Neutral Citation: 2002 ONFSCDRS 12

FSCO A00-001038

BETWEEN:

HONG THI ANH TRIEU

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

K. Julaine Palmer

Heard:

December 20, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David Pham for Ms. Trieu

R. Lee Akazaki for Non-Marine Underwriters, Mbrs. of Lloyd's

Ms. Trieu claims she was injured in a motor vehicle accident on September 3, 1999. She applied for statutory accident benefits from Non-Marine Underwriters, Members of Lloyd's ("Lloyd's"), payable under the Schedule.¹ Since Lloyd's does not believe Ms. Trieu was involved in an accident on September 3, 1999, it refused to pay her any statutory accident benefits. The parties were unable to resolve their disputes through mediation, and Ms. Trieu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Was Ms. Trieu involved in an accident on September 3, 1999?

Ms. Trieu was involved in an accident.

This preliminary issue is about credibility. Was Ms. Trieu involved in an automobile accident on September 3, 1999? Ms. Trieu testified she was a passenger in the back seat of a minivan which was hit on the side by a jeep while stopped at an intersection.

Lloyd's admits that a collision took place in the early evening of September 3, 1999 on Spadina Avenue in Toronto, at or near the intersection with Dundas. As part of Lloyd's case, it filed a statement from the driver of the other vehicle which was involved. However, Lloyd's submits Ms. Trieu was not in the minivan when the accident occurred. Lloyd's theory is that only two people were in the vehicle at the time—Ms. Trieu's sister, Loan, and Loan's fiancé, Tam.

In order to prove her case, Ms. Trieu testified about the accident. Her sister, Loan, and Mr. Tam Duong also testified. Mr. Duong, who was the driver of the vehicle in which Ms. Trieu and her sister were passengers, testified that he exchanged information with the other driver and reported the accident at a Collision Reporting Centre on September 7, 1999.

Lloyd's did not produce the driver of the other vehicle as a witness at the hearing. A process server testified that he had attended at the driver's address or spoken with members of his family on four occasions in August and December 2001. He testified that his information was that the driver was working in northern British Columbia but would return about Christmas 2001. Another investigator testified that he had taken a written statement from the driver five months after the accident on February 7, 2000 at his parents' home. That statement was filed as an exhibit.

Lloyd's also attempted to call as a witness a polygraph operator who had examined Ms. Trieu on July 11, 2000, ten months after the accident. The polygraph operator and a Vietnamese interpreter were present on that occasion. Lloyd's filed several pages from a transcript made of the polygraph examination and an audiotape of that portion of the interview, without objection from Ms. Trieu. Lloyd's wanted the polygraph operator to testify about his impression of Ms. Trieu's understanding of questions put to her in English about the time of day when the accident occurred. The Applicant objected to the polygraph operator testifying about Ms. Trieu's understanding of the English language. In the absence of any evidence of the polygraph operator's expertise in language skill assessment, I declined to hear any oral evidence from the polygraph operator on that issue.

Summary of the Evidence:

Ms. Trieu testified through the interpreter that when the accident happened she was with her sister and Tam Duong on September 3, 1999 enroute to Chinatown to buy groceries, prior to going on a long trip the next day. She was not sure whether the accident took place in the afternoon or evening. It was still sunny outside. She testified that Mr. Duong and her sister picked her up from her apartment just prior to the accident. She stated that their vehicle was stopped at a red light when a vehicle tried to get into the left turn lane next to them, was unsuccessful, and hit the side of the minivan and bounced off. She thought that perhaps the other vehicle was caught on the street car tracks. Ms. Trieu did not get out of the minivan after the accident. She testified she held her head, which had hit the side of the minivan, and laid down on the middle seat of the van behind the driver's seat. After the accident, Mr. Duong drove Ms. Trieu home— they never went on the trip.

Ms. Trieu was not sure where the group was headed the next day. It was the Labour Day weekend. They intended to set out Saturday and the accident took place Friday. The group was to include Mr. Duong, her sister, herself, two children, and the sisters' mother. They could visit the Trieu sisters' aunt in Montreal, Mr. Duong's family in Kitchener or go elsewhere. Ms. Trieu, herself, was not interested in fishing. Ms. Trieu testified that her mother was looking after her young daughter at the time of the accident.

Ms. Loan Trieu, the Applicant's older sister, testified through the interpreter that three people were in the minivan at the time of the accident. She confirmed Ms. Hong Trieu's evidence about how the accident happened. She testified that the other driver never came to the minivan, but that Mr. Duong got out to get his information. Ms. Trieu confirmed that after the accident they dropped Hong Trieu off back at her apartment. In cross-examination Ms. Trieu testified that at the time of the accident the plan for the weekend was to go to Kitchener, but this was not definite. In addition, they could go fishing. She confirmed that they would bring a tent, cookstove and other camping supplies and that six people would be going in the van.

