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Parked motorcycle resulted in "accident".

November 21, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Economical v Caughy

 

Date of Decision: June 10, 2015

Heard Before: The Honourable Mr. Justice R. J. Nightingale          

 

SUPERIOR COURT OF JUSTICE - ONTARIO

 

In this case Economical sought an application forward to determine whether an accident as defined in the SABS occurred.

 

Mr. Caughy drove his family in a truck and camper trailer to a campground. He parked the trailer alongside other trailers and detached it from the car. There was a space between the campers which used as a walkway. During the night two motorcycles were moved into the walkway area by some other campers without Mr. Caughy’s knowledge.

 

That night, after having spent the day and evening drinking alcohol, Mr. Caughy was playing tag with the kids around the parked truck, colliding and tripping over the motorcycles. He fell forward striking his truck, falling to the ground. He sustained serious spinal cord injuries. He applied to Economical under his policy for benefits and was denied.  Economical’s position is that Mr. Caughy is not entitled to accident benefits as he was not involved in an “accident” as defined by the SABs. Mr. Caughy disagrees.

 

Justice Nightingale reviewed the legislation and the law. He determined that the SABS has a clear definition of ‘accident’:

 

 “… 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.”

 

Justice Nightingale then reviewed the law and determined that in order to be considered an accident this incident must meet the twofold test:

 

  1. Did the accident result from ordinary and well-known activities to which automobiles are put? (the “Purpose Test”) and

  2. Was the relationship causal or was it merely fortuitous or incidental? (the “Causation Test”).

 

Upon considering previous decisions and the facts of this case, Justice Nightingale determined that the owner of the motorcycle had parked it temporarily on the walkway area intended for pedestrian use shortly before this incident. The motorcycle was obviously not in motion at the time of the incident but the temporary parking of the motorcycle that evening on that walkway constitutes a normal, ordinary or well-known use or operation of that motorcycle. There was no evidence that the motorcycle was inoperable at the time of it being parked or at the time of the incident. In addition, there was no evidence that the motorcycle was intended to be left or stored there for an extended period of time. Therefore, in Justice Nightingale’s view Mr. Caughy satisfied the purpose test.

 

In this case, the temporary parking of the motorcycle in the circumstances that evening was the dominant feature in the incident and not simply ancillary to it. The motorcycle was parked on the pedestrian walkway after dark shortly before this incident unknown to the Respondent. A reasonable inference was that because of its size and dimensions, it was likely less noticeable to pedestrians using that walkway than if a regular car was parked there especially because of the darkness. There is no evidence that any warnings to others using the walkway of the presence of the motorcycle including signage or barriers were used. The parking of that motorcycle in those circumstances that night created or added to the risk of injury that befell Mr. Caughy and other pedestrians using that walkway. The parking of the motorcycle not just led to his injuries, it contributed physically to and/or caused them.

 

Based on the evidence the use or operation of the motorcycle in question was a cause of the Mr. Caughy’s injuries and Justice Nightingale determined there was an unbroken chain of causation linking the conduct of the operator of the motorcycle in question, as a motorist, to Mr. Caughy’s injuries. The fact that the Mr. Caughy may have been running after dark at the time of the incident and after having consumed considerable amounts of alcohol are not intervening acts sufficient to break the chain of causation between his colliding with the motorcycle and his injuries.  He therefore has met the causation test.

 

Accordingly the Justice ruled Mr. Caughy was involved in an accident pursuant to the Statutory Accident Benefits Schedule.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Concussion Syndrome, Drunk Driving Accidents, Fractures, Motorcycle Accidents, Pedestrian Accidents, Spinal Cord Injury, Truck Accidents

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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