. The driver stopped the bus and came back to me. I was lying on my back. I don't remember after that. He was asking me something. An ambulance arrived and I was taken to St. Joseph's Hospital Emergency. I don't remember what I told them at the hospital. ...

The Bus Driver's Evidence:

Mr. Winston Gentles, who at the time of the incident had been a bus driver with the TTC for 18 years, testified that on March 26, 1999, he was driving the No. 41 bus route from Steeles to Keele Station. Mr. Gentles stated that the bus was travelling south on Old Weston Road when he pulled up to the bus stop on the northwest corner of Old Weston Road and St. Clair, north of the bus pole.

Mr. Gentles testified that he opened the door to let patrons off, and then "loaded up." He did not remember how many people got on, but he stated that there was more than one. He stated that he did not know how many people were on the bus, but he remembered that not all the seats were taken and that no one was standing. He said he had a clear view out the right side of the bus. When confronted on cross-examination with the TTC inspector's report which stated that there were 70 passengers on the bus, more than the seating capacity of the bus, Mr. Gentles stated that the inspector's report was wrong.

Mr. Gentles testified that after the passengers had got on and passed the white line at the entrance of the bus he looked over his right shoulder towards the doors and closed the doors. He eased his foot off the brake and looked through his mirror on the side where the front doors were situated. When he looked through the mirror, he observed someone running along the side of the bus near the back doors wearing a "trench coat flapping in the wind."

Mr. Gentles testified that it was his impression that the individual was trying to get on the bus. According to TTC protocol, if it is safe to do so, when a bus driver sees someone running for the bus after the bus doors have closed, the driver could stop the bus to pick up the passenger.

Mr. Gentles stated that the bus had only rolled a few feet south of the bus pole when he stopped the bus. He stated that when he stopped the bus he was able to see through his curb side mirror that the individual who was running for the bus had run right into the steel pole and had fallen down.

Mr. Gentles testified that he then applied the "holding brakes" and activated his four-way flashers. Mr. Gentles stated that he exited the bus and asked the individual [Mr. Abdi] if he was okay. Mr. Gentles stated that Mr. Abdi got up, but a bystander told him to lie down and Mr. Abdi moved over to the stoop of a building and sat down. Mr. Gentles stated that he asked Mr. Abdi if he needed any assistance, and he said "yes." Mr. Gentles then went to his bus and pushed the yellow button to communicate the incident to the TTC Transit Control. Mr. Gentles testified that he told Transit Control that a patron was running for a bus and had collided with a bus pole. He requested that an ambulance be sent.

Mr. Gentles testified that the first person on the scene after he called the TTC Transit Control was the TTC Area Supervisor, Mr. Ronald O'Hara; the police were next on the scene and then the ambulance came. Mr. Gentles stated that he told the supervisor what had occurred and then the supervisor spoke to Mr. Abdi.

Mr. Gentles testified that the police took a written statement from him and then they spoke to Mr. Abdi at the scene. He also stated that both he and Mr. O'Hara first spoke to the paramedic before the paramedic spoke to Mr. Abdi.

The statement that Mr. Gentles gave the police was as follows:

I stopped to service the stop, after serving the stop, I closed the door, glanced through the blind spot mirror I seen this object trying to get between lamp post and the bus. I swing away from the post (TTC stop) male ran into the post and fell to the ground. And I stopped to see what happened. Male was on the ground holding his head. [Emphasis added]

The statement that Mr. Gentles gave to the TTC supervisor at the scene of the incident was as follows:

I was south bound on old Weston Rd at St Clair. I stop and service that stop close the door ease my foot off brake and checking my mirro (sic) and blind spot then I notice a shadow between bus and the pole or bus stop. I pull slightly to my left and stop open the door I see this person on the ground he told me he was trying to catch the bus and he colide (sic) in the steel pole he hit the right side of his head in the pole.

Note no time whatsoever was he at the door. The bus has move (sic) about 3 ft ahead of the pole and he was north of the pole and also I want you to note there is only about one foot clearance between bus and pole [Emphasis added]

Mr. Gentles testified that at the scene his supervisor, Mr. O'Hara, told him that Mr. Abdi had a different version of the story, namely, that Mr. Abdi's foot was in the entrance of the bus when it closed and that the bus had dragged him. Mr. Gentles testified that he said this was impossible because if that were the case then Mr. Abdi "would have been seriously injured."

During his testimony Mr. Gentles produced, for the first time, his personal notes of the incident. Mr. Gentles testified that he made these notes about one and a half hours after the incident. These notes state:

I service bus stop at old Weston and St. Clair close the door starting to rold (sic) forward I heck my open side mirro (sic) I saw a person runing (sic) from the rear of bus I clear the bus stop and I stop by this (sic) the individual ran into the steel pole of witch (sic) the bus stop was place on he hit his head on the pole and fell to the sidewalk he got up and a standerby (sic) say to him don't get up lay down so he sit back on the sidewalk when the police arive (sic) and spoke to him and say you look all right his reply was how you know some thing is not wrong up here pointing to his head he was ask what he want to do I want to go to the Hosp (sic) to check my head out.

