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.
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