Proving Causation And Liability In Toronto Pedestrian Injury Cases

It’s a legal issue that many Toronto pedestrian accident victims don’t always consider: how to prove to an insurance company that the insured driver was in fact responsible for the pedestrian injury.

A few years back, the Financial Services Commission of Ontario, in the decision of Melchiorre v. Wawanesa Mutual Insurance Co. , was tasked with considering just such an issue when a widow made a claim for benefits and expenses under the Insurance Act, claiming that her husband sustained fatal injuries as a pedestrian when he was stricken by an automobile driven by the insured.

The insurer denied payments on the grounds that the applicant was unable to prove that the injured pedestrian was actually hit by the car or that he died as a direct result of injuries sustained in the car accident. The problem lay in the fact that the deceased pedestrian was no longer around to offer his version of events. His advanced age - he was 87 years old - also became a factor as the insurer suggested that the deceased’s fatal head injury might have come about from a fall unrelated to any pedestrian accident.

Though the driver, at the scene of the accident, was initially equivocal when offering his account to the police, he later testified that he had simply come upon the scene and stopped his vehicle when he came upon the sight of an elderly man falling backwards to the pavement just in front of his car. Though there was an eyewitness who offered his own version of events at the scene of the accident, the witness did not respond to a subpoena, and so, he was unavailable to be cross-examined by the defence.

How, then, would the Commission be able to determine the essential issue of causation and liability for the pedestrian injury, particularly in light of the absence of strong, reliable eyewitnesses? As the insurance company argued, the onus in this pedestrian case lay with the widow applying for accident benefits and expenses.

The result, in the end, hung on the issue of the driver’s credibility, along with the police reports at the scene and the documented medical evidence setting out the nature of the pedestrian injuries. The Commission concluded that the insured driver’s testimony was both self-serving and lacking in credibility. Moreover, it concluded that the elderly pedestrian’s fall and consequently fatal injuries were directly caused by the driver’s vehicle, whether or not the vehicle actually made impact with the accident victim.

The Commission concluded that the insurer did not conduct a proper investigation of the facts, and on that basis, was therefore liable to pay the applicant a special award as a consequence of unreasonably denying her payments. As the Commission noted:

First, it appears that the Insurer applied the wrong test. The adjuster seemed to be preoccupied with whether or not the van "struck" [the pedestrian]. Although it was important to try to ascertain the answer to this question, the analysis should not have stopped there. The real question is whether the van was the direct cause of an impairment that led to the death of [the pedestrian]. In order to be the direct cause, the van need not be the only cause or even the most immediate cause and there need not necessarily have been any physical contact between the vehicle and [the pedestrian].

Second, at the time the adjuster made her decision, she had an official police record indicating that the van had knocked [the pedestrian] to the ground. The adjuster chose to ignore this…This does not appear to me to be a careful investigation into and weighing of the available information.

Third, … the adjuster was aware that there likely existed relevant ambulance, hospital, coroner and police records (including photographs and witness statements). The adjuster made her decision without obtaining this information. At no time during the hearing did she ever suggest that this was due to any lack of co-operation on the part of the Applicants.

In the end, the Commission’s decision turned on a consideration of the nature of the insurance company’s investigation into the facts of the pedestrian accident. The Commission required that the insurer should embark upon its investigation in the utmost good faith, and that, if it were to unreasonably deny or delay payments to which the applicant was entitled, the insurance company would be liable to pay a special award of damages to the applicant.

In pedestrian accident cases such as that outlined above, where there might be a dearth of reliable witnesses available to testify, a personal injury lawyer should be careful to document all the contemporary police and medical reports from the scene of the accident, so as to ensure that an insurance company is conducting a good faith investigation, weighing all the relevant facts leading up to the pedestrian injury in question.