Applicant meets two-part test - death is result of accident - TD and Wawanesa Lat 16-001535

November 30, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

RD and Wawanesa – LAT 16-001535 CanLII 69453 (ON LAT)

Decision Date: September 28, 2017
Heard Before:  Ruth Gottfried

WAS DEATH AN ACCIDENT: applicant suffers heart attack immediately following car accident; was it an accident; applicant meets two-part test.

On September 16, 2013 RD’s husband, HS, was involved in a car accident.  An oncoming car made a left-hand turn in front of HS’s car.  He had no opportunity to avoid the collision and his car was struck on the front driver’s side, causing it to roll over.  The air bags were deployed. HS did not seek medical attention at the scene.  He arranged to have his car towed to an auto repair shop where he met with his brother-in-law, GN.  GN left HS for a few moments to speak with the auto repair staff and when he returned, he found HS “face up on the ground” and “unresponsive”.  An ambulance was called and HS died at the hospital within approximately one hour of his arrival.

A post-mortem examination was performed and it was discovered that the cause of HS’s death was Atherosclerotic Coronary Artery Disease. HS’s wife, RD, and children submitted a Death and Funeral Benefits Application (OCF-4) to the respondent, Wawanesa denied the benefits and when mediation failed, RD applied for arbitration.                                                                                            

Issues:

1. Was HS’s death a direct result of an accident?
2. Is RD entitled to spousal death benefits?
3. Are HS’s children, AD and SD, entitled to dependant death benefits?
4. Are funeral benefits payable?
5. Are RD, AD and SD entitled to interest on all overdue benefits calculated pursuant to section 51 of the Schedule?
6. Is RD entitled to her costs of this application?
7. Is Wawanesa entitled to its costs of this application?

Wawanesa advised that it does not dispute the date of the accident or that HS died a few hours after the accident.  They also advised that if there is a decision that his death was a result of the accident, they do not dispute the payment of the amount of the benefits.

Both parties admit on the cause of death on the Coroner’s report.  It is RD’s position that HS had an underlying and previously asymptomatic and untreated CAD, which was triggered by the extreme stress caused by the accident.  RD argues that since the accident is the triggering event that caused the death, HS’s family is entitled to death and funeral benefits as his death is a direct result of the accident.

It is Wawanesa’s position that the death of HS did not result from an incident in which the use or operation of an automobile directly caused an impairment, as per section 3(1) of the Schedule.  Its position is that HS “would have inevitably suffered from a cardiac event independent of the car accident.  As such, the death does not meet the requirement of sections 26 and 27 of the Schedule and RD is not entitled to the death and funeral benefits claimed.

RESULT:

1. HS death was a direct result of the accident on September 16, 2013;
2. RD, AD and SD are entitled to death and funeral benefits as provided in the Schedule;
3. RD, AD and SD are entitled to interest on the above-noted benefits pursuant to the Schedule;
4. neither RD or Wawanesa are entitled to costs.

ANALYSIS:

The Arbitrator noted the two-part test is appropriate. It involves a purpose test and a causation test. If RD establishes that the incident arose from the ordinary use or operation of the vehicle (the purpose test); and that there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the ordinary course of things.

Both parties agree that an accident occurred during the ordinary operation of a vehicle.  The parties’ dispute arises under the causation analysis: was HS’s death was as a direct result of the ordinary use of a car.

The Arbitrator then applied the three-prong test.  

Prong 1:  the “but for” test.  Under the “but for” test, Wawanesa relies heavily on the reports of the Coroner and on the expert report submitted by Dr. Robert Myers, a cardiologist.  Dr. Myers states, “it is clear that HS would have inevitably suffered from a cardiac event independent of the MVA.”

Wawanesa submits that the Coroner “confirmed that there was no direct causal relationship between the accident and HS death.” Wawanesa submits that due to HS’s underlying condition he was likely to experience sudden death regardless of the accident. 

RD provided an expert report arguing that Wawnesa has based their argument on a faulty premise that HS would have died of the heart issues eventually. HS had had some neck pain previously but that was attributed to other causes. No typical symptoms of angina were identified in HS’s medical records.

The Arbitrator round Wawnesa’s quotes from the Coroner report to be disingenuous and noted that when ready more fully the report notes that “the Coroner found hemorrhagic gastropathy present during the autopsy, indicating recent stress.  Under the heading of “contributing factors”, the Coroner has listed “stress from recent motor vehicle traffic crash”.” The Coroner concludes with the statement:  “[a]lthough the motor vehicle accident did not cause significant traumatic fatal injuries, it may have played a role in inducing stress, as confirmed by the hemorrhagic gastropathy, however a direct causal relationship cannot be established.”.

RD’s expert concluded that “[o]n the balance of probabilities, the stress that [HS] sustained at the time of and following his collision triggered myocardial ischemia (inadequate blood flow to the heart) and a fatal arrhythmia.” G.N. testified that HS had complained of some chest pain that he [HS] thought had been caused by the deployment of the air bag.

Wawanesa has relied on an incomplete reading of the Coroner’s report and an IE report, adopting the position that since HS suffered from CAD (although asymptomatic and undiagnosed) and had no other injuries as a result of the accident, HS does not meet the “but for” test, as he was likely to suffer a fatal heart attack anyway.

On this basis the Arbitrator determined that the accident directly caused the trigger that initiated the cascade of events ending with HS’s death. This case is an example of the “thin skull rule” in law and not the “crumbling skull”.

Prong 2: an intervening cause that may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile.

Wawanesa relies on the “Waters”, in which Mr. Waters died after having a heart attack while driving.  After suffering the attack, his car collided with a pole at a slow speed. Wawanesa points out that in the Waters case the heart attack “represents the intervention of a force that stems from a "new and independent source effectively breaking the chain of causation.”

The Arbitrator noted that the facts in this case and Waters are distinguishable as Mr. Waters had a heart attack while driving does constitute an intervening cause, not part of the ordinary course or use of operation of the automobile, that breaks the link of causation.

RD argues that the motor vehicle accident and resulting stress triggered myocardial ischemia and a fatal arrhythmia.  She also notes that neither party has claimed or put forward evidence that a myocardial ischemia occurred prior to the subject motor vehicle accident. RD’s position is supported by the medical evidence and the testimony.

On this basis the Arbitrator found that RD has shown that the chain of causation ended with the arrhythmia and death and began with the motor vehicle accident.

Prong 3: was the use or operation of the automobile the dominant feature of the incident?

RD has the onus to prove that the use and operation of the vehicle was directly responsible for the injuries.  Although neither party independently addressed this prong of the causation test, each has included their positions in their submissions on the other aspects of the causation test.

On the basis of the facts the Arbitrator ruled that RD has fulfilled her onus to prove that the use and operation of the vehicle was directly responsible for HS’ death.

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