Guillet v. American Home Assurance Co.

Guillet v. American Home Assurance Co. [Indexed as: Guillet v. American Home Assurance Co.]

72 O.R. (3d) 641

[2004] O.J. No. 4330

Docket: C40273

Court of Appeal for Ontario,

Abella, Borins and Simmons JJ.A.

October 26, 2004

Insurance -- Interpretation and construction -- "Accident" --Deliberate acts of ordinary living being capable of falling within definition of "accident" in insurance policy -- Question of whether such act constitutes accident depending on whether or not insured expected that resulting injury would be consequence of his act -- Insured suffering ischemic stroke during basketball game as result of dissection of left internal carotid artery -- Trial judge not making palpable and overriding error in finding that stroke was caused by trauma to insured's arterial wall when he turned his neck while playing basketball and that his injury was caused by "accident" within meaning of policy.

The insured suffered an ischemic stroke while playing basketball, as a result of which his right upper and lower limbs were permanently affected. The stroke originated with a dissection of the left internal carotid artery. He made a claim under a group accident policy which provided that the insurer "shall pay an indemnity . . . if an Insured Person sustains a loss . . . resulting from injury" and which defined "injury" as "bodily injury caused by an accident and resulting directly and independently of all other causes". The trial judge found that the dissection of the left internal carotid artery was probably caused by trauma to the arterial wall resulting from a twisting of the insured's neck during the basketball game. He found that deliberate acts of ordinary living, such as turning one's neck during a basketball game, can fall within the definition of an accident under the policy, and that the question of whether such an act is an accident within the meaning of the policy will depend on whether or not the insured expected that the resulting injury would be a consequence of his act. He said that although the insured intended to turn his neck during the basketball game, he had no previous health issues related to his arteries, and that no non-medical person would reasonably expect the turning of the neck to cause injury to the wall of the artery. He found that the insured's injury was caused by accident within the meaning of the policy. The insurer appealed.

Held, the appeal should be dismissed.

Per Simmons J.A. (Abella J.A. concurring): Deliberate acts of ordinary living can constitute an accident. Where the injury is unforeseen, unexpected and without design, and not likely to result naturally or ordinarily from the voluntary or intentional act, but rather constitutes an unusual result, it may be said that it is an accidental injury. The trial judge's factual findings amounted to a determination that the insured suffered an injury that was unforeseen, unexpected and without design as a result of subjecting his body to stress, strain or exertion during the course of an intentional, normal and everyday activity. He did not err in concluding that the insured's injury was caused by an accident.

The insured did not testify at trial and had no recollection of the incident. Given that he was incapable of testifying, no adverse inference arose from his failure to lead direct evidence. This was a case in which direct evidence on the issue in dispute was simply not available. In the absence of direct evidence concerning the contested issues, the circumstantial evidence that was adduced was capable of supporting the inferences that were drawn. Once the trial judge accepted the expert evidence that the insured's stroke was caused by a dissection, that investigations had not uncovered any predisposing factors for the dissection, that most if not all dissections that [page642] are not related to predisposing factors are caused by arterial trauma, that the probability of trauma is related to sudden movement in the neck, and that the presence of stroke symptoms during the basketball game was consistent with the stroke occurring during the game, it was reasonable for him to conclude that it was likely that t he insured turned his neck during the basketball game in a manner that resulted in a dissection. The trial judge did not reverse the burden of proof.

Per Borins J.A. (dissenting): The trial judge erred in finding that the injury sustained by the insured that fell within the risk assumed by the insurer was an arterial dissection rather than a stroke. The issue was whether the insured's stroke as a result of the arterial dissection was an accident, and not whether the dissection was an accident. As a result of the trial judge's misinterpretation of the language of the policy, the question of whether the insured's stroke caused by the arterial dissection was accidental went unexplored. If the trial judge was correct in identifying the dissection as the injury, he erred in the application of the expectation test. The trial judge also made a palpable and overriding error in his understanding and interpretation of the expert medical evidence relating to whether the cause of the arterial dissection occurred while the insured was engaging in a basketball game.

APPEAL from a judgment of Ferguson J., reported at (2003), 2003 49324 (ON SC), 65 O.R. (3d) 58, [2003] O.J. No. 2228 (S.C.J.), awarding the insured a benefit payable under a disability insurance policy.

Martin v. American International Assurance Life Co., [2003] 1 S.C.R. 158, 223 D.L.R. (4th) 1, 301 N.R. 127, [2003] 6 W.W.R. 1, [2003] I.L.R. ÂI-4171, 2003 SCC 16, 12 B.C.L.R. (4th) 201, [2003] S.C.J. No. 14; Voison v. Royal Insurance Co. of Canada (1988), 1988 4736 (ON CA), 66 O.R. (2d) 45, 29 O.A.C. 227, 53 D.L.R. (4th) 299, [1988] I.L.R. Â1-2358 (C.A.), apld Other cases referred to Columbia Cellulose Co. v. Continental Casualty Co. (1964), 1964 630 (SCC), 42 D.L.R. (2d) 401, [1964] I.L.R. para. 1-119 (S.C.C.), affg (1963), 1963 476 (BC CA), 40 D.L.R. (2d) 297, 43 W.W.R. 355, [1963] I.L.R. para. 1-106 (B.C.C.A.); Leontowicz v. Seaboard Life Insurance Co. (1984), 1984 ABCA 346, 58 A.R. 66, 16 D.L.R. (4th) 95, 36 Alta. L.R. (2d) 65, 8 C.C.L.I. 290 (C.A.) [Leave to appeal to S.C.C. refused [1985] 1 S.C.R. ix, 61 A.R. 320n, 36 Alta. L.R. (2d) lxi]; Smith v. British Pacific Life Insurance Co., 1965 91 (SCC), [1965] S.C.R. 434, 51 D.L.R. (2d) 1, 51 W.W.R. 417, [1965] I.L.R. para. 1-138; Stats v. Mutual of Omaha Insurance Co., 1978 38 (SCC), [1978] 2 S.C.R. 1153, 87 D.L.R. (3d) 169, 22 N.R. 91; Wang v. Metropolitan Life Insurance Co. (2004), 2004 21269 (ON CA), 72 O.R. (3d) 161, 242 D.L.R. (4th) 598, [2004] I.L.R. para. I-4330, [2004] O.J. No. 3525 (C.A.)

