How Inconsistencies in a Plaintiff's Claim can result in a dismissal

On August 30, 2003, Mike Zaravellas, who was employed as a TTC bus driver at the time, allegedly injured his left hand when the doors of a TTC streetcar accidentally closed onto his hands. In" Zaravellas v Armstrong, 2016, Zaravellas filed a claim against the TTC driver and the Toronto Transit Commission for negligence and sought damages for his injury. This was the first of multiple accusations of negligence that the plaintiff alleged against the City of Toronto.

The plaintiff testified that while he was getting on a bus after his shift was over, the TTC driver suddenly closed the doors. In order to protect himself and keep the doors open, the plaintiff extended his arms outward in front of him, an action that caused immediate pain to the back of his left hand. The plaintiff noted that the protocol for TTC bus drivers is to look at the doors of the bus when passengers are boarding and continue to do so until the doors are closed. According to the plaintiff, the bus driver did not do this and was instead looking through the front window of the bus. Only when the plaintiff's hands prevented the door from closing, did the driver turn his head in the plaintiff's direction and then inform him that he had not seen him. The plaintiff said nothing to the driver about his injury, although he alleges that his left hand was painful and swollen. The next day his hand was still swollen, so he reported the injury to his supervisor, before visiting Centenary Health Centre. Upon examination, the hospital found no fracture to the plaintiff's hand and diagnosed him with a possible soft tissue injury. " A second X-ray performed at a later date through a referral by the plaintiff's physician confirmed that there were no fractures, but likely soft tissue damage. The defendant TTC driver denied the plaintiff's version of events, insisting that his attention remained on the entrance doors throughout and also, the plaintiff was not visible when he switched to close the doors but suddenly appeared. The defendant added that as soon as he saw the plaintiff, he turned the switch to re-open the doors and never saw the plaintiff move his hands in the manner he claimed. The driver also asked the plaintiff if he was okay, as a courtesy. The key issue then for the judge to decide was whether or not the driver was negligent in his handling of the bus doors and whether or not that negligence caused the plaintiff to be injured. For a number of reasons, the judge did not believe the plaintiff's claims and as a result, sided with the defendant and dismissed the plaintiff's action. The reasons for the judge's decision are as follows:
  1. The judge did not find the plaintiff to be a very credible or convincing witness, and the latter's testimony was often contradicted by facts. " The plaintiff was perceived to be evasive, argumentative and continuously failed to answer key questions, claiming to lack memory of the facts and events he was being questioned about.

  1. Based on the evidence of an engineer, as well as video recordings of TTC doors, the judge concluded that the plaintiff's hands could not have been hit given the position of his body, based on the version of events he gave.

  2. The judge noted that there were many inconsistencies in the plaintiff's claims, particularly in relation to his injured hand. At the trial, the plaintiff said the pain and swelling began almost immediately after he was struck by the bus doors. However, the incident report he filed a few days after for his employers, quoted him as saying he felt pain when he woke up the next morning. The plaintiff's visit to the hospital produced no evidence of a bone fracture; only a small scratch on his wrist was evident. However, the plaintiff was insistent about experiencing continuous pain in his left hand. Another significant inconsistency in the plaintiff's claims is that he told the defendant's medical expert during an examination that the injury occurred when he was exiting the bus, which completely contradicted his entire original version of events.

  3. On October 29, 2003, two months following the incident, the plaintiff visited a hospital complaining of pain, but he referred to his right hand (rather than the left, which was allegedly injured) at least five times to an attendant who made enquiries while performing a visual inspection. The same error occurred on March 20, 2005, when the plaintiff withdrew from a TTC driving test, complaining of pain to his left hand. He went to the hospital and while record notes show he complained about pain to his left hand, an X-Ray of his right hand was taken. The most damning evidence against the plaintiff with regard to his claims of continuous pain in his left hand were video recordings made in 2006 and 2009 when the defendant had the plaintiff surveilled without his knowledge. Both recordings show the plaintiff exhibiting actions with his left hand that were inconsistent with the pain he claimed to suffer. Most notably, the 2009 video showed the plaintiff carrying three full grocery bags in his left hand with no apparent difficulty. The video footage follows the plaintiff walking some distance to his apartment building, where in an effort to unlock the door, he transferred all five bags to his left hand, without any issues.