No time did his body make contact with the Bus.

Under cross-examination, Mr. Gentles was asked why he had followed procedures in the TTC protocol for reporting an occurrence except for the requirement that he get the name of any witnesses to the occurrence. Mr. Gentles testified that he did not ask for any witness names, because there had been no collision. In his view this was not an accident.

The Paramedic's Evidence:

Mr. Bill Schell works for Toronto Emergency Medical Services (E.M.S. ). He has been a paramedic for 25 years. He stated that he responded to the call on March 26, 1999. Mr. Schell stated that he has responded to hundreds of calls since that date and that he vaguely remembered the call. He stated that he only remembers the bus driver, but did not remember Mr. Abdi. He stated that, according to his report, Mr. Abdi's motor skills, verbal responses and orientation as to where he was were normal. His report further states that "... patient conscious, stable, alert/oriented, eyes ... Pt. ran for bus, ran into steel pole." [Emphasis added]

Mr. Schell stated that the comment "ran for a bus, ran into steel pole" in his report would most likely come from the patient, although he did not specifically recall that in this case whether or not it came from Mr. Abdi. Mr. Schell also stated that he did not recall whether Mr. Abdi spoke with an accent or whether he had difficulty understanding Mr. Abdi. Mr. Schell testified that he took Mr. Abdi to the St. Joseph's Emergency Department. At the hospital he gave the emergency nurse a copy of his report, which included the comment "ran for a bus, ran into steel pole." As well, he gave her a verbal report of the incident.

The Police Constable's Evidence:

P.C. David Zackrias, a Police Constable since April 1998, testified that on March 26, 1999 at 16:26 hours he received a dispatched radio call that came across on his computer screen. He stated that information provided by the dispatcher was that a "male jumped and injured his head while getting on the bus." P.C. Zackrias testified that when there was an incident that involved a bus the TTC required that the police attend for an "occurrence report."

P.C. Zackrias testified that the TTC Transit Control had called the police at 16:08 hours. The police call, however, was not dispatched until 16:26 hours because the call had come in during a change of shift.

Contrary to what Mr. Gentles had stated, P.C. Zackrias testified that when he arrived at the scene, the ambulance had already left with Mr. Abdi. P.C. Zackrias stated that he took a signed statement from the driver as to what had occurred. P.C. Zackrias stated that he then went to the hospital and took a signed statement from Mr. Abdi.

P.C. Zackrias testified that he read Mr. Abdi's statement to him and that Mr. Abdi re-read it and then signed it.

After the statement was taken, P.C. Zackrias recorded in his notebook "Spoke to both parties conflicting stories. In my opinion, I believe the driver - the victim was very unsure about his story."

Under cross-examination, P.C. Zackrias was asked why he would not choose to further investigate the conflicting stories — especially since Mr. Abdi's story was consistent with the police dispatch which he had recorded in his note pad, that is,"male jumped and injured his head while getting on the bus".

P.C. Zackrias conceded, under cross-examination, that Mr. Abdi's version of what happened was consistent with the initial police dispatch report.

St. Joseph's Health Centre Records:

The St. Joseph's records include the emergency nurse's notes recorded at 16:55 hours when Mr. Abdi was brought to the hospital. It states: "Was on a bus which moved unexpectedly. Pt. hit head on pole in bus". The emergency doctor's notes recorded at 18:25 hours states: "Pt. lost balance & fell against a pole in TTC vehicle". [Emphasis added]

On May 10, 1999, Mr. Abdi had a follow-up appointment at St. Joseph's Health Center with a neurologist, Dr. Peacock. Dr. Peacock's clinical notes for May 10, 1999 states: "Ethiopian 32 [male] Hit head/ 26 Mar 99/." When Dr. Peacock dictated his Consultation Record, he stated: "The patient is a 32-year-old Ethiopian man who suffered a mild head injury when he struck his head on a pole of a TTC bus which started rather suddenly."

Submissions:

Mr. Abdi's Submissions

Mr. Abdi submitted that the injuries he received were as a result of the doors of the bus closing on his foot causing him to fall. He submitted that this incident falls within the definition of "accident" in subsection 2(1) of the Schedule.

Mr. Abdi submitted that the bus driver's version of what happened was contradictory, self- serving and not credible. Mr. Abdi submitted that I should draw an adverse inference from the fact that the TTC Inspector, Mr. O'Hara, although scheduled to be a witness for the TTC, was not called as a witness at the hearing. As well, Mr. Abdi asked that I draw an adverse inference from the fact that the TTC did not produce the TTC's Transit Control record of what the bus driver told Transit Control when he informed them of the incident.

