REPORTER ACCIDENT BENEFIT. In this issue: and the Role of an Impact in Motor Vehicle Insurance Coverage

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1 ACCIDENT BENEFIT REPORTER Volume 13 Issue 1 Spring 2012 Pedestrians, Cyclists, and the Role of an Impact in Motor Vehicle Insurance Coverage In this issue: Pedestrians, Cyclists, and the Role of an Impact in Motor Vehicle Insurance Coverage Insurer Must Accept AB Application Filed 2 Years After the Accident Leonard H. Kunka Partner Thomson, Rogers Carr Hatch Associate Thomson, Rogers With the near tropical winter most Ontarians experienced this year, the number of cyclists on our roads in January and February was higher than ever. This naturally led to a rise in the number of accidents involving bicycles and motor vehicles. Despite the obvious coverage available to an injured pedestrian or cyclist who has been struck by a motor vehicle, the question emerges as to what recourse is available for a pedestrian or cyclist who is injured when there is no actual impact or physical contact with the motor vehicle alleged to have contributed to the incident. A common example of such a situation is a cyclist who crashes and sustains injuries while swerving to avoid being struck by a motor vehicle. The case law has developed around this question significantly with respect to Statutory Accident Benefits coverage. Despite the development of the law, an injured party in the situation described above can still expect the responding accident benefit insurer to initially deny that their injuries were caused by an accident, as defined in section 3(1) of the Statutory Accident Benefits Schedule (SABS). The Schedule states: Accident means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. Expert Costs Under Scrutiny Trauma Resource Directory ACCIDENT BENEFIT REPORTER THOMSON, ROGERS Continued on page 2 A Thomson, Rogers Publication Volume 13 Issue 1 May 2012 ISSN

2 Pedestrians, Cyclists, and the Role of an Impact in Motor Vehicle Insurance Coverage Continued from cover story Injuries involving pedestrians or cyclists and motor vehicles are often considered catastrophic, which enable the injured party to receive enhanced benefits under the Schedule. With potentially enhanced benefits available, the determination of whether the claimant was injured as a result of an accident often becomes a high-stakes debate. The case of Seale v. Belair Insurance Co., 1 a 2003 decision from the Ontario Financial Services Commission sheds light on this issue. In Seale, the claimant s vehicle had lost traction and became stuck in an icy intersection. The claimant shut off her engine and exited her vehicle with the intention of trying to push the vehicle. Before the claimant started to push her vehicle, it began to slide on the road and eventually came to rest in a snow bank. After thirty seconds elapsed, the claimant then walked toward her vehicle and slipped and fell on the icy road, sustaining injuries. The Arbitrator concluded that the injury was sustained while the van was being used or operated. The Arbitrator concluded that a determination of whether use or operation of the vehicle directly caused the injuries involved a consideration of intervening acts or forces, and whether the loss was a normal and reasonable risk of motoring. Importantly, the Arbitrator stated that the definition of accident does not require the injury to occur because the insured has physical contact with the vehicle. 2 The Ontario Financial Services Commission s decision of Petrosoniak v. Security National Insurance Co., 3 is also helpful. In Petrosoniak, a cyclist was injured when his bicycle crashed on the pavement after it had driven over a patch of hydraulic oil spilled by a motor vehicle on the road. In assessing the word direct in the definition of accident, the Arbitrator referred to the term direct cause which he defined as the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started, and working actively from a new and independent source. The Arbitrator found that the cyclist was indeed injured in an accident and entitled to accident benefits. The Insurer conceded that the definition of accident does not go as far as to require the injured party to come into direct contact with a vehicle. The Arbitrator stated: In the instant case, the [cyclist] was injured as a direct result of coming into contact with a wet patch of pavement. I have found that the fluid on the pavement was released by a motor vehicle. While the fact that the fluid fell onto the roadway, as opposed to falling directly onto Mr. Petrosoniak, may have constituted an intermediate step in the process which ultimately led to his injuries, it does not, in my view, constitute an intervening act or a force working actively from a new and independent source. 4 Importantly, the Petrosoniak definition of direct cause has been applied by the Ontario Court of Appeal in the 2002 decision of Chisholm v. Liberty Mutual Group. 5 A review of the relevant Ontario Financial Services Commission s decisions reveals the following propositions which have been used in determining what constitutes an accident pursuant to section 3(1) of the Schedule. These propositions include: 1. The use or operation of a motor vehicle must directly cause the impairment A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act. 7 2