Mr. Tam Duong, the driver of the vehicle in which the Trieu sisters were passengers, testified in English. He is the lease manager of a car dealership. He testified that he had rented the minivan for the long weekend in September 1999. He planned to go camping and fishing with the Trieu sisters, Loan's son, Hong's daughter, and the children's grandmother. He testified that he and Loan picked up Hong to get some food in Chinatown. He testified that as his vehicle was stopped at the intersection of Spadina with Dundas, a "big truck" tried to pass him on the left and smacked into the minivan on the left side and banged it three or four times. The truck had to reverse to get out of the way. Mr. Duong testified that the rear bumper, corner and whole left side of the minivan were damaged. He stated that the driver of the other vehicle did not come to their vehicle to see if anyone was hurt. Mr. Duong testified he paid over $1,500 for the damage to the minivan. He explained that the car rental agency told him he had to pay, even though the accident was not his fault. He testified he telephoned the other driver three or four times to talk to him about paying for the repairs, but he was told off and told to do whatever he wanted.

Mr. Duong testified that he telephoned the minivan's owner after the weekend. After the accident, he had driven the minivan that weekend to visit his sister in Kitchener. He testified that plans for the weekend had included going to Montreal and fishing and camping, with fishing and camping the first priority. He could not remember when he changed his mind about not going to Montreal, whether it was before or after the accident. Mr. Duong testified that he has camping equipment like a tent, camp stove, lights, and charcoal barbecue.

Mr. Aalmin Jinnah, an employee of Chariots of Hire car rentals, testified that he prepared the rental agreement for Mr. Duong and dropped off the car at ABM body shop for Mr. Duong between 2:00 and 3:00 p.m. on September 3, 1999. Mr. Jinnah testified he thought Mr. Duong wanted the minivan because he was getting married and had mentioned he needed the space in the back of the van. Mr. Jinnah testified that he first heard about the accident on the Tuesday morning, which would be September 7, 1999. He told Mr. Duong to file a police report on the collision since this had not been done. Mr. Jinnah took photographs of the damage to the vehicle a few days after the accident, which were filed. In his testimony he referred to the photographs and noted a slight scratch down the driver's side passenger door and a dent called a "pinch" on the rear of the van. He also saw a tire mark on the rear left bumper.

Mr. Jinnah was shocked to see exhibit 3, a copy of the invoice Mr. Duong says he paid for repairs to the minivan. Mr. Jinnah said that he never authorized such repairs. He had talked to the owner of ABM body shop, who he believed was Mr. Duong's partner. The owner told Mr. Jinnah that ABM would fix the minivan as his partner had made a mistake and Chariots of Hire did not further pursue the repairs with an insurance company.

Mr. Jinnah testified he felt there was $200 to $300 damage at the most to the minivan. No parts would be required, just body filler and paint. In his view, there was no damage to the vehicle suspension, no wheel cover to replace (he saw it inside the rear of the van), and no realignment of the door required. A replacement rear bumper was not required. Mr. Jinnah testified the paint on the minivan was a single tone, not two-tone paint and a grey bumper, not a painted one as indicated on the invoice. To remove the mark from the bumper, Mr. Jinnah would have simply rubbed it with varsol. He testified that in the photographs one could observe, if one looked closely, that a police collision reporting sticker had been affixed.

Final Submissions and Findings:

The burden of proving an accident occurred is on Ms. Trieu. She believes she has discharged this burden by her own testimony and that of the two other people in the minivan, her sister and the sister's fiancé. She has presented a copy of a collision reporting centre report and a copy of the invoice the driver says he paid to repair the vehicle. She also filed copies of statements given by herself, her sister and Mr. Duong in early October 1999, about a month after the accident. She submits that I should place no weight whatever on the statement of the driver of the other vehicle who did not testify in this proceeding, even though the hearing was adjourned for several months to give the Insurer the opportunity of securing his attendance. In fact, Ms. Trieu submits I should draw an adverse inference against the Insurer because the driver did not appear.

The insurance company is suspicious about Ms. Trieu's claim. It says that many small things do not add up. It says that the other driver never saw Ms. Trieu in the vehicle, because she was not there, not because she laid down after the accident. It says Ms. Trieu should be clear on the time of day when the accident happened if she was involved. Lloyd's submits that Ms. Trieu changed her story in the summer of 2000 and placed the time of the accident between 3:00 and 4:00 p.m. instead of 6:30 or 6:45 p.m., a significant difference in time, because she had no true recollection of any accident. The insurance company alleges that the variations in the story of going fishing, camping, or to Montreal or Kitchener for a trip to visit relatives do not have the ring of truth to them. It says that none of the witnesses who testified on behalf of Ms. Trieu are independent, disinterested witnesses, because they all filed claims for accident benefits alleging they sustained an injury in the accident. Lloyd's also submits that the small amount of physical damage to the minivan contradicts the stories of the Applicant and her witnesses as to how the impact occurred. It submits that it would have taken a significant impact to move the minivan sideways at an angle variously reported as 20 to 45 degrees, but the physical evidence shows only a single scratch and a pinch.