Mr. Abdi submitted that it is reasonable and plausible to accept that the information in the St. Joseph's records was as a result of misinformation given to the paramedic by the bus driver and then, unwittingly, passed on by the paramedic to the emergency nurse. This misinformation was then picked up by the emergency doctor's notes and the neurologist's notes.

TTC's Submissions

TTC submitted that Mr. Abdi's story is not credible or plausible. TTC submitted that the true account of the incident is the TTC bus driver's version, namely, that Mr. Abdi struck his head against the TTC bus pole while running to catch the No. 41 bus.

TTC submitted that the manner in which Mr. Abdi described how he incurred his injuries, namely, that he had his right foot on the step of the bus and he was lifting his left foot in the air to step on the bus when the door closed on his right leg, was not plausible. TTC submitted that it is physically impossible for the door to close only on his right leg while Mr. Abdi's left leg was in the air.

His body would have had to precede his legs into the bus. As well, Mr. Abdi should have had more visible signs of bruising and torn clothes if he had been dragged by a bus with his foot caught in the doors.

TTC submitted that the St. Joseph's records that state Mr. Abdi hit his head on a pole in a TTC bus, contradict Mr. Abdi's evidence and support its position that Mr. Abdi is not a credible witness.

ANALYSIS AND FINDINGS:

In order to qualify for benefits Mr. Abdi must first establish that, on a balance of probabilities, he was injured as a result of an accident as defined in subsection 2(1) of the Schedule. Subsection 2(1) provides that:

"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; [Emphasis added]

For the following reasons I find that Mr. Abdi has discharged his burden.

I find that Mr. Gentles' evidence of what happened on March 26, 1999 is contradictory. There is a significant difference in what he told the TTC supervisor and the police constable at the time of the incident, i.e., that he saw a "shadow" or "object" between the bus and the bus pole or lamp post, and his evidence at the hearing, which was that he saw Mr. Abdi running from the rear of the bus along the side of the bus and hit his head against the bus pole.

Mr. Gentles did not provide any plausible or reasonable explanation for the inconsistency.

I do not accept Mr. Gentles' explanation for omitting to follow the TTC procedural requirement of getting the names of witnesses to the incident. Mr. Gentles stated he did not follow this procedure because there was no collision and, therefore, in his view no accident had occurred. Mr. Gentles had in fact followed all of the TTC procedural requirements for when an accident occurs, except for getting the names of witnesses. I note that in his statement to the TTC Inspector and in his own notes, Mr. Gentles made a point of stating that at "No time did his [Mr. Abdi's] body make contact with the Bus," as if he anticipated this would be Mr. Abdi's version of the incident. I accept Mr. Abdi's submission that it is more likely than not that Mr. Gentles omitted getting the names of any witnesses to protect his version of the story.

I also give little weight to Mr. Gentles' explanation that the TTC supervisor, Mr. O'Hara, had wrongly recorded the number of passengers on the bus to be 70, instead of 40. If there had in fact been 70 passengers on the bus then, contrary to Mr. Gentles' testimony, it is most likely that Mr. Gentles' view on the right side would have been blocked. This would support Mr. Abdi's evidence that Mr. Gentles' view of him getting on the bus was blocked .

Mr. O'Hara was listed as a witness for this hearing, but the TTC did not present him as a witness. No explanation was given as to why he was not called. At the commencement of the hearing, Mr. Abdi's counsel submitted that an adverse inference should be drawn from the fact that Mr. O'Hara was not called as a witness. I agree with this submission.

Given what appears to be contradictory and self-serving statements on the part of Mr. Gentles, the testimony of Mr. O'Hara, who was the first person to appear at the scene of the incident, was important. It would have been helpful to hear from Mr. O'Hara with respect to Mr. Gentles' explanations regarding the number of passengers on the bus, and why he did not follow the TTC protocol of getting the names of witnesses to the March 26, 1999 incident. As well, it would have been helpful to have heard Mr. O'Hara's testimony regarding what Mr. Abdi told him had happened at the time of the incident. The fact that Mr. O'Hara was not called as a witness to corroborate Mr. Gentles' testimony reinforces my decision to give little weight to Mr. Gentles' version of what happened.

In contrast, I give greater weight to Mr. Abdi's version of what happened. Although there were a number of inconsistencies in Mr. Abdi's evidence, I find that Mr. Abdi's explanations for the discrepancies to be plausible and credible.

Mr. Abdi's statement to the police that he injured his head while trying to get on the bus is not only consistent with the police dispatch report, but it is also consistent with what he told his family doctor on March 30, 1999, the physiotherapist on April 5, 1999 and the TTC Inspector on May 26, 1999. It is also consistent with the testimony that Mr. Abdi presented at the hearing.

