With the near tropical winter most Ontarians experienced this year, the number of cyclists on our roads in January and February was higher than ever. This naturally led to a rise in the number of accidents involving bicycles and motor vehicles. Despite the obvious coverage available to an injured pedestrian or cyclist who has been struck by a motor vehicle, the question emerges as to what recourse is available for a pedestrian or cyclist who is injured when there is no actual impact or physical contact with the motor vehicle alleged to have contributed to the incident. A common example of such a situation is a cyclist who crashes and sustains injuries while swerving to avoid being struck by a motor vehicle.
The case law has developed around this question significantly with respect to Statutory Accident Benefits coverage. Despite the development of the law, an injured party in the situation described above can still expect the responding accident benefit insurer to initially deny that their injuries were caused by an “accident,” as defined in section 3(1) of the Statutory Accident Benefits Schedule (SABS). The Schedule states:
” ‘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.”
Injuries involving pedestrians or cyclists and motor vehicles are often considered “catastrophic,” which enable the injured party to receive enhanced benefits under the Schedule. With potentially enhanced benefits available, the determination of whether the claimant was injured as a result of an “accident” often becomes a high-stakes debate.
The case of Seale v. Belair Insurance Co.,1 a 2003 decision from the Ontario Financial Services Commission sheds light on this issue. In Seale, the claimant’s vehicle had lost traction and became stuck in an icy intersection. The claimant shut off her engine and exited her vehicle with the intention of trying to push the vehicle. Before the claimant started to push her vehicle, it began to slide on the road and eventually came to rest in a snow bank. After thirty seconds elapsed, the claimant then walked toward her vehicle and slipped and fell on the icy road, sustaining injuries. The Arbitrator concluded that the injury was sustained while the van was being “used” or “operated.” The Arbitrator concluded that a determination of whether “use or operation” of the vehicle directly caused the injuries involved a consideration of intervening acts or forces, and whether the loss was a normal and reasonable risk of motoring. Importantly, the Arbitrator stated that the definition of “accident” does notrequire the injury to occur because the insured has physical contact with the vehicle.2
The Ontario Financial Services Commission’s decision of Petrosoniak v. Security National Insurance Co.,3 is also helpful. In Petrosoniak, a cyclist was injured when his bicycle crashed on the pavement after it had driven over a patch of hydraulic oil spilled by a motor vehicle on the road. In assessing the word “direct” in the definition of “accident,” the Arbitrator referred to the term “direct cause” which he defined as “the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started, and working actively from a new and independent source.”
The Arbitrator found that the cyclist was indeed injured in an “accident” and entitled to accident benefits. The Insurer conceded that the definition of “accident” does not go as far as to require the injured party to come into direct contact with a vehicle.
The Arbitrator stated:
“In the instant case, the [cyclist] was injured as a direct result of coming into contact with a wet patch of pavement. I have found that the fluid on the pavement was released by a motor vehicle. While the fact that the fluid fell onto the roadway, as opposed to falling directly onto Mr. Petrosoniak, may have constituted an intermediate step in the process which ultimately led to his injuries, it does not, in my view, constitute an intervening act or a force ‘working actively from a new and independent source.” 4
Importantly, the Petrosoniak definition of “direct cause” has been applied by the Ontario Court of Appeal in the 2002 decision of Chisholm v. Liberty Mutual Group.5
A review of the relevant Ontario Financial Services Commission’s decisions reveals the following propositions which have been used in determining what constitutes an “accident” pursuant to section 3(1) of the Schedule. These propositions include:
- The use or operation of a motor vehicle must directly cause the impairment.6
- A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.7
- 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 a motor vehicle.8
- The motor vehicle need not come into direct physical contact with the victim.9
- The role played by the motor vehicle must be more than just the location, opportunity or motive of the incident.10
- The motor vehicle must be a dominant feature in the incident and not ancillary to it.11
These cases demonstrate that a cyclist or pedestrian who is injured, but who was not in physical contact with a motor vehicle, will still be entitled to Statutory Accident Benefits, if the facts and circumstances of their case qualify under the “direct cause” or “dominant feature” propositions contained in these decisions.
It is therefore critical for pedestrians and cyclists who have been injured in an “accident” to act quickly to retain counsel, as the initial investigation into the accident (particularly where there is no impact or contact with a motor vehicle) will largely determine whether they will later be entitled to accident benefits. A flawed motor vehicle accident report, the failure of counsel to obtain immediate witness statements or to conduct a proper investigation, or the general delay of the injured party in obtaining counsel can all have a deleterious impact on a claimant’s likelihood of having their incident considered an “accident” within the meaning of the Schedule.
1  O.F.S.C.I.D. No. 8.
2 Ibid. at para. 8.
3  O.I.C.D. No. 183.
4 Supra note 3 at paras 24-25.
5  O.J. No. 3135.
6 Supra note 3.
8 TTC Insurance Company v. Correia (FSCO P00-00061, July 16, 2001).
9 Supra note 3.
10  O.F.S.C.I.D. No. 82. at para 36.