May 12, 2020

Under Ontario insurance law, you are entitled to claim no fault accident benefits if your injuries arose through the use or operation of a motor vehicle.  Persons who are injured in a car crash, snowmobile accident, motorcycle crash, or in a pedestrian or cycling accident involving an automobile, clearly fulfill this requirement.  However, the Courts have upheld injury claims in other situations where the accident victim’s injuries were connected to the use or operation of a motor vehicle and when the involved motor vehicle was not moving, such that the accident does not fit within the normal definition of a ‘motor vehicle accident’.

Here are several cases in which someone was injured  during the use or operation of a motor vehicle and the court found that the injuries did meet the definition of an ‘accident’ under the statutory (no-fault) accident benefits guidelines.

Gilbraith v. Intact Insurance Company (2019) involves a Waterloo pedestrian who was hit in the eye by an egg thrown from a car and as a result, she lost central vision in her right eye.

The injured pedestrian was walking with a friend when someone threw an egg from a car speeding past in the opposite direction. The car did not stop and the owner was never identified.  The plaintiff filed a claim for accident benefits under the OPCF 44R Family Protection Coverage Endorsement of her father’s vehicle insurance policy (under Intact Insurance) and she also made a claim for damages against the Superintendent of Financial Services to seek mandatory uninsured automobile coverage.   Both Intact and the Superintendent brought a summary judgement motion to have her claims dismissed on the grounds that the plaintiff’s injuries were not caused, directly or indirectly, by the operation or use of a motor vehicle by an inadequately insured motorist.

The Court in Gilbraith referred to the legal terms stated in the OPCF 44R Endorsement s. 3, which provides that an “insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile”.  An ‘inadequately insured motorist’ includes drivers or owners of an unidentified or uninsured vehicle, as well as the identified owner or driver of an automobile whose financial resources are less than the limits of family protection coverage.

Another law relevant to this case is s. 193 of the Highway Traffic Act, which states that, in a pedestrian accident, there is a reverse onus on drivers to disprove negligence when a pedestrian sustains injury and damages caused by their motor vehicle.  Further, if the Superintendent cannot provide evidence to challenge the reverse onus, the unidentified driver is presumed negligent under the law.

The plaintiff asserted that, because the egg was thrown from a moving vehicle, the severity of her injury was magnified due to the kinetic energy of the egg and this was a causal factor in the severity of her injury; therefore, her damages met the requirement of being caused by a motor vehicle.  The plaintiff’s friend testified that the car was driving faster than the posted 50 km/hr speed limit, 60 to 70 km/hr, and an Injury Biomechanics Report completed by a biomechanical engineer stated that, even at 50 km/hr, the impact speed of an egg would likely be at least doubled and the risk of retinal injury increased by 1 to 49 percent over a 0 impact for the throw alone, and driving 60-70 km/hr increases the likelihood of injury to between 13 and 84 percent.

The judge dismissed the defendants’ summary judgement motions and concluded that: 1) the circumstances in this case met both the purpose test and modified causation test; 2) the plaintiff’s injuries and losses were linked to the use and operation of a motor vehicle; and 3) the driver of the car was negligent in not slowing down or stopping to eliminate the effect of throwing the egg, when he should have known that his speed would contribute to potential injury to pedestrians who might be present. 

Economical Mutual Insurance Company v. Caughy (2016) is a civil action that arose after a man tripped over a motorcycle that was parked on a campground walkway and as a result of his fall, he suffered a spinal injury. The accident occurred after dark near the accident victim’s camping trailer, during a game of tag with his daughter and friends.

