Divisional Court Ruling is Good News for ‘Unseen’ Accident Victims

Divisional Court Ruling is Good News for ‘Unseen’ Accident Victims

Those injured in a motor vehicle accident are not necessarily the only ones who suffer. Many times, loved ones are left with psychological and emotional scars requiring care, even if they did not witness the accident. However, these people are often disregarded, if not unseen, when it comes to insurance claims.

A recent Ontario Superior Court ruling could help change that.

In 2021, there were 1,768 motor vehicle fatalities in this country, 8,185 serious injuries and more than 108,000 total injuries according to Transport Canada.

Anyone who has been in an automobile accident, even a fender bender, can attest to how traumatic they can be. The American Psychological Association states that these collisions are the most common cause of post-traumatic stress disorder (PTSD).

Common PTSD Symptoms Can Include:

  • recurrent nightmares;
  • difficulty falling or staying asleep;
  • irritability or outbursts of anger; · difficulty having positive feelings;
  • being physically responsive to reminders of the traumatic event, such as a surge in heart rate;
  • avoiding thoughts, feelings or conversations about the trauma;
  • a loss of interest in important activities; and
  • acting or feeling as though the traumatic event is recurring, sometimes called a “flashback.”

Symptoms Can Last For Years.

These symptoms can endure for years, especially if not treated properly. And you do not have to be in a car accident or actually witness a collision to suffer from trauma if someone you love has been seriously injured. These are the victims that we rarely hear about. But their pain is real and without the proper care, they can continue to experience psychological difficulties long after physical injuries heal.

That is why last month’s Divisional Court decision in Kellerman-Bernard v. Unica Insurance Company is so important for victims of motor vehicle accidents as well as their families.

Court was told a woman suffered “psychological and emotional injuries and impairments caused by a bicycle accident in which her son was significantly injured.” While she was not involved in the accident, there is no issue that she is an “insured person” under the law, the judgment stated.

What was in question was her entitlement to catastrophic impairment (CAT) benefits under the Statutory Accident Benefits Schedule (SABS).

In SABS, an insurance claimant may be entitled to up to $1 million in treatment if they are deemed to be catastrophically impaired.

The Licence Appeal Tribunal (LAT) said no, pointing to the wording in the law.

“I am of the view that the legislature used the phrase “caused by an accident” purposely and in order to restrict CAT designation to those most seriously injured directly by the use or operation of an automobile, not their more indirectly affected family members,” wrote vice-chair Avril A. Farlam. “I find unpersuasive the applicant’s submissions that there is no difference to her injuries being ‘caused by an accident’ or ‘as a result of an accident,’ wording which she submits is used elsewhere in the Schedule, and that there is no requirement in the Schedule for an insured person to have been involved directly in an accident to apply for CAT impairment designation.”

Tribunal Decision Was Appealed.

The woman appealed the decision with the Divisional Court stating, “Instead of being remedial and inclusive, the interpretation adopted by the LAT is restrictive. Instead of fostering fairness for people with the most health needs, it increases their suffering and economic hardship.”

The court found the tribunal failed to consider the words “caused by an accident” in the relevant context.

“If the phrase had been considered in context, it would have been clear that its purpose is not restrict entitlement to apply for benefits under s. 45(1), but to clarify that the only impairments to be considered in assessing whether the impairments at issue are ‘catastrophic’ are the impairments that were caused by the accident (as opposed to other causes),” wrote Justice Harriet E. Sachs.

“There is no issue that the Appellant suffered a psychological or emotional injury as a result of the accident. The only issue is whether that injury qualifies as a ‘catastrophic impairment.’”

Victims’ Families May Need Help.

This ruling takes a much broader perspective on impairments and means someone is entitled to the same level of treatment as they would if they were physically in the accident.

I have seen the damage a motor vehicle collision can leave in its wake. Senior associate Jonathan Burton and I are working on one file where the parents of a young child were killed in an accident, leaving them obviously devastated.

In cases of serious injuries, policies will cover attendant care. In a death, an insurance company will typically pay out death and funeral benefits. They may also be willing to pay for some counselling for grieving family members.

But what happens to families who lose a loved one who was their whole world and are left to pick up the pieces? Or those who must deal with the continuing suffering of a loved one? These situations certainly warrant catastrophic impairment benefits.

Up until now, insurance providers were quick to consider terminating benefits to these victims under the guise that the claimant was not actually involved in the accident. The hope now is that this judgment will see more people getting the help they need and deserve.

Legislation needs to be re-examined when it comes to these unseen victims. It should not be left to insurance companies to determine whether someone is in need of additional medical care. Those decisions should be left to medical professionals in the treatment team.

We Can Help.

A motor vehicle collision can have a devastating impact on a family, even those who were not immediately involved in the accident. You paid your premiums and you are entitled to all the benefits insurance provides. If you or a loved one has been injured, our team will work to get commensurate compensation and support for the physical, emotional and mental trauma caused by an accident.

Our motor vehicle accident lawyers are ready to help you in Toronto, Ottawa, Niagara and Barrie. We offer a free consultation, and we will charge legal fees and expenses only if your claim has merit and successfully results in a resolution of your case. Contact us today.


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