James M. Regan, for appellant. Michael F. Head, for respondent.

SIMMONS J.A. (ABELLA J.A. concurring): --

I. Overview

[1] American Home Assurance Company ("American Home") appeals against the judgment of Ferguson J. dated June 2, 2003, awarding Philip Guillet $200,000 as the benefit payable under a disability insurance policy. [page643]

[2] In 1998, Mr. Guillet suffered a stroke that resulted in permanent disability on his right side. American Home's disability policy covers "bodily injury caused by an accident". The main issue on appeal is whether the trial judge made a palpable and overriding error in determining that Mr. Guillet's stroke was caused by trauma to the arterial wall when Mr. Guillet turned his neck while playing basketball. For the reasons that follow, I would dismiss the appeal.

II. Background

[3] On March 28, 1998, Mr. Guillet, a 33-year-old elementary school teacher, collapsed while running during a basketball game. After he fell, Mr. Guillet could not speak, raise himself from the floor or move his right side. It was later determined that Mr. Guillet suffered an ischemic stroke in which blood stopped flowing to his brain via his left internal carotid artery. The trial judge found that Mr. Guillet's right upper and lower limbs were permanently affected as a result of the stroke.

[4] Mr. Guillet did not testify at trial and it was agreed that he has no recollection of the incident. Three witnesses who were present at the game (the referee and two of Mr. Guillet's teammates) gave evidence about the course of the game and the events leading up to Mr. Guillet's collapse. Mr. Guillet's two teammates did not agree on the precise sequence of events that preceded Mr. Guillet's collapse. However, the trial judge found that Mr. Guillet was likely involved in rebound activity in his own end of the basketball court shortly after the half-time break, and that Mr. Guillet collapsed while running down the floor toward the opposing team's basket. The trial judge also found that "there was probably no external trauma or force applied to [Mr. Guillet's] body."

[5] In his reasons for judgment, the trial judge gave a helpful overview of some of the relevant medical terms and anatomy. The trial judge noted that blood flows upward to the head via the common carotid arteries on either side of the neck. On each side, the common carotid artery bifurcates into two vessels at a point just above the jaw; the external carotid artery carries blood to the face and the internal carotid artery flows upward to the brain.

[6] As for the cause of the stroke, the trial judge observed that, "[b]y the time of trial it was the opinion of all the expert witnesses that the stroke originated with a dissection of the left internal carotid artery". The trial judge explained that a dissection occurs when blood enters between the layers of an artery wall, causing the inner layer of the artery wall to move into the lumen (internal canal) of the artery, and to interfere with blood flow. [page644]

[7] In addition, the trial judge said that, "there was also a thrombus or clotting of blood in this case." He noted that two possible explanations were provided for the thrombus: (i) it may have started at the site where the blood entered the artery wall because of the damage to the artery wall; or, (ii) it may have started in the lumen because the dissection blocked the blood flow and the [dammed] up blood between the heart and the dissection therefore coagulated.

[8] Mr. Guillet's claim arises under a group accident policy issued by American Home to Mr. Guillet's employer. The policy provides that American Home "shall pay an indemnity . . . if an Insured Person sustains a loss . . . resulting from injury". Under the policy, "[i]njury" means "bodily injury caused by an accident and resulting directly and independently of all other causes".

[9] Relying on Martin v. American International Assurance Life Co., 2003 SCC 16, [2003] 1 S.C.R. 158, 223 D.L.R. (4th) 1 and Voison v. Royal Insurance Co. of Canada (1988), 1988 4736 (ON CA), 66 O.R. (2d) 45, 53 D.L.R. (4th) 299 (C.A.), the trial judge held that deliberate acts of ordinary living (such as turning one's neck during a basketball game) can fall within the definition of an accident under the policy, and that the question of whether such an act is an accident within the meaning of the policy will depend on whether or not the insured expected that the resulting injury would be a consequence of his act.

[10] Most significantly, the trial judge found that "during the basketball game the plaintiff likely turned his neck vigorously on a number of occasions during rebounds, when changing directions and when looking for action in various parts of the court" and that "the dissection was probably caused by trauma to the arterial wall resulting from a twisting of [Mr. Guillet's] neck". He said that although Mr. Guillet intended to turn his neck during the basketball game, "[h]e had no previous health issues related to his arteries" and that "no non-medical person would reasonably expect the turning of the neck to cause injury to the wall of the artery". The trial judge accordingly found that Mr. Guillet's injury was caused by accident within the meaning of the policy, and made further findings relating to the benefit to which Mr. Guillet is entitled based on the disability that he determined Mr. Guillet suffered.