The plaintiff sought accident benefits from his insurer, but Economical denied his claim arguing that the incident did not arise out of an ‘accident’, as defined under the Statutory Accident Schedule (SABS) s. 3(1).  However, the application judge disagreed and concluded that the temporary parking of the motorcycle on the campground walkway is a normal or well-known use of the motorcycle, and “the temporary parking of the motorcycle in the circumstances that evening was the dominant feature in the incident and not simply ancillary to it”.  Therefore, the incident meets the SABS definition of an accident, which is “an incident in which the use or operation of an automobile directly causes an impairment…”

Economical appealed the application judge’s finding, but the Appeal Court upheld the original decision.  Economical’s primary argument was that the application judge erred in failing to conclude that there must be an active use of the vehicle to meet the purpose test, and in the current case, the motorcycle was essentially abandoned and therefore only a setting for the incident, in the same way as anything else someone might trip over, such as a tree trunk.  The Appeal Court disagreed and asserted that the key issue in determination for the purpose test is whether the accident resulted “from the ordinary and well-known activities to which automobiles are put” but there is no requirement that the vehicle must be in active use.

 17-006380 v Liberty Insurance (2018) is an insurance dispute involving a woman who was denied accident benefits after being struck in the head by an unidentified cyclist while she was loading or unloading items out of her work vehicle.  The incident caused the woman to sustain a traumatic brain injury and psychological injuries, and she applied for accident benefits for various rehabilitation treatments and attendant care benefits.  Her insurer, Liberty, denied her benefits and argued that her loss did not meet the definition of an ‘accident’ as defined under SABS s. 3(1) and the cyclist was the direct cause of her injury.  The insurer also argued that an insurer is not required to pay benefits to an insured person who is entitled to benefits under the Workplace Safety and Insurance Act (WSIA) unless the person opted out of WSIA in order to bring a lawsuit against the responsible party.

The Adjudicator could not make a finding on Liberty’s second argument; however, the adjudicator concluded that the incident did, in fact, meet the definition of an accident and is therefore provisionally entitled to accident benefits.  

At the time of the incident, the accident victim was delivering mail in the course of her employment with Canada Post.  She was standing on the sidewalk beside her parked Canada Post vehicle and unloading or loading mail when she was unexpectedly struck in the head by a cyclist riding on the sidewalk.  She immediately lost consciousness and only awoke temporarily in the ambulance on the way to the hospital.  She subsequently suffered a seizure while in emergency. At the hospital, the woman was diagnosed with a traumatic brain injury including subdural/ subarachnoid hemorrhage, seizure, and left frontal and left temporal lobe contusion. 

It’s undisputed that the applicant was in the process of unloading or loading mail out of the vehicle at the time of the incident.  Also, although there was no physical evidence that the woman’s body made any contact with her vehicle or that the vehicle directly caused any injuries, she sustained a dislocated right shoulder and testified that she believes this injury occurred when she made contact with the passenger door as she fell.  The adjudicator found the applicant’s statements to be convincing and credible, and believed that her body came into contact with the vehicle after she was struck by the cyclist.

In order to meet the burden of establishing that the incident met the definition of ‘accident’ under SABS, the applicant must prove, on a balance of probabilities, that she met both the purpose and causation test.  On the first question, as she was retrieving mail from her vehicle, she was involved in an ordinary and well-known activity attached to a vehicle and therefore meets the purpose test.  The applicant also meets the causation test since there was a direct causal link between the vehicle and the woman’s injuries.  Use of the vehicle was a dominant feature of the incident and ‘but for’ the applicant standing and sorting mail on the passenger side of the vehicle, her injuries would not have happened.  Further, the vehicle blocked the cyclist’s view of the woman, which was another causal factor in the event, and the collision with the cyclist caused her to fall back and hit the passenger door as she fell.  On all the evidence, the adjudicator agreed with the applicant’s assertion that the entire chain of events constituted one incident and the cyclist is not an intervening act that breaks the chain of causation.  

Depending on the circumstances, even if you were not involved in a collision, you may be entitled to no fault accident benefits if you were hurt during the course of operating or using a motor vehicle.  If you were directly injured, in connection with a motor vehicle and your vehicle insurer has denied your claim, speak to an experienced accident claims lawyer at Dietrich Law and find out if you have good grounds to claim compensation.


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