D.S. v. TD Insurance Meloche Monnex, 16-000131-AABS

LAT deems spinal cord injury caused by parked car to be an “accident” for purposes of SABS.

Released June 16, 2017Full Decision [Document Bank]

The issue before the Licence Appeal Tribunal in this matter was whether the circumstances of the incident met the definition of “accident” as defined in section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “SABS”).

During the evening of September 28, 2015, the Applicant was running down a residential street when he tripped over a low retaining wall and fell headfirst into a parked vehicle on a driveway. As a result of the incident, the Applicant suffered spinal cord fractures at the C5 level, T to L1, multiple right rib fractures and facial fractures. The Applicant’s injuries caused severe paralysis throughout his body below the armpits.

The Applicant subsequently submitted an application for accident benefits to his automobile insurer, TD Insurance. The Respondent denied the application on the basis that the incident did not meet the definition of an accident as defined in the SABS.

The Tribunal ultimately decided that the incident met the definition of an accident as defined in the SABS.

The hearing involved written and oral submissions from both parties as well as oral testimony via teleconference of a third-party and biomechanical engineer expert Dr. Parkinson. There were three issues before the tribunal:

  1. whether the Applicant struck the parked vehicle;
  2. whether the incident satisfied the Purpose Test; and
  3. whether the incident satisfied the Causation Test.

The Respondent disputed whether the Applicant made contact with the parked vehicle given that no one witnessed the incident, among other reasons. However, the Tribunal found that upon considering the evidence and on a balance of probabilities, the Applicant had made contact with the parked vehicle. In particular, the Tribunal relied on the expert evidence of Dr. Parkinson who opined on the mechanism of the Applicant’s injuries. Dr. Parkinson determined that the nature of the Applicant’s injuries were consistent with his face striking the parked vehicle.

In analyzing whether the incident met the Purpose Test, the Tribunal relied on the Supreme Court of Canada decision in Amos v. Insurance Corporation of British Columbia as well as the Ontario Court of Appeal decision in Economical Mutual Insurance Co. v. Caughy. The Tribunal reaffirmed Caughy by outlining that the parking of a vehicle was an ordinary activity to which a vehicle is put and therefore, the incident satisfied the Purpose Test.

In interpreting the Causation Test, the Tribunal mainly relied on the Ontario Court of Appeal decisions in Greenhalgh v. ING Halifax Insurance Co. and Chisholm v. Liberty Mutual Insurance Group. The Tribunal found that based on the evidence, the Applicant’s injuries must have been caused by contact with the parked vehicle and as a result, the Causation Test satisfied.

Given the expert evidence, the Tribunal found that the parked vehicle was the dominant feature to the Applicant’s injuries. It was the impact with the parked vehicle which directly caused the Applicant’s injuries and therefore, the vehicle was not simply ancillary to the injuries or the location of the accident. Furthermore, the Tribunal found that there was no intervening act from the Applicant’s tripping and falling to making contact with the parked vehicle. The Tribunal found that the Applicant’s running and tripping was a precipitating event that was not separate from the chain of causation which ultimately led to the impact with the parked vehicle.

Accordingly, the Tribunal found that the Applicant did make contact with the parked vehicle and that the incident satisfied the definition of an accident.

Although the facts are relatively unique, this LAT decision will be a helpful precedent for Plaintiffs’ lawyers for disputes involving the interpretation of the term ‘accident’ under the SABS.

Read the full decision on the OTLA Document Bank

Adjudicator: Samia Makhamra

Counsel for Applicant: Ryan A. Murray and Charles Jung

Counsel for Respondent: Sandy Williams

Charles Jung
Written by

For Charles, the practice of law is about providing a client-focused service. In particular, the practice of personal injury law allows him to serve and empower individuals to overcome some of the most challenging times of their lives. His devotion to service is what motivates him to achieve the best possible outcome for his clients.

During his spare time, Charles enjoys staying active, watching sporting events and chasing his wheaten terrier around. Charles also speaks Korean fluently.