Volume. 5 Issue. 48- November 3, 2021
This week the Tribunal wrestles with two incidents that were ultimately found to be staged for the Applicants’ benefit. The first considers a “remarkable” narrative wherein a spontaneous combustion of a cell phone triggered the eventual incident.
The second largely centered around conclusions based upon the “black boxes” of both vehicles alleged to have been in an accident.
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Accident Triggered by Spontaneously Combusting Cell Phone?
he Case of the Exploding Cellphone – In Amare v Economical (19-004635), Amare provided a “remarkable” narrative surrounding how he came to injure himself. He related that while driving, his cell phone spontaneously exploded in his pocket. He then immediately pulled over and was injured striking his head while hastily exiting the vehicle.
For his part, Amare was able to secure a report confirming the version of the phone spontaneously exploding. However both Economical and the manufacturer secured similar reports to wit the phone had in fact been tampered with, and the Tribunal found on a balance of probabilities there to be insufficient evidence to support Amare’s version. While this alone does not preclude a finding of an “accident”, the credibility of Amare was impacted as it contradicted a fundamental component of his submissions.
The Tribunal however found that the incident described did meet the direct cause test, as the injury was sustained while hitting his head, not from the spontaneously combusting phone. At issue though remained whether the incident occurred as alleged. The Tribunal found that inconsistent accounts of the incident and injuries “give rise to a legitimate question about his credibility and whether the incident occurred as he alleges, or if at all.” The Tribunal further noted that it was “unable to conclude what occurred during the incident.” While the various inconsistencies individually would have little impact on credibility, the totality of the issues, in context of the investigative reports above “causes the Applicant’s claims to warrant additional scrutiny.”
The “inconsistent narrative” was enough to require corroborating evidence. However, Amare failed to produce his only first hand witness (his “passenger”) or to produce the requested cell phone records, which would have served to establish the location of Amare at the time of the incident. The Tribunal drew an adverse inference from both failings. Taken together with the various issues with his narrative this was found “fatal to his credibility and, ultimately, his claim.”
Whereas the incident described met the definition of an “accident”, the Tribunal concluded that the “accident” was staged for Amare’s benefit, and staged accidents are excluded from the “accident” definition.
Black Boxes Contradict Applicant’s Narrative
Black Box Tales – in Cahns v Intact (19-010591). Cahns contended that his vehicle was struck in a T-bone fashion to the rear section of his car by a fast moving vehicle exiting a private driveway. Unfortunately for Cahns however (who opted not to appear at the hearing) the “black boxes” for both vehicles told a rather different tale.
The “striking” vehicle’s black box confirmed that it was in fact in park five seconds before it was hit (and possibly while it was hit), no acceleration pedal or brake pedal was applied just prior to contact with the other vehicle, and the damage to the vehicle was consistent with damages that would be incurred while the vehicle was parked.
The black box of Cahns’ vehicle contained no events, meaning there was no impact severe enough to record. The conclusion reached in Intact’s engineering report was that the damage to both vehicles did not occur through an accident as reported by Cahns or his passenger, with the “striking” vehicle being parked at impact and Cahns’ black box not registering an impact. The Tribunal concluded that Cahns’ statements related to the “accident” were unreliable, and that “on a balance of probabilities that the subject MVA was a staged accident and is therefore not an accident under s.3(1) of the Schedule.”
As a result, the Tribunal concluded that “the applicant wilfully misrepresented material facts when he described the events leading up to the MVA, how the collision happened, the injuries he sustained…” Further, “I believe the purpose of the applicant’s misrepresentation was to receive benefits from the insurer to which he was not properly entitled.” He was thusly order to repay the benefits owed, although the actual amount is not entirely clear as there are two decidedly different amounts stated.
Related LAT inFORMER Issue(s):
Staged Accident Repayment & A Newly Detached Home Creates ‘Accident’
CAT Response Not ‘Rebuttal’ + 3 Staged Collisions
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