careless driving because pedestrian claims my car hit her

Zatota
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Re: careless driving because pedestrian claims my car hit her

Unread post by Zatota on

It sucks that this thing has come back to life. The fact that she has switched law firms is completely irrelevant. She may have found a different firm she prefers. Also, the fact she did not show up for your trial is likely irrelevant. Of course, if a lawsuit ever goes to trial, you or your representative can question her about why she didn't show up.

Were you served with an actual claim that has been filed in either Superior Court or Small Claims Court? Or have you simply received a letter from the lawyer saying you will be sued? If you've received a claim, you have to file a defence within a given time. If you've only received a letter, you may or may not eventually receive a claim.

If she's actually filed a claim, it will contain copies of all the supporting documentation on which she is relying (e.g., a hospital discharge record).

When did the original event occur? I know you started the thread in December 2016, but that was obviously some time after it, as there had been time for it to come to trial. If this woman is going to sue you, she must file the claim within two years of the date of the alleged injury.


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Unread post by dude on

Zatota wrote:
Mon Apr 09, 2018 10:09 pm
It sucks that this thing has come back to life. The fact that she has switched law firms is completely irrelevant. She may have found a different firm she prefers. Also, the fact she did not show up for your trial is likely irrelevant. Of course, if a lawsuit ever goes to trial, you or your representative can question her about why she didn't show up.

Were you served with an actual claim that has been filed in either Superior Court or Small Claims Court? Or have you simply received a letter from the lawyer saying you will be sued? If you've received a claim, you have to file a defence within a given time. If you've only received a letter, you may or may not eventually receive a claim.

If she's actually filed a claim, it will contain copies of all the supporting documentation on which she is relying (e.g., a hospital discharge record).

When did the original event occur? I know you started the thread in December 2016, but that was obviously some time after it, as there had been time for it to come to trial. If this woman is going to sue you, she must file the claim within two years of the date of the alleged injury.
I first got a letter from her lawyer and then a few weeks later I got served with an actual claim however it did not include any documentation such as hospital discharge records. However the police report I received back when I was fighting the charges says that she was released from the hospital with no injuries.

The event occurred on April, 2, 2016 and i got served the claim for superior court of justice just this past Friday. so April, 6, 2018 but I got the letter from her lawyer saying she wants to sue about 2-3 weeks before i got served with the court papers. Any idea why they waited till the last minute?


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Unread post by QBall on

dude wrote:
Mon Apr 09, 2018 3:06 pm
Hi Everyone,

It's been a while since I have been active on this post. Hoped I would never have to deal with this case again but I just got served with papers because the lady wants to sue me for personal injuries. I already contacted my insurance and sent them the papers.

What I find weird is that the letter I got from her lawyer back when I was still fighting these charges are no longer representing her and a new law firm is now representing her case. Does that mean that her old one knew that her case was trash and they aren't going to get anything so they don't want to waste their time and so she went to a more desperate firm I suppose? I received a letter from her lawyer saying they want to sue like 2 weeks before the 2 year anniversary mark of the so called alleged accident

My insurance rep told me that I will have to go to something called discovery where both parties will be there with their lawyers and will explain their stories under oath. I hope my insurance does not pay her anything, cause i know she is trying to claim insurance fraud.

Any idea what are her chances of winning knowing she never showed up to court to convict me of my alleged traffic violations? I assume at this point that I don't have to worry much since my charges have already been withdrawn and she is really just after my insurance money.
Normally in a civil suit the onus is on the plaintiff to prove negligence. However when it comes to an accident between a vehicle and pedestrian the plaintiff does not have to prove negligence due to section 193 of the Highway Traffic Act:

193 (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

This means the onus is on your lawyer (the one hired by your insurance company) that you were not negligent or that you were not the proximate cause of her injuries. Not exactly an easy task considering there are no witnesses or video.


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Unread post by dude on

QBall wrote:
Tue Apr 10, 2018 12:49 pm

Normally in a civil suit the onus is on the plaintiff to prove negligence. However when it comes to an accident between a vehicle and pedestrian the plaintiff does not have to prove negligence due to section 193 of the Highway Traffic Act:

193 (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

This means the onus is on your lawyer (the one hired by your insurance company) that you were not negligent or that you were not the proximate cause of her injuries. Not exactly an easy task considering there are no witnesses or video.
damn, that sucks. That rule makes it way to easy for people to commit insurance fraud. Which is probably why insurance rates are soo high in Toronto


Zatota
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Unread post by Zatota on

dude wrote:
Tue Apr 10, 2018 9:02 am
I first got a letter from her lawyer and then a few weeks later I got served with an actual claim however it did not include any documentation such as hospital discharge records. However the police report I received back when I was fighting the charges says that she was released from the hospital with no injuries.

The event occurred on April, 2, 2016 and i got served the claim for superior court of justice just this past Friday. so April, 6, 2018 but I got the letter from her lawyer saying she wants to sue about 2-3 weeks before i got served with the court papers. Any idea why they waited till the last minute?
What's the date on the claim? It should appear near the top of the first page. That's the date that matters.