[11] Although American Home raised several issues relating to the trial judge's interpretation of Martin, its position during oral argument focused on two issues. First, it asserted that the trial judge made a palpable and overriding error in finding that Mr. Guillet's stroke was caused by trauma to the arterial wall when he turned his neck during the basketball game, as opposed to [page645] being of spontaneous (or idiopathic) origin. Second, it submitted that there is no coverage under the policy for injuries with no known cause. [See Note 1 at the end of the document]

III. Analysis

[12] I find it unnecessary to address American Home's submission that there is no coverage under the policy for injuries with no known cause, as I reject its contention that the trial judge made a palpable and overriding error in finding that Mr. Guillet's stroke was caused by trauma to his arterial wall when he turned his neck while playing basketball. As I will explain more fully below, in my view, the evidence adduced at trial amply supported the trial judge's findings and I see no basis for interfering with them.

(i) The appellant's submissions that the trial judge misinterpreted Martin

[13] Before considering whether the trial judge made a palpable and overriding error, I wish to comment briefly on the appellant's submissions that the trial judge misinterpreted Martin. I found the appellant's submissions concerning the trial judge's interpretation of Martin to be without merit. The appellant submitted that Martin should be interpreted narrowly and restricted to its own facts, and that the trial judge erred in holding that Martin overruled the following line of authorities: Columbia Cellulose Co. v. Continental Casualty Co. (1963), 1963 476 (BC CA), 40 D.L.R. (2d) 297, 43 W.W.R. 355 (B.C.C.A.), affd (1964), 1964 630 (SCC), 42 D.L.R. (2d) 401, [1964] I.L.R. para. 1-119 (S.C.C.); Smith v. British Pacific Life Insurance Co., 1965 91 (SCC), [1965] S.C.R. 434, 51 D.L.R. (2d) 1; and Leontowicz v. Seaboard Life Insurance Co. (1984), 1984 ABCA 346, 58 A.R. 66, 16 D.L.R. (4th) 95 (C.A.), leave to appeal to S.C.C. refused [1985] 1 S.C.R. ix, 61 A.R. 320n.

[14] Martin involved a physician who died from a drug overdose caused by a self-inflicted intravenous injection of demerol. The level of demerol found in the physician's blood was at the low end of the range for lethal doses but the British Columbia Court of Appeal determined that the physician had not intended to give himself a potentially lethal dose. In these circumstances the Supreme Court of Canada confirmed that the physician's death was "not 'non-accidental' merely because . . . a mishap was reasonably [page646] foreseeable in the sense used in tort law". Rather, "[t]he pivotal question [was] whether the insured expected to die".

[15] The appellant submitted that this case is distinguishable from Martin because Martin involved a specific event capable of amounting to an accident, and the sole issue was whether the event could be categorized as an accident where it was the result of deliberate actions. By way of contrast, assuming the trial judge's factual findings are correct, this case involves nothing more than ordinary acts of living, which do not constitute an event and are not capable of amounting to an accident within the meaning of the policy.

[16] I do not accept the appellant's submissions that Martin should be read in the manner suggested. However, even if the appellant were correct in submitting that Martin should be interpreted narrowly, this court has already determined that deliberate acts of ordinary living can constitute an accident.

[17] In Voison, the plaintiff suffered an occlusion of the anterior spinal artery when he assumed an awkward position and extended his neck while remodelling his house. In determining that the plaintiff's injury was an accident within the meaning of his insurance policy, this court said the following at pp. 49-51 O.R.:

Recovery under a policy insuring against accidental injury is not necessarily confined to cases where there is "an accident" in the sense of an antecedent mishap from which the injury results or where injury results from circumstances which can be separately visualized and described as "an accident". An injury may be regarded as accidental where an insured engages in a voluntary act not intending to cause himself harm and the consequent harm could not reasonably have been foreseen or expected. Where, for instance, an insured voluntarily subjects his body to stress, strain or exertion and suffers injury as a result, it is difficult to visualize a separate or external event preceding the injury which could be classified as "an accident". The fact that the injury happened through the insured's own act does not, however, necessarily prevent it from being an accidental injury. Where the injury is unforeseen, unexpected and without design, and not likely to result naturally or ordinarily from the voluntary or intentional act, but rather constitutes an unusual result, it may be said that it is an accidental injury.

Counsel for the parties presented a number of . . . cases in support of their respective positions. These decisions, however, are in the final analysis dependent on the construction of the specific wording of the insuring policy and its application to a particular factual situation. It is difficult to extract principles of general application from them and I would make reference to only two decisions which seem to me particularly apposite. In each of them the insured, like the plaintiff in this case, received an unexpected and unforeseeable injury as a result of an intentional, normal and everyday activity, and the loss was none the less held compensable under the terms of similar personal accident policies.

(Emphasis added) [page647]

[18] In this case, the trial judge found that the Mr. Guillet turned his neck vigorously during the course of a basketball game, that the dissection to Mr. Guillet's arterial wall "was probably caused by trauma to the arterial wall resulting from a twisting of the . . . neck", and that "no non-medical person would reasonably [have] expect[ed] the turning of the neck to cause injury to the wall of [Mr. Guillet's] artery". In my view, these findings amount to a determination that Mr. Guillet suffered an injury that was "unforeseen, unexpected and without design" as a result of "subject[ing] his body to stress, strain or exertion" during the course of "an intentional, normal and everyday activity" and fall squarely within this court's conclusions in Voison. [See Note 2 at the end of the document]

[19] The appellant also submitted that the first emphasized portion of the foregoing quotation from Voison supports its position that turning one's neck during a basketball game is not an event that is capable of constituting an accident within the meaning of the policy. I disagree. Read fairly and in context, the emphasized sentence simply introduces the court's conclusion that an injury that is "unforeseen, unexpected and without design, and not likely to result naturally or ordinarily from the voluntary or intentional act, but rather constitutes an unusual result" is capable of constituting an accident.

