Motor Vehicle Accident Tort Claims

Tort actions arising from motor vehicle accidents in Ontario are legislatively filtered through rules specifically aimed to limit the volume of claims proceeding through our court system.

Filtering tort actions takes place with what is informally referred to as a “verbal threshold” and a “monetary threshold”, which apply to the intangible claim of non-pecuniary damages or pain and suffering.

To succeed in the pain and suffering component of a tort action claim, a defendant through their insurer may take the position that the claim “does not meet the threshold”.  The verbal threshold consists of statutory language under the Insurance Act and its regulations which requires the tort claimant to have suffered a “permanent, serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function.

 

The monetary threshold acts to deduct monetary damages from the amount awarded for a pain and suffering claim. For example, if the claim for pain and suffering was assessed by a court to be in the amount of $100, 000.00, the monetary threshold serves to reduce this amount pursuant to the applicable deductible. The deducted amount is not provided to anyone and it is merely an amount that the defendant or his or her insurer is spared from paying to the injured party.

In 2003, the monetary deductible was legislated to be in the amount of $30, 000.00. As of 2015, the amount of the deductible has been indexed to inflation. As of the date of the writing of this article, the monetary deductible amount is $39, 556.53, which following from the example above would translate into a net amount payable to an injured claimant of $60, 443.47 from a $100, 000.00 assessment for pain and suffering.

Depending upon the amount of the damage assessment, an injured party can, in limited circumstances, avoid the monetary deductible, or escape the deductible, which is also subject to indexation. Initially legislated in the sum of $100, 000.00, as of January 1, 2020, a damage assessment for pain in suffering in excess of $131, 854.01 would achieve this result.

In addition to damages for pain and suffering, an injured claimant may also claim damages for past and future income loss, damages for loss housekeeping and home maintenance expenses, and other types of damages.

If you have been injured in a motor vehicle accident, feel free to contact our office for a confidential consultation, at no charge.

Uninsured Motorist Coverage

Uninsured Motorist Coverage offers a layer of protection in the event that a person sustains injury due to the negligence of the owner or operator of a motor vehicle that is uninsured or is unidentified.  Coverage is mandated by section 265 of the Insurance Act in the amount of $200, 000.00 – which is the minimal insurance liability limits in Ontario.  With this form of coverage, your insurer essentially “steps into the shoes” of the uninsured or unidentified motorist.

By the operation of what is often referred to as the “1% Rule,” in the event that an injured party can be compensated by a third-party motorist’s policy, such as in the event of a multi-vehicle collision, Uninsured Motorist Coverage would not be available.

To provide procedural safeguards to protect against fraud, Uninsured Motorist Coverage requires the would-be claimant to report the automobile accident to a police officer within 24 hours.  In addition the injured party is required to provide a written statement to his or her insurer detailing the circumstances of the accident, and a description of the claim for compensation with supporting documents within 30 days, as soon as feasible.

Where there is no policy for which to make a claim for Uninsured Motorist Coverage, as a last resort, an injured party can advance a claim to the Ontario Government administered Motor Vehicle Accident Claim fund, which is also capped at $200, 000.00.

In addition to Uninsured Motorist Coverage, typically policyholders also opt for separately purchased coverage in the form of Family Endorsement Protection.  Family Endorsement Protection provides coverage in excess of coverage available from a third-party policy of an at-fault party or under the provisions of Uninsured Motorist Coverage.  Family Endorsement Protection prohibits the “stacking” of coverage by limiting available coverage to the difference between available coverage from other sources and the limits of the Family Endorsement Protection.  For instance, if the injured party’s damages were assessed at $800, 000.00, but only $250, 000.00 of third-party coverage was available, the injured party would recover the difference between the two policies in the sum of $550, 000.00.

If you have any questions about Uninsured Motorist Coverage, the Motor Vehicle Accident Claim fund or the Family Endorsement Protection provisions of your policy, please feel free to contact us for a confidential consultation, at no charge.

Accident Benefits

If you have suffered an injury as a result of a motor vehicle accident, you will be eligible to receive statutory accident benefits which are provided in all automobile policies through the standard statutory Ontario Automobile Policy (OAP 1). Effective June 1, 2016, there were significant changes to the level of benefits provided in Ontario, which are summarized in the table below.  

