February 20, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision Date: November 30, 2015
Heard Before: Adjudicator Barry Arbus
DECISION ON A PRELIMINARY ISSUE
Mr. Ignazio Salamone was 56 when he was driving his van and suffered a heart attack. He lost consciousness, lost control of the car, hit several guard rails and eventually ended up in the ditch. He applied for accident benefits from Aviva. Aviva questioned whether Mr. Salamone was involved in a car accident as defined in the Schedule, and as the parties were unable to resolve their dispute through mediation Mr. Salamone applied for arbitration at the FSCO. They requested that this Hearing be restricted to the preliminary issue of determining whether an accident as defined in the Schedule had happened.
The issue in this Preliminary Issue Hearing is:
Was Mr. Salamone involved in an accident as defined by the Schedule?
Mr. Salamone was not involved in an accident as defined by the Schedule.
While there were people at the accident scene almost immediately, it took considerable time for enough help to arrive to extricate Mr. Salamone from his van by which time he had sustained a severe neurological impairment.
Mr. Salamone’s took the position that pursuant to the Schedule he was involved in an accident. Specifically he referred to Section 3(1) arguing that the Schedule is to be read liberally and in favour of Insureds where possible:
“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.
The Arbitrator stated that the ‘purpose test’ and direct causation tests were to be addressed. Specifically did the incident arise out of ordinary and well-known activities to which cars are put, and was there direct causation between this use and the incident?
Mr. Salamone argued that there is no difference in losing control of one’s car, whether it be due to inattention, falling asleep, intoxication or a heart attack. Mr. Salamone’s put forward that two questions that must be answered in order to determine the “causation test”:
(1) the “but for” consideration; and
(2) the “intervening act” consideration.
Mr. Salamone’s counsel submits that but for Mr. Salamone driving his van, resulting in a collision, being stuck over a five foot ditch and the van’s instability, Mr. Salamone would not have been denied CPR for a total of twenty minutes, therefore he would not have had delayed defibrillation and sustained the neurological brain impairment that he did, nor would the severity have been as materially substantial. Mr. Salamone’s argues the chain of events clearly constituted regular and ordinary use of a motor vehicle and thus, “an accident” resulting in his poor neurological outcome.
Aviva takes the position that in 1997, the definition of “accident” was changed leaving a much narrower and more stringent causation requirement for an Applicant to meet. This change reflects a government policy decision to hold insurance companies responsible only for injuries directly caused by the use or operation of an automobile.
Aviva argues that the causation test can be met if it can be shown that some event subsequent to the heart attack led to an increase in the level of impairment. Aviva argues that the heart attack was not caused by the driving of a vehicle or the crashing of a van; it was caused by blockage of an artery. Aviva argues that even if Mr. Salamone had not been trapped in the van, it was highly unlikely that any resuscitation by the paramedics would have been successful to the point of allowing him to have enjoyed a significantly better neurological outcome.
Aviva agrees that the two tests to apply are:
(1) the purpose test: did the incident arise out of the use and operation of an automobile and, if so,
(2) the causation test: did the use and operation of the automobile directly cause the impairment.
Aviva concedes that the purpose test is satisfied by the circumstances in this case in that Mr. Salamone was driving his van down the highway. Aviva then examines the “but for” test. Applying the “but for” test, Aviva argues, is an exclusionary test rather than a causation on its own. Aviva argues that the use and operation of the vehicle was irrelevant to the direct cause of the brain impairment; it was the heart attack. Aviva argues that effective CPR applied on a timely basis cannot be assumed and accordingly Mr. Salamone does not satisfy the “but for” test.
The Arbitrator reviewed the law and the evidence and determined that there is no question that in this case that the purpose test has been satisfied in that Mr. Salamone was driving his van down the highway when the heart attack occurred. The second test, which is the causation test, asks whether the use and operation of the automobile directly caused the impairment. The “but for” test is an exclusionary test to rule out irrelevant causes without establishing the legal causation on its own. Clearly the heart attack was the cause of the impairment and not the driving of the van. The “intervening act” test is not satisfied as the “intervening act” concept will not absolve an Insurer of liability if it can be considered a normal incident of the risk created by the use or operation of the car, however, Mr. Salamone’s heart attack cannot be considered an intervening act in the ordinary course of things; it was the direct cause of the brain injury. The operation of the car was not the direct cause of the injury.
The Arbitrator was satisfied that Mr. Salamone was able to satisfy the purpose test. He has fallen short on the causation test.