Neutral Citation: 2002 ONFSCDRS 146

FSCO A01-001564

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CORNELIA PANTAZIS

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Susan Sapin

Heard:

June 4, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

George Malakassiotis for Ms. Pantazis

Leonard Wilgus for TTC Insurance Company Limited

Issues:

The Applicant, Cornelia Pantazis, maintains that she was injured when she missed the bottom step, stumbled and fell when she alighted from a TTC bus on March 12, 2001. She applied for statutory accident benefits from TTC Insurance Company Limited ("TTC") under the Schedule,¹on the basis that she suffered an impairment as a result of an accident as defined in the Schedule. TTC maintained that Ms. Pantazis tripped and fell after she stepped off the bus, and refused to pay benefits on the basis that her fall was not directly caused by the use or operation of an automobile and therefore was not an accident as defined in the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Pantazis 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. Pantazis injured as a result of an accident as defined in section 2(1) of the Schedule?

Result:

Ms. Pantazis was injured as a result of an accident as defined in section 2(1) of the Schedule, when she fell while stepping off a TTC bus on March 12, 2001.

EVIDENCE AND ANALYSIS:

An accident is defined in subsection 2(1) of the Schedule as follows:

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 meaning of the terms accident and "directly causes" have been considered in a number of recent decisions.²

The following definition of "direct cause," found in Black's Legal Dictionary, has been widely accepted by arbitrators in determining whether an accident has occurred:

The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.

As stated by Arbitrator Novick in Petrosoniak,³

As I understand that definition, a series of events can be the direct cause of an incident, as long as there is no intervening agency or act. Consequently, if an unbroken chain of events involving the use or operation of an automobile leads to an injury, the injury can be said to have been directly "caused by" the incident."

The legal issue in this case, therefore, is simple. The parties agree that if, as she states, Ms. Pantazis missed her step as she got off the bus, and stumbled and fell as a result, then the incident falls within the definition of "accident," and she is entitled to benefits under the Schedule. If, on the other hand, she simply tripped and fell over her own feet or for some other reason, as TTC suggests, after she got off the bus, then the use or operation of the bus cannot be said to lead to her injury, and no accident has occurred.

The facts of this case, however, are not nearly as clear as the legal issue. Ms. Pantazis and the two bus drivers who testified on behalf of TTC, Ross Zambri and Nino Tucci, described the March 12, 2001 incident differently. TTC maintains that Ms. Pantazis' account is not credible. The only issue, therefore, is to determine, on the evidence before me, which party's version of events is the more likely to be accurate.

Certain facts are undisputed. Ms. Pantazis, aged 60, has taken the same Flemingdon Park bus to the Broadview subway station every day for the past eight years en route to her job in an upholstery factory. There are three bus bays in the station. The Flemingdon Park bus normally parks in the middle bay, right against the right-hand curb, to discharge passengers. If the middle bay is occupied, the bus parks against the far wall of the station, across from the first bus bay, and discharges passengers from there. On the day in question, Ross Zambri was driving the Flemingdon Park bus. It was full, containing between 42 and 50 passengers. He pulled into the station but did not park in the middle bay, because it was occupied. Instead, he parked against the far wall, across from the first bay, which was occupied by a bus driven by Nick Tucci. Mr. Zambri's bus was alongside and parallel to Mr. Tucci's bus, but a few feet ahead of it, so that passengers on Mr. Zambri's bus could exit from the front doors and walk straight across to the curb, passing directly in front of Mr. Tucci's bus as they did so. Mr. Zambri's bus was parked about 5 or 6 feet away from Mr. Tucci's bus, far enough to allow his rear doors to open.

Ms. Pantazis testified that the bottom step of the bus was too high off the pavement and consequently she lost her balance and stumbled as she stepped down. She estimated that she staggered about 8 to 10 feet before falling and hitting her shoulder on the curb. Through the Greek interpreter provided at the hearing, Ms. Pantazis described her stumble as "my feet going one in front of the other very rapidly," and illustrated this explanation with her hands. After she fell, she sat down about three feet from the curb, feeling dizzy, nauseous, confused and in shock. She explained that she was propelled forward as she stumbled because she "tried to hold onto something so as not to fall." She stated that the bus step was too high off the pavement because the driver had not lowered the step as was normally done, and had he done so, she would not have stumbled off the bottom step. Although Ms. Pantazis testified through an interpreter, I found her description of what happened clear, vivid and easy to understand.

Mr. Tucci testified that he saw Ms. Pantazis trip right in front of him, about six feet in front of his bus, as soon as she got near the curb. It was his normal practice to watch passengers get off the Flemingdon Park bus, in order to know when it was safe for him to pull out of his own bay. He stated that Ms. Pantazis "was walking pretty much normal, and it seems to me she tripped over her own feet, she fell very close to the curb...it looked like she just missed a step and tripped on her feet, the way she lunged forward." On cross-examination he explained that he was looking straight ahead, and admitted that he did not have a clear view of her feet. He agreed that, as he did not actually see her step off the Flemingdon Park bus, he would not have seen whether she started to fall from the steps of the bus. He maintained, though, that she was walking normally before she fell. He pointed out that he often saw people trip over their own feet as they hurried to catch the subway.

