July 19, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
DECISION ON A PRELIMINARY ISSUE
Heard Before: Arbitrator Randy A. Pepper
Date of Decision: May 12, 2014
Mr. Beant Gill was injured in an incident May 13, 2010. Following driving several very long shifts in the American state of Wisconsin. At some point he parked on a dead end road. Police saw the truck and investigated. A police officer met “with a person who appeared to be of Middle Eastern descent…the male began talking, however [the officer] could not understand the person”. Mr. Gill handed over his Ontario driver’s licence which appeared to be valid. The officer followed Mr. Gill onto the highway and learned that the State Patrol was pursuing the truck. Another officer arrived and activated his emergency lights and siren. Mr. Gill began driving the semi-trailer truck in an erratic and dangerous manner on US Highway 12, which included driving down the centre of the highway, not stopping for a red light, crossing the median, and driving into on-coming traffic. At one point, Mr. Gill’s vehicle struck a dump truck.
The police mistakenly determined that the truck was stolen and became concerned that the truck might contain explosives. Several police cruisers became involved in the pursuit of Mr. Gill and his truck. Tire deflation devices were deployed and eventually slowed the truck, which then came to rest on State Highway 16. When Mr. Gill came down from the cab he was shot repeatedly by police with rubber bullets. Mr. Gill states, “I was not in my right mind”. He was eventually persuaded to exit the vehicle, arrested and taken to hospital.
He applied for statutory accident benefits from Northbridge Commercial Insurance Corporation payable under the applicable Statutory Accident Benefits Schedule. Northbridge did not pay accident benefits to Mr. Gill because it disagreed that he had been involved in an accident. The parties were unable to resolve their disputes through mediation, and Mr. Gill applied for arbitration at the Financial Services Commission of.
North Bridge maintains Mr. Gill’s injuries stem from being shot and arrested, not from an accident. Northbridge brought this motion for a determination of the following Preliminary issue:
The issue in this Preliminary Hearing is:
Was Mr. Gill injured as a result of an “accident” as defined in Section 2(1) of the Schedule?
Northbridge’s motion is dismissed. There is a genuine issue for hearing as to whether Mr. Gill was injured as a result of an “accident”, as defined in the Schedule.
The statements provided by Mr. Gill were not disputed. They stated that, “Before the May 13, 2010 accident I was in fine health” and that he had not hurt his neck, right wrist, left arm or back, nor did he suffer from headaches or depression. He had never before suffered from a psychotic or bi-polar incident although he reported to police that in the past he had heard voices. There is no dispute that Mr. Gill suffered several impairments as a result of the incident on May 13, 2010.
On May 13, 2010 Mr. Gill suffered a psychotic and manic-depressive incident apparently brought on by the operation of his vehicle, fatigue, extreme tiredness, and stress from long shifts operating his truck. Since the May 13, 2010 incident, he has been receiving medication and is under the care of a psychiatrist. He provided no medical or other expert evidence this hearing.
Mr. Gill’s injuries from the May 13th incident include:
Bipolar Illness Type 1 which had not been diagnosed prior to the incident;
Neck pain as a result of being shot with rubber bullets in the back of the neck;
Right wrist and hand pain from being shot by rubber bullets;
Left arm pain from being shot by rubber bullets;
Low back pain;
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Was the use or operation of the vehicle a cause of the injuries?
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries?
Several FSCO decisions were also reviewed and the principles that emerged were:
The use or operation of the motor vehicle must directly cause the impairment;
A direct cause sets in motion a chain of events leading to a result without any later intervening act. 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 an automobile….The motor vehicle must be a dominant feature in the incident, and not ancillary to it;
A subsequent contributing cause may not break the chain of causation if it is “part of the ordinary course of things”. If one can show a chain of events that commences with the use or operation of a motor vehicle and which was not interrupted by some new cause or event, the likelihood is that SABS benefits will be recoverable.
This Tribunal has some difficulty applying the modified test to the present case, given the state of the record and the absence of medical or other expert evidence from either side as to the likely cause of Mr. Gill’s psychotic and manic-depressive incident. Further, additional evidence is required at the hearing in order to properly assess whether the shooting under these unique factual circumstances was an intervening event or in the ordinary course of things, given the Mr. Gill’s erratic and dangerous driving.