3 3. Direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim s injuries, and one of the direct causes is the use or operation of a motor vehicle The motor vehicle need not come into direct physical contact with the victim The role played by the motor vehicle must be more than just the location, opportunity or motive of the incident The motor vehicle must be a dominant feature in the incident and not ancillary to it. 11 These cases demonstrate that a cyclist or pedestrian who is injured, but who was not in physical contact with a motor vehicle, will still be entitled to Statutory Accident Benefits, if the facts and circumstances of their case qualify under the direct cause or dominant feature propositions contained in these decisions. It is therefore critical for pedestrians and cyclists who have been injured in an accident to act quickly to retain counsel, as the initial investigation into the accident (particularly where there is no impact or contact with a motor vehicle) will largely determine whether they will later be entitled to accident benefits. A flawed motor vehicle accident report, the failure of counsel to obtain immediate witness statements or to conduct a proper investigation, or the general delay of the injured party in obtaining counsel can all have a deleterious impact on a claimant s likelihood of having their incident considered an accident within the meaning of the Schedule. n n n 1 [2003] O.F.S.C.I.D. No Ibid. at para [1998] O.I.C.D. No Supra note 3 at paras [2002] O.J. No Supra note 3. ACCIDENT BENEFIT REPORTER THOMSON, ROGERS 7 Ibid. 8 TTC Insurance Company v. Correia (FSCO P , July 16, 2001). 9 Supra note [2003] O.F.S.C.I.D. No. 82. at para Ibid. 3

4 Stacey L. Stevens PARTNER Thomson, Rogers Insurer must accept AB application filed 2 years after the accident Mrs. R. was hurt in a car accident on July 17, She only placed State Farm on notice of her claim on December 17, 2007, following an episode of severe back pain. The notice was received by State Farm well outside the requirements of section 31 of the SABS which obliges an insured to give notice of any claim within 7 days following the collision or as soon as practicable. At the time of the collision, Mrs. R. was providing 24/7 attendant care to her husband who had sustained a severe brain injury in a 2001 motor vehicle accident. As a result, Mrs. R. developed depression, anxiety and sleep disruption to the extent that, by the time of her own collision in 2005, she was caring for her husband without any regard for her own well-being. Mrs. R. testified that she did not have the mental/emotional wherewithal to pursue an Accident Benefits claim or treatment for her own injuries until after her husband s claims had settled. State Farm denied Mrs. R. s claim for benefits by relying on the 7-day notice requirement. In response, Mrs. R. argued that State Farm could not deny her benefits as she had a reasonable explanation (under section 31 of the SABS) for her failure to notify State Farm of her claim within 7 days after the accident. In her decision, Arbitrator Alves identifies the following principles concerning the reasonable explanation requirement under section 31: The explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. The onus is on the insured person to establish a reasonable explanation. Ignorance of the law alone is not a reasonable explanation. The test of reasonable explanation is a subjective and objective test that should take into account the personal characteristics and a reasonable person standard. The lack of prejudice to the insurer does not make an explanation automatically reasonable. An assessment of reasonableness includes: a balancing of prejudice to the insurer, hardship to the claimant, and whether it is equitable to relieve against the consequences of the failure to comply within the time limit. Mrs. R. was an extremely credible witness at the hearing. She gave detailed evidence of her husband s condition and the impact it had on her and her son. She filed the clinical notes and records of her treating psychologist and an IE assessor s report which concluded that her emotional state was causally related to the care she provided to her husband. State Farm did not adduce any evidence or make submissions to establish that it suffered prejudice as a result of Mrs. R. s delay. The Arbitrator accepted that prejudice is inherent given the passage of time. However, in this case, Arbitrator Alves acknowledged that while a 2-year 5-month delay was significant, it was not enough to establish prejudice. 4

5 Arbitrator Alves found Mrs. R. s explanation for the delay both credible and reasonable and allowed Mrs. R. to proceed with her claim. The decision in S.R. v. State Farm F.S.C.O. A is applicable in all instances where an insured has failed to meet a time limit imposed by the SABS except the 2-year limitation period for mediating and litigating denials. It demonstrates that even where there has been a lengthy delay, the insured is not automatically disentitled to the benefit. While the burden is on the insured to prove that a reasonable explanation exists, it is clear from this decision the existence of collateral evidence, such as detailed record keeping by the treatment team is very important to the insured s success. n n n Expert Costs Under Scrutiny Overcharging experts beware no longer will the courts simply rubber stamp disbursements claimable against a losing party. Darcy Merkur Partner Thomson, Rogers While the courts have historically been relatively assertive in assessing legal fees, and in making sure that the time spent and the fees charged by counsel were reasonable; they have historically been relatively passive in their approach to assessable disbursements. Presumably the courts avoided challenging disbursements since the disbursements claimed were reimbursement for the amounts actually spent in good faith, and the courts were reluctant to second guess the benefiter of a successful lawyer s expenses. In Hamfler v Ontario Inc., 2011 ONSC 3331 (S.C.J.), a May 31, 2011 decision that has recently gained popularity with defence counsel, Justice Mark Edwards of the Ontario Superior Court of Justice, took issue with the magnitude of disbursements incurred by plaintiff s counsel in a personal injury claim where a jury awarded the plaintiff just under $200,000 for damages and where the disbursements claimed were approximately $100,000. ACCIDENT BENEFIT REPORTER THOMSON, ROGERS Continued on page 6 5

