Recklessness no barrier to accident benefits: Strike
By AdvocateDaily.com Staff
In a recent case, Ontario’s Divisional Court upheld a Licence Appeal Tribunal adjudicator’s decision to award accident benefits to a woman who hit her head on concrete during a “car surfing” accident.
The unanimous three-judge panel found the adjudicator was right when she decided the incident, which involved the woman standing on a rear bumper of her father’s car while holding on to the roof and a friend’s shoulder, qualified as an “accident” under the Statutory Accident Benefits Schedule (SABS).
“While reckless and foolish, [the woman] was using the vehicle for its normal purpose of transportation and there was an accident in which the Adjudicator correctly determined there was Statutory Accident Benefits,” the panel wrote. “This decision was reasonable and within the consumer protection purposes of the Insurance Act, 4 which provides benefits to insured persons like [the woman], who was an insured under her father’s insurance policy."
Although the insurer has sought leave to appeal the ruling to the Court of Appeal, Strike, counsel to Will Davidson LLP, says he will be surprised if it is successful.
“The general concept with no-fault insurance is that the way you acquired the injury is not really relevant, as long as it involved the use of a car and you need benefits to help with rehabilitation and income replacement,” he says. “It generally doesn’t matter how reckless you were. If you were badly hurt and you need help, you can still get these benefits.”
In his long career at the bar, Strike has seen many odd claims for accident-related injuries, including a man who received benefits despite attempting suicide by driving his car off a train trestle.
In another recent case, a court ruled in favour of a woman who suffered serious burns after spilling coffee on herself while picking up her drive-thru order.
“The distinctions can get pretty fine," Strike says. "If you’re getting out of a vehicle and slip in a parking lot while still touching the vehicle, you probably have no-fault coverage, but if you lock the door, take a couple of steps and then fall, you probably won’t be covered.”
He says Ontario’s hybrid auto insurance system dates back to the early 1990s when no-fault accident benefits were introduced to give people quick access to rehabilitation and other assistance, without having to worry about a long wait for compensation following litigation.
On the longer-term side, plaintiffs can pursue damages for pain and suffering and other financial losses via a tort claim made in court. Strike says it’s here that plaintiffs, like the one in the car-surfing case, will run into trouble.
“They may still have a claim, but they will take a big hit of contributory negligence,” he says. “In this case, I would say the fault is going to be assessed as at least 50 per cent her own.
“These cases are usually decided by juries, and they’re not going to have much sympathy for behaviour like this,” Strike adds.
Over the years, he says the no-fault portion of auto insurance has moved from a peripheral consideration to a more central role, causing a headache for insurers.
However, a successful lobbying effort by insurance companies has resulted in a number of recent amendments to the SABS that have limited injured parties’ entitlements, Strike says.
“They’ve been pared back substantially,” he says, pointing to a 2016 round of cuts that saw the combined limit for attendant care and medical rehabilitation services available for catastrophically injured victims cut in half — from $2 million to $1 million.
In addition, the combined attendant care and medical and rehabilitation services for non-catastrophically injured victims fell from $86,000 to $65,000, and the standard duration for medical and rehabilitation benefits was cut from 10 years to five years, except for children, explains Strike.