Further, if optional benefits have been purchased under an automobile policy, an injured person may be eligible to receive Dependent Care Benefits, indexation to benefits, caregiver and housekeeping benefits in the absence of a finding of catastrophic impairment, or an increased level of benefits.

Airline Accidents

Accidents that cause injury to passengers during the course of international travel by air are governed by two overlapping international conventions: The Warsaw Convention of 1929, and the Montreal Convention of 1999.

For the injured passenger, Article 17 of the Warsaw Convention provides that:

The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

With minor variations, the Montreal Convention of 1999 adopted the language of Article 17 of the Warsaw Convention.

For an injured passenger to recover damages there are three conditions that need to be met: A). Involvement in an “accident”; B). Death or bodily injury caused by the “accident,” C). While the injured person was a passenger on board of the aircraft or while in the process of embarking or disembarking the aircraft.

What is an “Accident?”

By far, the greatest extent of litigation on the international frontier relates to whether or not a passenger was involved in an “accident.” The most frequently cited decision interpreting the term “accident” is the decision of Air France v Saks [1985] which defined the term as

an unexpected or unusual event or happening that is external to the passenger”, and also providing that, “Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event.”

Determining what event or chain of events would constitute an “accident” is not as clear as it would appear to be.

For instance, in Carmelo Labbadia v Alitalia [2019] EWHC 2103, a passenger claimed damages due to injuries sustained while descending mobile snow-covered stairs from an aircraft after landing in Milan after a flight from London, England.  Applying the interpretation of the term “accident” established by Air France v Saks, the English High Court ruled that the incident was indeed an “accident” within the meaning of the Montreal Convention.  The Court held that the event was exemplified by a series of acts and omissions by airport personnel by reason of a failure to clear the stairs of snow and opting not to provide a canopy over the stairs at the time of the passengers’ descent from the aircraft.  

In the 2003 decision of Olympic Airways v. Husain, by Majority, the U.S. Supreme Court determined that a passenger who died due to an allergic reaction to second-hand smoke was involved in an “accident.”  In this case, the passenger’s wife requested a flight attendant to re-assign their seats due to her husband’s second-hand smoke allergy but was incorrectly told that there were no unoccupied seats available on the aircraft.  The U.S. Supreme Court found that the flight attendant’s failure to provide assistance served to satisfy the criteria of an “unexpected or unusual event or happening that is external to the passenger.”  In dissent, Justice Antonin Scalia assessed the flight attendant’s conduct as a non-event rather than an event, which in his ruling did not give rise to an “accident.”

The French Court in the 1979 decision of La Compagnie Nationale Air France, SA v. Haddad, ruled that the term “accident” was expandable beyond technical or mechanical accidents affecting the aircraft.  Accordingly, while the act of hijacking is clearly an intentional act, where passengers aboard an international flight from Tel Aviv to Paris suffered physical injuries resulting from a hijacking, the injuries were determined to be compensable pursuant to Article 17 of the Warsaw Convention.  The Court held that the term “accident” includes incidents occurring during a normal flight that result from “unforeseen intervention by malevolent third parties.”

What Types of Injuries are Recoverable?

Article 17 of the Warsaw Convention and the Montreal Convention make specific reference to the term “death” and “bodily injury.”  By consequence, pure emotional damage that is unaccompanied by physical injury would appear to be excluded from the compensatory scope of the international conventions.

In the 1991 decision of in Eastern Airline v. Floyd, the U.S. Supreme Court held that an event that was the epitome of every passenger’s worst nightmare was not compensable under Article 17 of the Warsaw Convention.  In this case, the aircraft lost power in all three engines and was preparing for an amphibious landing directly into the ocean which was thankfully avoided when the engines suddenly restarted and the aircraft made a safe landing.  The Court held that the pure psychological distress stemming from this event was not recoverable.  However, where emotional trauma stems from a physical injury, or where a physical injury is manifested in the form of a psychological illness, dependent upon the circumstances, such damages would likely be recoverable.

If you have suffered an injury due to an accident while in the course of an international flight, please contact us for a confidential assessment of your case, at no charge.