I give little weight to P.C. Zackrias' view that he preferred the bus driver's version of the incident. I find that it was not reasonable for P.C. Zackrias to have concluded, without any supporting evidence, that the bus driver's version was the more believable one, when in fact Mr. Abdi's version was consistent with the initial police dispatch report.

I also find that the version of the incident recorded in the St. Joseph's records should not be attributed to Mr. Abdi.

The paramedic made it very clear in his testimony that he did not recall the incident of March 26, 1999 and that he was relying totally on his notes and what his normal practice is in such cases. He stated that he did not remember Mr. Abdi from the incident, but he did recognize the bus driver when he saw him at the hearing. However, he stated that he did not recall the content of any conversation he may have had with the bus driver on March 26, 1999.

As noted above, the bus driver testified that when the paramedic arrived at the scene he first spoke to him before he approached Mr. Abdi. From the evidence it appears that at the time he spoke to the paramedic, he already knew from the TTC Inspector that Mr. Abdi was telling another version of the incident. I agree with Mr. Abdi's submission that it is plausible that the bus driver could have told the paramedic that Mr. Abdi had bumped his head on the TTC pole while running to catch the bus to shore up his version. As a result, the paramedic's report ended up with the bus driver's version of the incident.

According to the paramedic's evidence, he verbally transmitted the details of the incident to the emergency nurse at 16:55 hours. As well, he also gave her a copy of his report. The version the nurse recorded in the records of St. Joseph Health Centre had a little variation — the pole Mr. Abdi allegedly bumped into was now positioned in the bus.

Mr. Abdi submitted that it would make no sense for him to have told the nurse at 16:55 that he hit his head on a pole in the bus and five minutes later to have given the police a signed statement of his version of what happened that was consistent with the original dispatch report of the police, something he could not have known about. I agree.

Mr. Abdi is not fluent in English. At the hearing, Mr. Abdi provided his testimony with the assistance of an interpreter in the Amharic language and relied on simultaneous interpretation of the proceedings when he was not testifying. At the time of the incident on March 26, 1999, Mr. Abdi was at a distinct disadvantage. Everyone he came into contact with, that is, the bus driver, the TTC supervisor, the paramedic, the police, and the medical personnel at St. Joseph's were professionals in their fields and fluent in the English language. In my view, in this particular circumstance, it would have been easy for Mr. Abdi not to realize that the wrong information was being passed on to the paramedic and to the medical personnel at St. Joseph's.

Accordingly, I find that it is more likely than not that the paramedic was misinformed by the bus driver and then he unwittingly transmitted this information to the nurse, who did not accurately record his report into the hospital records.

As a result, this misinformation was picked up by other medical personnel, the emergency doctor and Dr. Peacock.² Accordingly, I find that the information in the St. Joseph's records of how Mr. Abdi came to injure his head should not be attributed to Mr. Abdi.

TTC submitted that the manner in which Mr. Abdi described how he sustained his injuries, was not plausible. TTC submitted that it is physically impossible for the door to close only on Mr. Abdi's right leg while his left leg was in the air.

While I accept this to be a valid argument, nevertheless, I find that it is more likely than not that in some manner, and maybe not as precisely as Mr. Abdi has described it, Mr. Abdi was injured while attempting to board the bus. As noted above, this is consistent with the police dispatch report — which stated that Mr. Abdi "... injured his head while getting on the bus." As well, Mr. Abdi's injury to the right side of his head is consistent with his version that he lost his balance as the door closed and he fell towards the right side and hit his head on the pole. If one were to accept Mr. Gentles' story that he saw an individual running alongside the bus, it is more likely that Mr. Abdi's impact with the steel pole would have been to the front of his face and forehead.

TTC submitted that Mr. Abdi's version was not credible because he should have had more visible signs of bruising and torn clothes. Mr. Abdi submitted that the reason he did not have more bruises on his body or torn clothes is consistent with the fact that the bus had not accelerated very much, nor moved any significant distance after the doors closed. I agree.

Mr. Gentles' evidence of the incident was that when he closed the doors of the bus, he released his foot off the brake and the bus began to roll forward, then he immediately stopped the bus when he noticed something on the right side. In my view, the fact that Mr. Gentles did not accelerate the bus after closing the doors is a plausible explanation as to why Mr. Abdi did not incur more bruises to his body and torn clothes

For all of these reasons I find that Mr. Abdi's version of the incident to be credible and plausible. I, therefore, find that Mr. Abdi's injuries were a direct result of the normal use and operation of a motor vehicle. Accordingly, I find that on March 26, 1999 Mr. Abdi was involved in a motor vehicle accident as defined by subsection 2(1) of the Schedule.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses.

May 2, 2001

Joyce Miller Arbitrator

Date