Minor accident policy decried as an assist for insurance firms. But 'common math says we can't keep up' police force warns.
JOHN SCHOFIELD, The Lawyers Weekly, April 22, 2016 -- Reprinted with Permission
Personal injury lawyers say a recent decision by the Toronto Police Service to stop investigating minor car accidents at the scene increases the onus on drivers to collect information immediately after a crash and could make it more difficult for injured parties to win civil damages claims against insurance companies.
"When a police officer attends, they can usually make a determination of fault and will often have a description of the accident," said Darryl Singer with Singer Barristers Professional Corporation, a boutique civil litigation firm based in the Toronto suburb of Markham. "This new policy opens up another line of defence for insurance companies to argue the liability issue. If I can't get past the liability part for my client, I can't get any money."
But with more than 44,000 collisions involving damage last year and only about 350 traffic officers to handle them, "common math says we can't keep up," Const. Clint Stibbe told The Lawyers Weekly. And the situation is bound to get worse, he added, because the number of crashes is increasing by about 5 percent a year.
As of Sept. 1 of last year, drivers are no longer required to report a collision to police or a collision reporting centre if the total damage to the vehicles is less than $2,000 and there are no injuries. That's up from $1,000 before last September.
Under the new policy, which went into effect March 29, Toronto police will only investigate collisions at the scene if a victim requires immediate hospital treatment or the accident involves some form of criminality, drug or alcohol impairment or an unlicensed or uninsured driver. Police will also go to the scene if the crash involves a pedestrian or cyclist or damage to private, municipal or highway property. Collisions that occur or are reported between 11 p.m. and 6 a.m., when collision reporting centres are closed, will also be investigated at the scene.
Stibbe said the move is also aimed at reducing traffic delays, road congestion and secondary accidents. Drivers involved in collisions often face long waits for a police officer to arrive. Going to a collision reporting centre saves time, he added, and drivers are already doing that in 78 percent of the cases.
"It boils down to hand-holding and information exchange -- that's really what we're doing in a lot of these situations," said Stibbe. "We're devoting too much time to these minor collisions when our officers are being called to much more serious collisions."
But some personal injury lawyers say the decision could make their jobs more difficult -- and injured drivers could end up paying the price.
David Lackman with Toronto-based Gluckstein Personal Injury Lawyers underlined in an email the ability of police officers on the scene to collect evidence, make trained observations and obtain statements from drivers and independent wit-nesses. "These are matters that can have a fundamentally important bearing upon liability in a civil tort claim for damages," he noted. "Without the benefit of a police investigation, a litigant's case can unfairly become little more than a he-said-she-said credibility contest."
Collision victims whose injuries develop after the accident may have the most to lose. Even seemingly minor crashes can sometimes result in more serious physical conditions, said Lackman. "These individuals, whose injuries over time can evolve into significant impairments such as complex chronic pain syndromes, will be especially ill-served if the fault is disputed," he wrote. "And because of the new police protocol, there was no scene investigation by authorities to document the occurrence, thus providing added, although quite possibly undeserved, leverage to an insurer defending such a claim."
Not all lawyers agree, however. Susan Gunter, a partner with Dutton Brock LLP, a Toronto-based insurance litigation firm, believes the Toronto police policy change will not have a significant impact on claims. "Most information (about a collision) still comes from the people involved," she said. "The same kind of information can be given to the officer standing behind the counter at the collision reporting centre. The reality for lawyers on both sides of injury files is we can only rely on the evidence that both parties have."
Gunter said the police decision does mean, however, that drivers involved in a collision will have to be more diligent about collecting information on the scene, including the contact details for the other driver and any witnesses, the licence plate number of the other car and photos of the damage and the location. In addition, she noted, "If the accident is memorialized by reporting it to the collision centre and your insurance company, we as lawyers are in a better position."
Joseph Campisi, the founding partner of Vaughan, Ont.-based Campisi LLP Personal Injury Lawyers and an adjunct professor at Osgoode Hall Law School, echoed the importance for drivers to collect information at the crash scene and to provide details to a collision reporting centre and their insurance companies, as typically required under the insurance contract.
But Campisi said he does not believe the change will reduce the number of claims or make it more difficult to prove fault. "Although it's not ideal," he told The Lawyers Weekly, "I think the impact will be minimal. An injured party may have to put on the hat of an investigator for a potential civil claim down the line. But if you're injured and those injuries become serious, you're still going to consult with a personal injury lawyer, whether police attended the scene or not."
REPRINTED WITH PERMISSION
JOHN SCHOFIELD , The Lawyers Weekly, Legal News, April 22, 2016, Page 2
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