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Unread post by Zatota on

QBall wrote:
Tue Apr 10, 2018 12:49 pm
Normally in a civil suit the onus is on the plaintiff to prove negligence. However when it comes to an accident between a vehicle and pedestrian the plaintiff does not have to prove negligence due to section 193 of the Highway Traffic Act:

193 (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

This means the onus is on your lawyer (the one hired by your insurance company) that you were not negligent or that you were not the proximate cause of her injuries. Not exactly an easy task considering there are no witnesses or video.
That may be so, but she still has to prove she was actually injured and, if she was, that she was injured by the car. The police report says she was released from hospital without injuries. It's been two years since the alleged accident; she certainly won't be showing any signs of injury now.


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Unread post by dude on

Zatota wrote:
Wed Apr 11, 2018 7:15 am
What's the date on the claim? It should appear near the top of the first page. That's the date that matters.
There is no date on the first page. On the second page says March 29, 2018 which is 3 days before the 2 year mark.

is there a reason why they would wait to the last second?


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Unread post by Zatota on

dude wrote:
Wed Apr 11, 2018 8:57 am
There is no date on the first page. On the second page says March 29, 2018 which is 3 days before the 2 year mark.

is there a reason why they would wait to the last second?
Some people just like doing that. My guess is she wasn't really injured and figured she'd give it one more try just before the deadline. The reference to her having told police she had no injuries should work in your favour.

I did Small Claims Court representation from about 2004 to about 2007, but things have changed a lot since then. If I'd seen this type of claim then, I'd have put in the defence that she'd already admitted not to having been injured and that she failed to show up to testify in several Highway Traffic Act charges. While her lack of appearance does not, in and of itself, disqualify her claim, it does leave the door open to asking her under cross-examination why she wasn't there.


dude
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Unread post by dude on

Below is a summary of a combination of the detectives report, her statement and the officers notes who she spoke with when she reported the incident.

What I find odd is that both In her statement and the police report summary it says that she MANAGED to get HERSELF off my hood and able to record my license plate. However in the civil suit I got served last week it says that she struck down to the floor. So again it is not adding up? Was she struck to the ground or was she on my hood and get herself off?
dude wrote:
Mon Jan 23, 2017 12:49 pm

Report summary
The defendant was operating his vehicle at approximately 1:30 pm he was east bound on sunrise avenue at the intersection of Victoria park attempting to make a right turn. It was at this time that the defendants vehicle struck the victim who was a pedestrian, crossing from south to north on sunrise avenue in the marked pedestrian cross area at the intersection. The victim stated that once she was struck she ended up on the hood of the vehicle, looking the defendant right in the eyes. The victim managed to get herself off the hood of the car and quickly took note of the suspects licence before he left the scene. The victim went to the hospital as a result of the collision. She stated that she had no broken bones but suffered soft tissue damage and suffers from pain in her hips, back and neck. The defendant was interviewed at traffic services and was charged accordingly under the highway traffic act.

Pedestrians statement
"I was crossing the pedestrian line exactly crossing sunrise going south to north and he was turning right going to victoria park south. I saw him. I saw the car stopped, the light way for me, I started to go. I never thought he would go. He started the car with velocity like he was in a rush. And then he hit me I banged the car a bunch of times and I saw his face when I was on the hood. He saw me and then as soon as I got a chance I got myself off the car and then he ran away, I saw people watching. I looked at the back of his car and tried to remember his license plate. He tried to run away fast."

Officers notes.
Spoke to complainant at residence
Released from the hospital without injury
Was too in shock to stay on the phone with the police
Saw the suspect
Report created


eightfour
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Unread post by eightfour on

note to self: get dash cam

(sorry I can't contribute)


Zatota
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Unread post by Zatota on

You'll have the opportunity to cross-examine her over the inconsistencies. Of particular note, you'll be able to go after the fact that she told the officer she'd been released from hospital without injury. She'll have to show that she actually has a hospital record. You may have to summon the officer to get him to testify as to what she said.

I assume she's sued you in Small Claims Court.


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Unread post by dude on

Zatota wrote:
Thu Apr 12, 2018 6:26 pm
You'll have the opportunity to cross-examine her over the inconsistencies. Of particular note, you'll be able to go after the fact that she told the officer she'd been released from hospital without injury. She'll have to show that she actually has a hospital record. You may have to summon the officer to get him to testify as to what she said.

I assume she's sued you in Small Claims Court.
I have no idea. All it says is superior court of justice.


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Unread post by Zatota on

The court office will be shown on either the first or second page. There's probably a "cover" page that lists the parties and shows the court.


dude
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Unread post by dude on

yeah lists the parties which is me and the lady and has a stamp that says the superior court of justice and a signature with the ministry of attorney generals address. Everything else is just the technical jargon that she wants to steal my insurance money


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Unread post by argyll on

Why are you dealing with this ? Surely this is between her and your insurance company.




Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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