(ii) The appellant's submissions that the trial judge made a palpable and overriding error

[20] Turning to the question of whether the trial judge made a palpable and overriding error, American Home relies on four assertions:

(i) in the absence of direct evidence of Mr. Guillet's movements during the basketball game, the trial judge erred in concluding that Mr. Guillet turned his neck, as opposed to his body, and further, the trial judge compounded his initial error by finding that Mr. Guillet turned his neck vigorously during the basketball game;

(ii) in the absence of direct evidence that Mr. Guillet actually suffered trauma to the carotid artery wall, the trial judge erred in relying on evidence that turning one's head can [page648] cause arterial damage that could result in a dissection to find that that is what happened in this case;

(iii) in the absence of direct evidence that Mr. Guillet turned his neck or suffered damage to his arterial wall, the trial judge erroneously shifted the burden of demonstrating that the stroke was not the result of natural causes to the appellant; and

(iv) the trial judge ignored evidence that the dissection may have occurred up to 24 hours prior to the onset of stroke symptoms.

[21] I do not accept the appellant's submissions. In my view, when examined in totality and in the context of the whole of the evidence, the trial judge's findings are amply supported by the circumstantial evidence that was presented at trial. Moreover, it is clear from his reasons that the trial judge considered the evidence that the dissection may have occurred up to 24 hours prior to the onset of stroke symptoms.

(a) The evidence presented at trial

[22] In order to assess the appellant's submission that the trial judge made a palpable and overriding error, it will be helpful to briefly review the evidence that was presented at trial.

[23] Three doctors gave expert evidence concerning the possible cause(s) of Mr. Guillet's stroke, Drs. Chew and Simons for Mr. Guillet, and Dr. Berry for the appellant. Dr. Chew testified that very often, dissections are described as "spontaneous" or "idiopathic" because doctors are unable to determine their precise cause. He said that various retrospective studies have identified certain characteristics of artery walls as suggesting a predisposition for a dissection, but that 75 to 80 per cent of dissections were not explained by arterial disorder and were therefore called spontaneous.

[24] Dr. Chew said that the term "traumatic dissections" originated with cases involving visible injuries, but that a recent prospective study indicated that the vast majority of dissections "were related to simple torsion or rotation of the neck". In cross-examination, Dr. Chew explained that while retrospective studies consist of a review of existing case histories of former patients, prospective studies deal with current patients and allow researchers to obtain desired information through fresh histories.

[25] Dr. Chew testified that the recent prospective study to which he had referred revealed that almost all of the patients [page649] with dissections that were unexplained by arterial pathology had some form of rotational or rapid neck movement preceding the onset of symptoms. The extent of neck rotation followed a continuum, ranging from relatively minor incidents of movement to incidents that were "seemingly much more apparent in terms of the way the neck is moved". Some examples included swinging a golf club, playing a game of volleyball and having a coughing fit.

[26] After reviewing the records of the Oshawa Hospital where Mr. Guillet was treated, Dr. Chew concluded that a thorough investigation had been conducted concerning evidence of Mr. Guillet's pre-disposition towards stroke and that no abnormalities that could predispose toward stroke or blood clotting had been found. Further, he testified that subsequent testing indicated that the lumen of Mr. Guillet's left internal carotid artery was patent six months after the stroke, indicating that the vessel was not diseased to begin with in terms of arteriosclerotic change. Dr. Chew explained that they were unable to image the actual site of the blockage. When asked to express an opinion concerning the likelihood that the cause of the stroke was a dissection above the bifurcation of the carotid artery, Dr. Chew said "[g]iven the patient's age and given the circumstances, the history and the onset, a high degree of probability".

[27] Dr. Chew's testimony about the timing of the dissection was somewhat unclear. He confirmed in response to a question from the trial judge that he had used the term "it" in relation to the symptoms of stroke and later agreed with a suggestion by defence counsel that "it" meant the dissection.

[28] However, the essence of Dr. Chew's testimony appears to be that he (Dr. Chew) had played basketball and was familiar with the types of body movements that occur during a basketball game; that, in his opinion, there was a high degree of probability that the dissection occurred during the basketball game; that "the degree of probability . . . occurs with . . . a sudden movement in the neck", that the timing of the onset of symptoms depends "on how long it takes for the lumen to be occluded and the blood flow to stop"; and that, in his view, the timing of the onset of symptoms was consistent with the dissection occurring during the basketball game.

[29] Dr. Simons' testimony related primarily to whether Mr. Guillet's stroke was caused by a dissection. He testified that Mr. Guillet had a blockage of the internal carotid artery distally (farther from the heart) and that there were two main potential explanations. The "vast likelihood" was a carotid dissection. The other option was that Mr. Guillet "threw a clot from his heart" as a result of an abnormality. Because Mr. Guillet had a normal [page650] echocardiogram, Dr. Simons thought a carotid dissection was the likely diagnosis. Dr. Simons explained that he had excluded pre-existing atherosclerotic disease. He also noted that it was impossible to do a carotid ultrasound Doppler study at the site of the dissection. Ultrasound is based on sound waves, and the angle of the mandible bone blocks the sound beyond approximately two centimetres past the bifurcation of the common carotid artery.