Unfortunately, in the search for the truth relating to Ms. Trieu's involvement in this accident, I did not hear testimony from the driver of the other vehicle involved. That driver has a different version than Mr. Duong and the Trieu sisters of how the accident happened that would suggest the accident was Mr. Duong's fault, as he was allegedly reversing his vehicle at the time. Lloyd's failed to present any evidence of any attempts made to locate the other driver in British Columbia, even though the hearing had been adjourned for six months at its request to allow for that witness's attendance. Neither did I hear from the independent witness listed on the collision report, who was not referred to at all by either party. Nor did I hear the testimony of the passenger in the other vehicle, who was named in the other driver's statement. (Lloyd's made submissions that it had been unable to locate the passenger, but called no evidence of its efforts on this point.) Neither did I receive a copy of the collision report that the driver of the other vehicle filed when contacted by the police in October 1999.

I did hear testimony from Mr. Jinnah, a representative of the car rental agency that owned the minivan. He saw the damage to the vehicle, after the accident, and took photographs of it. He considered the damage to be minor and was confident the bodyshop could easily repair it. On the issue of who was present in the vehicle at the time of the accident, however, he could shed no light.

Among the documents filed for this hearing were reports from a physician Ms. Trieu consulted on September 9, 1999, six days after this accident, and a chiropractor who treated her in September and October 1999. The physician diagnosed a whiplash-associated disorder—grade II, cervical, dorsal and lumbo-sacral sprain, shoulder sprain, headaches and fatigue.

Conclusion:

I am unable to place much weight on the statement taken five months after the accident from the driver of the Jeep that allegedly came into collision with the minivan. Firstly, I did not have the benefit of that driver's oral testimony, to weigh his responses on the crucial question of the occupants of the minivan, the attention he paid to any occupants and his opportunity to observe someone lying on the middle seat. Secondly, I am not even convinced that the "Charlo Rousseau" or "Rosseau" (there are two different spellings in the document), who gave the statement, is the same person as Hugo H. Rousseu noted on the collision report, although the birth dates appear to coincide. The investigator testified that "Charlo Rousseau" did not show him his driver's licence when he took the statement—the investigator thought he had seen his passport, but he was not sure, and he had not noted the number.

I did not hear from the other two potential witnesses in this matter, the passenger in the Jeep, and the independent witness noted on the collision report.

However, I did hear from the Applicant, her sister, and the driver of the minivan, her sister's fiancé. These three witnesses presently live together in a home in Mississauga and cannot be considered either independent witnesses or indifferent to the outcome of the hearing. They did, however, each affirm that they would tell the truth about this issue under pain of criminal prosecution for false testimony. Their lack of firm plans for the long weekend in September 1999 may indicate they were more spontaneous than organized, or that Ms. Trieu was indifferent as to their ultimate destination, but, in my view, this evidence is only tangentially relevant to finding that Ms. Trieu was a passenger in the vehicle at the time of the accident. My view is similar regarding Ms. Trieu's inconsistent statements about the time of the accident. In my opinion, Ms. Trieu's uncertainty of the time when she testified at the hearing and her discrepant memory of the time of day the accident occurred, when interviewed in the summer of 2000, some ten months after the accident, does not necessarily indicate she is lying about being involved in any accident.

The standard of proof to which Ms. Trieu is to be held in this case is not a high one. She only has to convince me that it is more likely than not that she was involved in an accident. Although Lloyd's has raised some questions about her presence in the vehicle at the time of the accident, in my view Ms. Trieu has met her burden to establish, on a balance of probabilities, that she was involved in an accident on September 3, 1999 on Spadina Road near Dundas Street in Toronto as a passenger in a minivan that came into collision with a jeep.

To meet the definition of "accident" in the Schedule requires some harm to an insured person or some damage to a medical or dental device he or she owns. An accident, in this case, means "an incident in which the use or operation of an automobile directly causes an impairment." I find that the accident caused an impairment to Ms. Trieu, that is a "loss or abnormality of a psychological, physiological or anatomical structure or function," in that I accept her testimony that the impact caused her to bump her head, resulting in head pain.

This preliminary issue hearing in no way considered Ms. Trieu's entitlement to caregiver benefits and other medical and rehabilitation benefits she claims. The issue of entitlement to those benefits will be the subject of the hearing set for April 22 to 24, 2002.

EXPENSES:

The issue of expenses of the preliminary issue hearing was not raised by either party at the hearing. I find that the issue of the expenses of this hearing should be deferred to the discretion of the arbitrator hearing the main issues. If the parties resolve the main issues in dispute, but cannot agree on expenses of this hearing, they may apply to reopen this hearing for submissions on the issue of the expenses of the preliminary issue hearing.

January 11, 2002

K. Julaine Palmer Arbitrator

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