  4. The judge was unimpressed with the plaintiff's attitude in regard to the TTC's numerous attempts to help him return to work, which were all met with resistance. The plaintiff objected to the "graduated return to work" programme and he complained of pain while on Crash Gate duties, which included wrapping up pizzas for sale for customers. As a result, the judge concluded that despite the plaintiff's claim that driving a TTC bus was his dream job, he was not interested in returning to work and was only seeking compensation with the hope of not working.

  5. The testimony of the defendant TTC driver was in notable contrast to the plaintiff's testimony. " The former was perceived to be truthful, logical and consistent, and since the only witnesses to the accident were the plaintiff and the defendant, their individual credibility was extremely important in making a determination of fault.

  6. The plaintiff's own medical experts had difficulty arriving at a diagnosis based on the plaintiff's description of his symptoms and could not state with any certainty that the plaintiff suffered an injury which precluded the use of his left hand. One expert, a surgeon who was a specialist in diagnosing hand injuries, found no physical explanation for the patient's pain and testified that the plaintiff's descriptions of pain are inconsistent with him being able to put his hand in his pocket, lean on his hand or use his hand in the observed manner.

For these reasons, the judge rejected the plaintiff's account of the accident and ruled that the defendant driver and the TTC were not negligent in causing injury to the plaintiff. " The judge's contention in regards to the plaintiff's claims was that based on all the evidence, his claim of continuous pain was not believable and not supported by the evidence, including medical examinations which indicated that he suffered nothing more than a scratch to his wrist.

After failing at, and quitting several non-driving assignments provided by his employer, the plaintiff was fired by the TTC. " In late 2005, the plaintiff was given the opportunity to return to work and asked to complete a driving test. However, during the test, the plaintiff claimed that he was experiencing severe pain in his left hand and thus could not continue. Following this failure, the plaintiff allegedly experienced depression symptoms and sought treatment from a psychiatrist who prescribed anti-depressant medication. A few months later, the plaintiff fell in the shower and broke his wrist, which he blamed on the effects of the medication, which he said ultimately stemmed from the 2003 TTC accident. In a second action in" Zaravellas," the plaintiff claimed that the City of Toronto was liable for his slip and fall injury. However, as in the first action, the judge had concerns with the plaintiff's credibility; the plaintiff claimed that he did not remember many details of his health history that a normal person would typically not have forgotten, such as whether or not he experienced headaches, had anxiety attacks or took antidepressant medication prior to his first accident.

In considering the evidence for the slip and fall, the judge noted that the plaintiff's reliability and truthfulness was even more important when weighing psychiatric opinion evidence which largely depends on the plaintiff's self-reporting of symptoms and the facts. " However, even if was determined that the plaintiff's psychological illness was aggravated or caused by the TTC accident, the judge concluded that "it would fail to satisfy the causation requirement on the basis that the injuries were too remote" and therefore, found no liability on the part of the City of Toronto or the driver.

On December 23, 2007, the plaintiff had a third accident for which he held the City of Toronto liable. In the wake of cleanup from a severe snowstorm, while walking to the bus stop, the plaintiff alleged that he stepped into a hole in ice that had not yet been cleared from the sidewalk, lost his balance and fell, injuring his wrist and elbow. The defendant charged that the City of Toronto was negligent in causing his injury.

In determining whether the City is liable for a slip, trip and fall on a sidewalk, a defendant must show that there was gross negligence on the part of the City, which can also be defined as "˜very great negligence' with respect to a breach of duty to the public. Again, the judge concluded that the City was not guilty of negligence and thus not liable, as there was no evidence that the roads were icy: temperatures remained above freezing in the 24 hours before the man's fall and City patrols spotted no occurrences of icy roads. " Also, the defendant chose to wear the same rubber-soled shoes he wore all year, which implies that he himself saw no reason to believe the roads were dangerous or icy.

Every day, many Canadian's are injured in motor vehicle collisions, falls and other accidents, often resulting from another party's negligence. In these cases, injury compensation provides the necessary financial aide to allow accident victims to have access to rehabilitation treatment, compensation for loss of income and other financial support that is necessary to their recovery. " However, it is important for claimants to be truthful and forthcoming in describing the extent of their injury and its impact on their lives. Inconsistencies and falsehoods will not further a claim; rather, such actions give the impression that the claimant is lying or exaggerating his/her injuries and as such, severely undermines the credibility of a plaintiff and their case for compensation. You can call us at " 844-RASTIN1 or " email


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