[30] In addition, Dr. Simons testified that carotid artery dissections "are usually traumatic". He said, "it is very difficult to get absolute scientific evidence on some of these things but the bulk of expert opinion . . . is that . . . the vast majority, if not all carotid dissections, are traumatic at some point". He added that in "the vast majority . . . about 80 percent . . . there's a pretty good history of trauma, sometimes severe, sometimes moderate, and the feeling is that in the spontaneous dissection, the trauma can be extremely trivial".

[31] In cross-examination, Dr. Simons agreed that he had stated in his medical report that the most likely diagnosis was spontaneous dissection, which means no identified cause. He also agreed that that diagnosis can occur in up to 44 per cent of cases. However, he testified that he regretted using the word spontaneous.

[32] Dr. Simons said there is no hard scientific evidence that one can look at to actually prove causation one way or the other and that it is an area of expert opinion. When asked by the trial judge whether he was referring to injury to the artery wall when he spoke about trauma causing dissection, Dr. Simons explained that trauma means the application of kinetic energy or force to something. In response to a follow-up question from defence counsel concerning whether he was referring to direct trauma in his medical report, Dr. Simons said, "no . . . [a] vigorous basketball game, any sort of trauma".

[33] Dr. Berry testified that two lines of diagnostic reasoning were available concerning Mr. Guillet, who presents as an example of a common condition in clinical neurology, i.e. a young adult (under the age of 50) stroke patient. Dr. Berry said that no cause is ever identified in 44 per cent of such patients (this condition is referred to as the unknown carotid occlusion). In the other 56 per cent of young patients, various conditions, such as arteriosclerosis or cardiac embolus are usually identified. In Mr. Guillet's case, all of these conditions were looked for and none were identified. Accordingly, the second possible line of diagnostic reasoning, which applies to about 13 per cent of such patients, is dissection of the carotid artery.

[34] Dr. Berry testified that his initial conclusion was that Mr. Guillet's "probable diagnosis was that of the common experience, [page651] the thrombosis of an internal carotid artery in a young person with no apparent cause". However, after reading the reports of the respondents' experts (Drs. Chew and Simons), he agreed that dissection was the probable cause.

[35] Dr. Berry disagreed with the opinion expressed by the respondents' experts that the majority of carotid dissections are caused by trauma. He testified that the general medical view is that "there is no established cause for most [dissections]". He said that where a cause can be established, the causes include blunt trauma, severe head and neck injuries, a variety of sports injuries, abnormalities or diseases of the arterial wall, connective tissue disorders, inflammation, arthritis, aneurysm and a type of enzyme protein deficiency. However, the most common cause is no known cause.

[36] Dr. Berry also expressed the view that, where a dissection occurs, delay is usual. He said that it would be hours after the dissection before the neurologic signs appear and that the patient would have pain over the neck. He testified that that was the experience of a number of clinicians, including the clinicians who conducted the prospective study to which Dr. Chew referred.

[37] Finally, Dr. Berry testified that he had looked in the National Library of Medicine database and could locate no report of injuries to basketball players leading to a carotid artery dissection. Dr. Berry said that in his view, it was speculative to suggest that turning or twisting the neck during a basketball game somehow caused Mr. Guillet's dissection.

[38] In cross-examination, Dr. Berry testified that there were two possible mechanisms for the formation of Mr. Guillet's blood clot: first, the clot could form over the tear in the arterial lining, and second, it could form because of the blood not flowing as a result of the occlusion caused by the dissection. He said that heaping up of blood could well take days and still be soft. Although he agreed that individuals are more likely to turn their necks excessively when it involved in a vigorous game, he said that can also occur during any number of daily activities such as running, backing up, looking up or taking something off of a shelf.

[39] The bulk of the evidence concerning what happened during the basketball game was given by Mr. Guillet's teammates. Neither gave evidence concerning specific actions or movements on the part of Mr. Guillet. Rather, their evidence involved a general description of what happened during the game, the nature of the sport, and the usual activities that form part of a basketball game.

[40] Mr. Rudkins said Mr. Guillet was a centre forward who saw his role as playing inside, rebounding and guarding larger players. He said Mr. Guillet collapsed in their offensive end after [page652] being involved in rebound activity on defence. In cross-examination, Mr. Rudkins indicated that he would have been watching the play rather than looking at Mr. Guillet. However, he said that following a defensive rebound, the players would generally make sure the ball was taken care of and then turn and run towards the opposite end of the court. The person with the ball would usually be a guard, who would be looking to pass the ball, and the forwards would look back while running down the court to see if they were going to receive a pass. He said he was sure that Mr. Guillet would have turned both his neck and his body while looking for a pass. He saw Mr. Guillet "kind of turn and [look] for the ball". When he next looked back, Mr. Guillet had collapsed.

[41] Although he described basketball as a non-contact game, Mr. Deleo said Mr. Guillet was a power forward who usually played under the basket. Play under the basket is fairly physical, because it involves big bodies jockeying for position and trying to get the rebound. He said that during the game, he noticed Mr. Guillet stumble and fall as their team was returning to defence, after scoring on a quick break, following rebound activity in their own end. When asked in cross- examination whether there is a lot of head movement and turning of the head during a basketball game, Mr. Deleo responded, "well, of course".

[42] Mr. Guillet's sister also gave evidence at trial. She testified that Mr. Guillet and his wife separated in July 2000, and that apart from basketball, the only other sport Mr. Guillet had played, as an adult, was recreational hockey.

