Volume. 6 Issue. 20 – May 25, 2022

In this all ‘Definition of Accident’ edition the Tribunal continues to wrestle with what constitutes an “accident” in accordance with the Schedule.

In ‘No Suicidal Intent Despite Significant Evidence to the Contrary’, despite numerous involved parties confirming that the Applicant had attempted suicide while driving into a rock face, the Tribunal opted to accept the testimony of the Applicant as preferred over the evidence of the parties, none of which were called to testify at the hearing.

Next, ‘Ankle Fracture Not Related to Bus Incident’, considers a scenario wherein the Applicant has established entitlement, however ultimately nothing was payable given the inability to calculate either pre-MVA earnings or post-MVA losses from self-employment.

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Police, ER Physician and Applicant’s Counsellor All Wrong re Suicide

No Suicidal Intent Despite Significant Evidence to the Contrary – The Applicant R.S., in 20-006166 v Optimum , was alone in his car, when he drove into an open rock face. The police at the scene confirmed there to be no signs of braking prior to the gravel shoulder, and the report goes on to indicate “failed to negotiate slight bend in the road (purposely/suicide attempt) …and indicates “code 33. Suicide attempt”.” The attending physician in Emergency assessed R.S. as suicidal, completing a Form 1, application by physician for psychiatric assessment and noted that the applicant “had attempted/was attempting to cause bodily harm to himself”. A few weeks thereafter, R.S,’s counsellor indicated “the information provided makes me believe this car crash was a suicide attempt. S. W. is now accepting this…”.

Given these various accounts, Optimum denied entitlement to benefits, indicating that the “purpose test” was not met, as R.S. was using the vehicle for an “aberrant purpose, specifically to attempt suicide.” For his part, R.S. understandably submitted that the Tribunal “should prefer the testimony of the applicant, his mother and Dr. Zakzanis over that of the written records when determining the facts of this incident.” And this is precisely the path taken by the Tribunal.

Dismissing the evidence of the police officer, the Tribunal found it not at all clear how the conclusion was reached, the officers were not called as witnesses, and therefore the referenced documents were “insufficiently explained and untested hearsay” and therefore given little weight. Further, “there is no evidence before me that either the police or the ambulance attendants who made these notes, apart from likely being the first persons to see the applicant post-incident, have any specific credentials which would qualify them to characterize the incident as a suicide attempt by vehicle.”

As for the attending physician in the ER, the basis for the statement made was” not clear”, and again the physician was not called to testify. Finally, the opinion of R.S.’s counselor was afforded little weight, as the statement rendered “tends to indicate that the applicant was reluctant to “accept” the incident as an attempt at suicide by vehicle there was little information before the Tribunal as to “the education, training or experience of [the counsellor] that would qualify him to come to his belief”, and the counsellor also did not testify. Ultimately, while Optimum relied on the police, ambulance and hospital records, “none of the makers of these notes testified at this hearing. Without any other explanation, I am prepared to accept the applicant’s testimony that he did not say he had attempted to commit suicide…”.

Considering the evidence and testimony of R.S., the Tribunal was satisfied that actions prior to, during and immediately after the accident were not suggestive of this being a suicide attempt. It was accepted that R.S. “tried to correct the vehicle’s course by turning the steering wheel” and post incident, “his immediate reaction was to seek help… this behaviour is more likely than not inconsistent with an attempt at suicide”. The Tribunal also relied upon a psychiatric assessment one day post, wherein after assessment he was released, with this evidence given “greater weight than the notes and report of the police officers, the ambulance attendants and the emergency room physician because, it was performed by a medical specialist within a relatively short time post-incident.”

The Tribunal accepted the testimony of R.S. that he was driving. to a secluded outdoor space to meditate before going to an AA meeting. The fact of not wearing his seatbelt and having open alcohol in the vehicle did not suffice to establish suicidal intent. The Tribunal further noted that the “applicant testified that if he really wanted to commit to suicide, he would no longer be alive, and I believe him. I recognize that this evidence can be viewed as self-serving but, despite this, I found his testimony to be compelling, convincing and overall credible.” The incident was therefore an “accident” under the Schedule, with the Tribunal accepting that R.S. legitimately lost control of his vehicle in the gravel and hit the rock face.

Bus Not Involved in Incident Causing Ankle Fracture

Ankle Fracture Not Related to Bus Incident – The Applicant (C.T.), in 20-004000 v Aviva, alleged that in attempting to get onto a bus in August 2018, he slipped off the curb as it drove off, with a rear wheel running over his foot. Eventually he made his way home and was then taken to the hospital where he was diagnosed with an undisplaced fracture of the distal fibula of the right ankle. C.T. further indicated that the impact broke his ankle-foot orthotic (“AFO”) and he was bleeding from cuts sustained to his right foot and lower leg. At the September 2020 case conference, Aviva raised a preliminary issue as to whether the incident described was an “accident” in accordance with the Schedule.

The Tribunal was “satisfied this incident may have arisen from the ordinary and well-known activities to which automobiles (or, in this case, transit buses) are put. I find the incident comprised the larger activity of attempting to enter a vehicle. The applicant had the intention of entering the vehicle when the alleged incident took place.” However, the Tribunal was “not satisfied the applicant’s injuries were caused by the use or operation of the transit bus. While the applicant has provided multiple self-reports to various medical and treating clinicians, he has not provided any objective evidence to link his injuries to operation of the bus on the date of the incident.”

The Tribunal was “unable to determine (on a balance of probabilities) that there is a nexus between the operation of the bus and the injuries sustained by the applicant. There were no witnesses, no photographic evidence of the applicant’s injuries or his damaged AFO, no incident reports or call logs provided by the City of Hamilton, Hamilton Police, or ambulance records.” Similarly, there was “no evidence before me from any medical professional that the injuries sustained are consistent with this type of impact”. Concluding, the Tribunal was “satisfied that some form of objective evidence relating to the mechanics of the incident is required to satisfy that the causation test has been met. Again, I have not been provided a single piece of objective evidence that links the applicant’s broken ankle to the operation of the bus in question.”

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