Mr. Tucci came out of his bus to assist Ms. Pantazis, and called transit control. A male passenger on the bus also came to her assistance, and was observed to speak with her in Greek. An ambulance arrived about 10 minutes later and took Ms. Pantazis to hospital, where X-rays revealed no fractures. She was diagnosed with bruises and sent home.

Ross Zambri, the driver of Ms. Pantazis' bus, also testified. He did not see her fall, and only saw her sitting on the ground about three feet from the curb, with Mr. Tucci and the male passenger at her side, after all of the passengers had gotten off his bus and he had a clear view. He stated that he only lowered the bottom step on the bus for seniors, and usually only when someone stepped into the bus, and that bus drivers were not allowed to lower the step at the curb itself, because it might hit the curb. He confirmed that when Ms. Pantazis got off the bus, the bottom step would be about 10 inches from the pavement, and if he were parked at the curb, the distance from bottom step to curb would be six inches. At that time of the morning, he would stop the bus at the curb about 50 per cent of the time. He felt that if Ms. Pantazis' fall had anything to do with the steps of the bus, she would not have fallen more than 2 or 3 feet from the bus. Mr. Zambri stated that he made the call for the ambulance before getting off the bus to assist Ms. Pantazis.

No other witness testified at the hearing. No objective measurements of the distances involved, in particular the actual distance of the Flemingdon Park bus from the curb, were provided, and the witnesses' estimates of the distances varied. This is unfortunate, because TTC's entire case rests on its assertion that it is simply not believable that Ms. Pantazis would stumble off the steps of the bus and come to rest as far away from it as she did; at least not without bumping into some of the other passengers. If I accept Mr. Tucci's estimates, which I find more likely to be accurate, if he was parked next to the curb, and a bus is eight feet wide (and not 10, as Mr. Zambri stated), and Mr. Zambri's bus was 5 or 6 feet away from his bus, then the Zambri bus was at least 13 feet from the curb. The witnesses seem to agree that Ms. Pantazis landed 2 or 3 feet from the curb. I find therefore, that Ms. Pantazis hit the ground between 8 and 10 feet out from the Flemingdon Park bus.

Is Ms. Pantazis telling the truth when she asserts that she misjudged the distance between the bottom step of the bus and the pavement, lost her balance and stumbled 8 to 10 feet before falling to the ground? I find that she is.

In cases where there is a conflict of evidence, or uncorroborated evidence, the real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions⁴ The testimony of a witness must measure up against the evidence as a whole. In addition, "discrepancies in testimony do not necessarily mean that the testimony must be discredited or point to fraud... Allowance must be made for fading recollections."⁵

I heard no evidence to persuade me that Ms. Pantazis testimony does not meet this test. I have no reason to doubt that each witness related the facts as he or she remembered them. However, neither Mr. Zambri nor Mr. Tucci actually saw Ms. Pantazis get off the bus, and cannot say whether or not she missed her step, or stumbled, or misjudged the distance from the bottom step to the pavement, when she stepped down. Given that Mr. Tucci conceded that he did not have a clear view of Ms. Pantazis feet and was looking straight ahead when he saw her fall, I find his opinion that she tripped over her own feet or on the pavement in front of him to be more conjecture than fact. In addition, from the way Ms. Pantazis described the rapid motion of her feet as she stumbled forward and tried to steady herself, I am not persuaded that Mr. Tucci, or any of the other passengers, for that matter, would necessarily have recognized that Ms. Pantazis was stumbling, as opposed to simply hurrying for the subway, as Mr. Tucci stated many passengers commonly did.

TTC urged me to draw an adverse inference from the fact that, although a fellow Greek-speaking passenger assisted Ms. Pantazis after she fell, this person did not appear as a witness. Given that in her statement to TTC, Ms. Pantazis pointed out that this person did not see her fall, I am not persuaded that his testimony would be relevant to the issue in dispute, and decline to draw an adverse inference. If I were to draw any adverse inference, it would be from the fact that no official report of the incident, a standard practice of the TTC in such circumstances, could be found in this case.

TTC also suggested that Ms. Pantazis was not credible because her testimony that she fell because the bus driver had not lowered the step contradicted her statement to a TTC official shortly after the accident that she did not know why she fell. That comment appears on the first page of the written statement, which was recorded in the official's handwriting. Ms. Pantazis testified that her representative read the statement to her in Greek before she signed it. I reviewed this written statement myself and note that on the third page it states, "The driver did not lower the step. This caused me to come down from a higher point and to tumble out at a greater force. If he had stopped by the sidewalk I would not have fallen and not that harder down." Contrary to TTC's allegation, I find Ms. Pantazis' testimony to be consistent with her previous statement.

Ms. Pantazis gave her testimony in a straightforward manner both in chief and on cross-examination, without evasion or prevarication. I found her to be a credible witness.

Having reviewed the testimony and the documentary evidence provided I find, on a balance of probabilities, that Ms. Pantazis' version of events is reasonable and more likely than not to be true.

EXPENSES:

I exercise my discretion to award Ms. Pantazis her expenses incurred in this preliminary issue hearing.

September 16, 2002

Susan Sapin Arbitrator

Date