(b) The trial judge's findings concerning causation

[43] The trial judge accepted the evidence of Dr. Chew and Dr. Simons that the majority, if not all, dissections that are not related to pre-disposing factors are caused by trauma. He also accepted Dr. Chew's opinion that the dissection likely occurred during the basketball game and said that he inferred from Dr. Simons' testimony that Dr. Simons shared that opinion. In addition, the trial judge reasoned that the basketball game was the only vigorous activity associated in time with the onset of symptoms and said, "it is logical that a vigorous activity involving neck turning is more likely to cause trauma to the artery than less vigorous activities of daily living."

[44] At para. 55 of his reasons the trial judge concluded, based on "the evidence as to the activity in this particular game and on the basis of the normal activity involved in playing basketball", that Mr. Guillet "likely turned his neck vigorously on a number of [page653] occasions during rebounds, when changing directions and when looking for action in various parts of the court". Further, the trial judge said, "[b]ased on the evidence of what happened at the basketball game and these expert opinions I find that the dissection was probably caused by trauma to the arterial wall resulting from a twisting of [Mr. Guillet's] neck during one or more of his actions during the rebound and his return down the court".

[45] The trial judge rejected Dr. Berry's opinion that "there is no established cause for most [dissections]". The trial judge relied on the fact that Dr. Berry had deferred to Dr. Simons' opinion concerning the cause of the stroke. The trial judge concluded that Dr. Chew and Dr. Simons had done a more thorough job of researching the literature relating to dissections and that they were more informed of the current consensus of the experts on that subject.

[46] The trial judge also relied on Dr. Chew's analysis concerning the timing of the dissection. He noted that Dr. Chew and Dr. Simons produced the article indicating that most patients experienced strokes within 24 hours of a dissection but were not cross-examined on Dr. Berry's theory that a delay in the onset of symptoms of stroke following a dissection was customary. He concluded that Dr. Berry believed that there were no circumstances in this case that permit an analysis of the specific timing of the dissection, but rejected that opinion based on his view that the circumstances are sufficient to permit an analysis. Finally, the trial judge noted that while there was no direct evidence of arterial trauma, he was satisfied that Mr. Guillet could not have played the basketball game without turning his neck and relied on the opinion of Mr. Guillet's experts that turning one's head during a basketball game can cause arterial damage resulting in a dissection.

(c) Analysis concerning whether the trial judge made a palpable and overriding error

[47] In my view, the appellant's submissions relating to the trial judge's findings arise in large measure from the fact that there was no direct evidence at trial concerning three issues: first, direct evidence concerning Mr. Guillet's neck movements during the basketball game; second, direct evidence from Mr. Guillet concerning whether he experienced significant neck pain during the basketball game or on any occasion prior to the basketball game; and third, direct evidence of the results of observing the arterial wall at the site of the dissection. In effect, the appellant contends that, in the absence of direct evidence, it was [page654] not open to the trial judge to conclude that Mr. Guillet turned his neck vigorously during the basketball game and that Mr. Guillet's actions caused arterial trauma.

[48] I disagree. Given that Mr. Guillet was incapable of testifying and that the Doppler ultrasound could not image the site of the dissection, no adverse inference arises from Mr. Guillet's failure to lead direct evidence. This is a case in which direct evidence on the issues in dispute was simply not available. The absence of direct evidence is therefore a neutral factor. The sole issue is whether, in the absence of direct evidence concerning the contested issues, the circumstantial evidence that was adduced was capable of supporting the inferences that were drawn. In my view, considered as a whole, rather than on a piecemeal basis, the circumstantial evidence was sufficient.

[49] On the record before him, it was open to the trial judge to accept the evidence of Dr. Simons and Dr. Chew that the majority, if not all, dissections that are not related to pre- disposing factors are caused by arterial trauma and to find that it was likely that Mr. Guillet's dissection occurred during the basketball game. The trial judge gave cogent reasons for preferring the evidence of Mr. Guillet's experts to the evidence of Dr. Berry concerning the causes of dissections. The trial judge's conclusion that "it is logical that a vigorous activity involving neck turning is more likely to cause trauma to the artery than less vigorous activities of daily living" was a reasonable inference based on Dr. Chew's evidence that there was a high degree of probability that the dissection occurred during the basketball game and that "the degree of probability . . . occurs with . . . a sudden movement in the neck". Even if the inference that Dr. Simons shared Dr. Chew's opinion that the dissection likely occurred during the basketball game was somewhat of a stretch, Dr. Chew's opinion concerning timing was capable of standing on its own.

[50] Accordingly, once the trial judge accepted the expert evidence that Mr. Guillet's stroke was caused by a dissection, that investigations had not uncovered any predisposing factors for Mr. Guillet's dissection, that most if not all dissections that are not related to predisposing factors are caused by arterial trauma, that the probability of trauma is related to sudden movement in the neck, and that the presence of stroke symptoms during the basketball game was consistent with the stroke occurring during the game, it was reasonable for the trial judge to conclude that it was likely that Mr. Guillet turned his neck during the basketball game in a manner that resulted in a dissection. Dr. Chew's testimony to the effect that the probability of trauma is related to sudden movement in the neck, when combined with the evidence [page655] of Mr. Guillet's teammates concerning the likelihood that he turned his neck during the basketball game and the evidence that the timing of the stroke symptoms was consisten t with the dissection occurring during the game, were sufficient to permit an inference, on a balance of probabilities, that Mr. Guillet turned his neck during the game in a manner that caused the dissection.

