Accident occurred - motive behind staged crash not relevant

September 18, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Ikponmwonba and Intact

Date of Decision: July 24, 2017
Heard Before: Adjudicator Morris Winer

Mr. Emmanuel Ikponmwonba was injured in a car accident on August 29, 2010 and sought accident benefits from Intact, but when the parties were unable to resolve their disputes through mediation Mr. Ikponmwonba applied for arbitration at the FSCO.

Issues:

1. Was Mr. Ikponmwonba involved in a motor vehicle accident as defined by the Schedule?

Result:

1. Mr. Ikponmwonba was involved in an accident as defined by the Schedule.

The collision occurred at night on August 29, 2010, between an Oldsmobile driven by Mr. Khalid Said, exiting from the driveway with passenger Mr. Hadi Al-Kisadi, and a Chevrolet driven by Mr. Blocker with passengers Mr. Christopher Lyirhiaro, Mr. Godwin Asumadu, and Mr. Ikponmwonba. Mr. Said was charged with failing to yield from a private drive, but the charge was withdrawn after the police were shown the Kodsi Engineering Report referred to later.

Mr. Blocker and his passengers were each later charged with fraud, and Mr. Blocker was also charged with dangerous driving. However, it appears all those charges were also withdrawn. Mr. Blocker and his passengers say they were injured when they were travelling north on Victoria Park in the Chevrolet, and the Oldsmobile quickly drove west out of the driveway, and the front of the Chevrolet struck the side of the Oldsmobile. They all say Mr. Blocker did not apply his brakes or stop before the collision. Mr. Blocker, they claim, was driving at a constant speed right up to the crash. Mr. Ikponmwonba and the others in the Blocker car claimed that they were injured. They deny the presence or involvement of other cars and deny any staged collision. Mr. Ikponmwonba says he was knocked unconscious, but Mr. Blocker says no one was unconscious. Mr. Blocker and Mr. Ikponmwonba say the Oldsmobile did not stop prior to entry into Victoria Park, but Mr. Lyirhiaro is not sure. Mr. Asumadu says “I did see a car waiting at the end of the driveway.... I did see the car pull out onto Victoria Park. I think he was trying to make a south turn.... Actually, I don’t think the other car stopped at the end of the driveway before pulling out in front of us. I think he just drove thru [sic] without stopping.” The first part of Mr. Asumadu’s statement contradicts the second part.

Mr. Blocker testified that he did not know the others, but Mr. Ikponmwonba and Mr. Lyirhiaro stated that they have known Mr. Blocker for two years. Mr. Blocker also said his seat belt was buckled, but the engineer’s report shows that his seat belt was unbuckled. He could not remember if he was driving at a steady speed, if he hit the brakes, if he swerved, how many car accidents he has had, what he told the police, or if he spoke to the insurance representative. The Arbitrator found that because of these convenient memory losses and the inconsistencies in the evidence, that his version of how the crash occurred is unreliable.

Mr. Said in his statement said he was stopped in his Oldsmobile with the left turn signal flashing about to make a left turn to go south on Victoria Park Avenue. They noticed three cars stopped facing north a few car lengths to the south. They saw no reason for them to be stopped, unless perhaps there had been some mishap. The road ahead was clear and straight. The lead car flashed its lights indicating permission for Mr. Said to make his turn. He hesitated because the Oldsmobile should have been moving forward. It flashed its lights again. Mr. Said then moved west onto Victoria Park. The lead car quickly moved north into the southbound lane blocking Mr. Said’s progress. The second car, the Chevrolet driven by Mr. Blocker, accelerated quickly screeching its wheels and struck the Oldsmobile on the driver’s side. The other cars took off. The police were called. Mr. Said gave a statement to the police at the scene, and another to Intact on September 7, 2010. Mr. Al-Kisadi, the passenger in the Oldsmobile, in his statement corroborates the evidence of Mr. Said and adds that he knew at the time this was a staged collision. He saw one of the other two vehicles take off when Mr. Said approached it.

Mr. Shady Attalla is an engineer and accident reconstruction expert with impressive credentials.  He was the lead engineer in over 700 reconstructions. He provided a report of his investigation for Intact. The Arbitrator found his evidence credible. He examined the Electronic Data Recorders (EDRs, or black boxes) of the Oldsmobile and the Chevrolet. The Oldsmobile was recorded to have reached a speed of 108 kph, but he concluded that this was earlier and unrelated to this accident. The Chevrolet had stopped, and in five seconds prior to the collision, it accelerated to 29 kph and possibly higher. It did not brake; it was accelerating at the crash. This is not typical. Most drivers, he says, apply the brakes before a crash.

The Arbitrator accepted the evidence of Mr. Attalla ass contrary to that of Mr. Blocker and his passengers, who maintained that Mr. Blocker travelled at a constant speed right up to the crash. There is consistency between the evidence of Mr. Attalla with that of Mr. Said and Mr. Al-Kisadi. There is consistency between Mr. Said’s statements to the police officer at the time of the accident and his statement to the investigator months later. It is not likely that Mr. Said and Mr. Al-Kisadi could have concocted such an elaborate story so quickly at the time of the accident. This is not a criminal trial, and I am entitled to infer from the fact that Mr. Ikponmwonba, who sat through the Hearing but elected not to give evidence, would not give helpful testimony to negate a contrived collision. There was no opposing expert evidence of how the crash happened. The fact that Mr. Ikponmwonba’s statement supported the evidence of Mr. Blocker about the constant speed indicates complicity between Mr. Blocker and Mr. Ikponmwonba. The Arbitrator preferred the evidence of Mr. Attalla, Mr. Said and Mr. Al-Kisadi over that of Mr. Ikponmwonba and the occupants of the Blocker car regarding how the crash occurred.

The investigator who gathered the evidence for Intact testified to the effect that one cannot have an intentional accident in the same way that in ordinary parlance one would say “it wasn’t an accident; it was intentional”. She went on to say that the definition of “accident” in the Schedule doesn’t include a staged crash.

The Arbitrator is left to decide this fact. The word “accident” is a defined term. The words are, “accident means”, in the definition. The Schedule is an accident benefits scheme, not one based on fault or negligence. To give effect to Intact’s contention in the present case that “accident” still retains its everyday or common law meaning, the definition would have to read something like this, “‘accident’ means an accident in which....”.

There are provisions in the Schedule available to an Insurer to deny benefits and obtain repayments as a result of nefarious activities, such as sections 30(2)(c)(i)(ii), 47(1)(a) and (b), and 48(1).[15] An Insurer may pursue those remedies.  The word “accident” has a special meaning; this Hearing is to determine whether an “accident” as defined occurred.

The Arbitrator reviewed the law, and the definitions and concluded that Mr. Ikponmwonba was involved in an accident as defined by the Schedule.

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