6 Expert Costs Under Scrutiny Continued from page 5 While stating that the fundamental question for the court is whether the amount claimed in disbursements is fair and reasonable, Justice Edwards outlined some questions that the court may consider in assessing disbursements, namely: 1) Did the evidence of the expert make a contribution to the case, and was it relevant to the issues? 2) Was the evidence of marginal value or was it crucial to the ultimate outcome at trial? 3) Was the cost of the expert or experts disproportionate to the economic value of the issue at risk? 4) Was the evidence of the expert duplicated by other experts called by the same party? Was the report of the expert overkill or did it provide the court with the necessary tools to properly conduct its assessment of a material issue? The Hamfler decision raises major challenges for plaintiffs personal injury counsel. The impact of an overcharging expert may be felt by personal injury plaintiffs and their counsel since the retaining lawyer remains responsible for all for the bills sent by his or her experts. Counsel has historically had little input into the amount charged by an expert on a file, other than being able to avoid using that expert again in the future. Moreover, in the face of the still fairly new expert report rules in Ontario requiring expert reports to be extremely comprehensive; experts have been encouraged by counsel to spend the necessary time to write comprehensive reports, and will certainly argue that they should not now be criticized for spending too much time doing their work. One challenge for counsel arising from Justice Edwards decision in Hamfler has to do with establishing the reasonableness of the amounts charged by the expert. Specifically, Justice Edwards expressed his view that counsel has an obligation to put before the court information to allow the court to assess the fairness and reasonableness of a disbursement, such as the amount of time spent by the expert in preparing the report and in attending at trial, and the hourly rate of the expert. When it comes to the issue of time spent by an expert, the primary means for counsel to establish the time spent by an expert is to require and produce detailed invoicing by their experts. While many experts already do so, some important experts, like treating expert physicians, aren t accustomed to doing so and may well rebel against the concept of documenting their time. Justice Edwards also makes it clear that the court should not just rubber stamp the expert s hourly rate. Instead, Justice Edwards encourages counsel to provide the court with any available information 6

7 from an expert s governing body as to appropriate hourly rates, or providing comparable hourly rates of other experts in the same field. Justice Edwards further mentions that it would be useful to know whether the expert had to cancel part or all of their patient appointments to attend in court, presumably to compare the fee charged to the lost revenue associated with attending in court. Again, establishing these facts can be a challenge for plaintiff s counsel, especially when trying to do so without incurring even further disbursements. The Hamfler decision raises the bar on how to properly establish the reasonableness of assessable disbursements and raises challenges for plaintiff s counsel trying to manage expert costs while at the same time complying with the new onerous rules mandating comprehensive expert reports. In the end, personal injury claimants may end up paying the price for costs that are no longer recoverable from the insurer. Darcy Merkur is a partner at Thomson, Rogers in Toronto practicing plaintiff personal injury litigation, including plaintiff motor vehicle litigation. Darcy has been certified as a specialist in Civil Litigation by the Law Society of Upper Canada, and is the creator of the Personal Injury Damages Calculator. n n n ACCIDENT BENEFIT REPORTER THOMSON, ROGERS 7

8 TRAUMA RESOURCE DIRECTORY We are pleased to announce that the response to the online Trauma Resource Directory, found at has been spectacular. We are in the process of proceeding with stage two. We will be introducing the Trauma Resource Directory to hospitals across Ontario. GOOGLE REVIEW If you would like to write a review about your experience with Thomson, Rogers, please visit or go directly to UPCOMING CONFERENCES / SEMINARS June 21, 2012 York Central Hospital 10 Trench Street, Richmond Hill, Ontario Lunch and Learn Seminar with Thomson, Rogers and We Care Home Health Services Making the SABS Work for Your Trauma Patients and Preventing Caregiver Burnout September 13, 2012 Four Seasons Hotel Toronto 60 Yorkville Ave., Toronto, Ontario Back to School with Thomson, Rogers in support of the Canadian Paraplegic Association Ontario Managing Your Injury to Independence October 18, 2012 Americana Conference Resort and Spa 8444 Lundy s Lane, Niagara Falls, Ontario Brain Injury Association of Niagara Conference Making the Invisible... more Visible November 8-9, 2012 The Westin Harbour Castle 1 Harbour Square, Toronto, Ontario 6 th Bi-annual Toronto ABI Network Conference Tell us what you think of our new ABR look! Send an to jpileggi@thomsonrogers.com. You will be entered into a draw for a pair of Toronto Blue Jays tickets against the Boston Red Sox. If you have any questions regarding the articles in this issue of the Accident Benefit Reporter, please contact the following authors: Leonard H. Kunka lkunka@thomsonrogers.com Carr Hatch chatch@thomsonrogers.com Stacey L. Stevens sstevens@thomsonrogers.com Darcy R. Merkur dmerkur@thomsonrogers.com Accident Benefit Reporter is a publication of Thomson, Rogers Suite 3100, 390 Bay Street, Toronto, Ontario M5H 1W2 Tel Toll Free Fax Visit our web site at: The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about Accident Benefit Reporter, please contact Thomson, Rogers. 8