[51] I note as well that the appellant led a considerable portion of the evidence that supported the inference that Mr. Guillet turned his neck during the basketball game during the cross-examination of Mr. Guillet's teammates. Undoubtedly, the appellant adduced this evidence because of its contention that deliberate acts of ordinary living are not capable of amounting to an accident and to counter the suggestion in one of Dr. Chew's reports that the dissection may have been caused by direct trauma. However, having chosen to lead evidence directed towards an inference that Mr. Guillet likely turned his neck during the game in a manner that could cause a dissection, in my view, it is not open to the appellant at this stage to contest the trial judge's finding that Mr. Guillet turned his neck vigorously during the game.

[52] I conclude that the circumstantial evidence that was adduced in this case was sufficient to support the inferences drawn by the trial judge. I therefore reject the submission that the trial judge reversed the burden of proof. Finally, I note that in his reasons the trial judge referred specifically to Dr. Berry's opinion that a delay in the onset of stroke symptoms was usual following a dissection. I would not therefore give effect to any of the appellant's submissions.

IV. Disposition

[53] Based on the foregoing reasons, I would dismiss the appeal with costs to Mr. Guillet on a partial indemnity basis fixed at $7,500 inclusive of disbursements and applicable GST.

BORINS J.A. (dissenting): --

I

[54] I have had the opportunity to read the draft reasons of Simmons J.A. dismissing this appeal. On the basis of the decision of this court in Wang v. Metropolitan Life Insurance Co. (2004), 2004 21269 (ON CA), 72 O.R. (3d) 161, [2004] O.J. No. 3525, I would allow the appeal. In Wang, Charron J.A. writing for the majority, interpreted an accidental death benefit provision in an insurance policy similar to the [page656] accidental death and dismemberment provision that is central to this appeal. In my view, Charron J.A.'s interpretation of the accidental death provision in Wang, together with her explanation of Martin v. American International Assurance Life Co., 2003 SCC 16, [2003] 1 S.C.R. 158, 223 D.L.R. (4th) 1, is determinative of this appeal. Unlike Simmons J.A., I do not agree that because Charron J.A. did not consider this court's decision in Voison v. Royal Insurance Co. of Canada (1988), 1988 4736 (ON CA), 66 O.R. (2d) 45, 53 D.L.R. (4th) 299 (C.A.) it is unnecessary to consider Wang i n deciding this appeal.

[55] Simmons J.A. describes the main issue in this appeal to be "whether the trial judge made a palpable and overriding error in determining that Mr. Guillet's stroke was caused by trauma to the arterial wall when Mr. Guillet turned his neck while playing basketball". With respect, I would state the issue differently. On the basis of a proper construction of the insurance policy, the issue is whether the stroke sustained by the insured was caused by an accident. As I will explain, my colleague's characterization of the issue on appeal results from the trial judge's error in interpreting the language of the policy. In addition, in my view the trial judge made a palpable and overriding error that undermines his factual findings in his understanding of the expert medical evidence concerning the length of time before a dissection of the carotid artery would normally result in neurological symptoms. As the underlying facts are described in the reasons of Simmons J.A., I will not repeat them.

II

[56] The respondent, Mr. Guillet, was insured by a group accidental death and dismemberment policy obtained by his employer, the Durham Region Roman Catholic Separate School Board. The policy is very basic in its language, providing a fixed indemnity in respect to the risks listed in a "Table of Losses". The indemnity claimed by the insured is for the risk described as hemiplegia.

[57] Coverage is described in Section III of the policy as follows:

Accidental Death and Dismemberment Indemnity

The Company shall pay an indemnity determined from the Table of Losses if an Insured Person sustains a loss stated therein resulting from injury, provided that . . . .

(Emphasis added)

None of the subsequent provisos is relevant to this appeal. [page657]

[58] "Injury" is defined in Section II, Part A of the policy as follows:

DEFINITION OF INJURY AND SCOPE OF COVERAGE

"Injury" wherever used in the policy means bodily injury caused by an accident and resulting directly and independently of all other causes in loss covered by the policy, provided such injury is sustained by the Insured Person. . . .

(Emphasis added)

As with coverage, none of the provisos is relevant to this appeal. "Accident" is not defined.

[59] Reading together the coverage and the definition of "injury", the insurer is required to pay an indemnity, if an insured person sustains a loss resulting from bodily injury caused by an accident (emphasis added). In this appeal, the insured's loss is the indemnity to be paid for the risk described in the Table of Losses as hemiplegia. The hemiplegia resulted from the stroke suffered by [the] insured. The stroke is the "bodily injury" within the meaning of the policy. Therefore, the issue is whether the insured's stroke was "caused by an accident".

III

[60] In Wang, Stacy Chiu Lin was insured under a policy of life insurance containing an accidental death benefit rider that provided additional insurance if she were to die as a result of an accident. She died from an amniotic fluid embolism that occurred during childbirth. The insurer contended that the accidental death benefit was not payable because Mrs. Lin had not died from an accident, but from an embolism, which is a natural cause, and also because the rider specifically excluded death caused or contributed to by an illness.

[61] The life insurance policy provided for base coverage of $480,000 and an accidental death benefit of $200,000. The accidental death benefit rider read, in part, as follows:

This rider provides additional insurance if the insured dies from an accident.

If we receive proof that the insured died, directly and independently of all other causes, as a result of an accident, we will pay under this rider:

Risks not Covered - No payment will be made if the death:

2. Is caused or contributed to, directly or indirectly, by physical or mental illness or treatment for the illness.

(Emphasis added)

As in this case, "accident" was not defined in the policy. [page658]

[62] Although the language of the coverage in Wang and the coverage in this case is not identical, it is very similar. In Wang, the issue was whether Mrs. Lin's death from an amniotic fluid embolism was "directly and independently of all other causes, as a result of an accident". In this case, the issue is whether Mr. Guillet's stroke from a dissection of his left internal carotid artery was "caused by an accident and resulting directly and independently of all other causes". Thus, the parallel issue in each case was whether the occurrence that triggered coverage was accidental -- accidental death in Wang and accidental injury in this case.

[63] In Wang, the insurer contended that as Mrs. Lin died from the embolism, her death was from natural causes and, therefore, was not accidental. In this appeal, in oral argument, one of the positions taken by the insurer was that Mr. Guillet's stroke was the result of natural causes and, consequently, it was not accidental. As "accident" is not defined in the policy, it urged the court to give the word its ordinary and popular meaning.

[64] In Wang and in this appeal, the court below relied on Martin to find that the death and the dissection of the carotid artery, respectively, were accidental. In substance, the motion judge in Wang and the trial judge in this appeal interpreted Martin as establishing a conclusive test for determining whether the mishap in issue, usually death or an injury, was an event expected by the insured. They relied on McLachlin C.J.C.'s analysis of "death by accidental means" in paras. 19-23 of Martin and in particular the following observations: "The pivotal question is whether the insured expected to die" (para. 21); "The expectation test can be applied generally to all cases in which death appears to be accidental . . . . The first question is always 'What did the insured, in fact, expect?'" (para. 23).

[65] In Wang, applying the expectation test, the motion judge concluded that the determining question was whether Mrs. Lin or any reasonable person in her position would have expected to die. Given the rarity of the occurrence of an amniotic fluid embolism, she concluded that there would be no expectation of death, and that consequently, the death was accidental. In this case, in finding that Mr. Guillet's arterial dissection was an accident, the trial judge stated in para. 114 of his reasons:

Applying the Martin approach to our case, I conclude that the injury was caused by accident. I infer that the plaintiff intended to turn his neck during the basketball game but I also infer that he did not expect that action would cause injury to the wall of his artery. He had no previous health issues related to his arteries and no non-medical person would reasonably expect the turning of the neck to cause injury to the wall of the artery. [page659]

As I will discuss, the trial judge not only misinterpreted Martin, he also misinterpreted the language of the policy. It is clear from the above passage that the trial judge considered that the risk or injury covered by the policy was the dissection of the carotid artery, rather than the stroke suffered by Mr. Guillet.

IV

[66] Charron J.A. commenced her discussion of Martin by observing that the parties in Wang did not dispute that the word "accident" was to be given its ordinary and popular meaning as the policy did not define "accident". She made reference to Stats v. Mutual of Omaha Insurance Co., 1978 38 (SCC), [1978] 2 S.C.R. 1153, 87 D.L.R. (3d) 169, in which Spence J. stated at p. 1162 S.C.R.:

The word "accident" found in an insurance policy is to be given its ordinary and popular meaning. There is no technical definition of "accident" to be applied.

At p. 1164 S.C.R., Spence J. continued:

Pigeon J., in Canadian Indemnity Company v. Walkem Machinery & Equipment, supra, adopted Halsbury's words, "any unlooked for mishap or occurrence", and in Fention v. Thorley & Co. Limited, [[1903] A.C. 443.] Lord Macnaghten said at p. 448:

. . . the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.

[67] After observing that McLachlin C.J.C. did not reject the distinction between an accidental death and a death from natural causes, Charron J.A. turned to whether the motion judge, in finding that Mrs. Lin's death was accidental, correctly applied the expectation test. As I have noted, the motion judge based her decision on her conclusion that neither Mrs. Lin nor a reasonable person in her position would have expected to die from an amniotic fluid embolism. In support of the motion judge's reliance on the expectation test, Mr. Wang, who was Mrs. Lin's husband and the beneficiary named in the policy, contended that so long as a death is accidental and unexpected, it is unintended within the meaning of the coverage provided in the accidental death benefits rider.

[68] Charron J.A. rejected this submission. In her view, the application of the expectation test in Martin was based upon the facts of that case. She concluded that the test is confined to cases in which the consequences giving rise to potential coverage flow from the actions of the insured. It is helpful to consider Charron J.A.'s analysis and explanation of Martin found at paras. 23-28 [Wang]: [page660]

In my view, the motions judge's interpretation of the test adopted in Martin ignores both the factual context of that decision and the ordinary person test upon which it is premised. In Martin, the insured was a physician who had developed an addiction to opiate medications for which he was being treated. He had been placed on a program of gradual withdrawal from morphine and Demerol. He was found dead in his office, death having been caused by an intravenous injection of Demerol. The level of Demerol was found to be at the low end of the range for lethal doses. The court found, in looking at the full chain of events, that the insured neither intended nor expected to die and that death was caused by an accidental overdose.

In discussing what constitutes death by "accidental means", the court reiterated the principle in Stats that the word "accident" is "an ordinary word to be interpreted in the ordinary language of the people." The court continued as follows:

[19] Hence, . . . we must focus on the ordinary person's understanding of the phrase, and on "whether in ordinary and popular language the event as it happened would be described as an accident" (para. 26). Only in this way can the reasonable expectations of both the insured and insurer be protected. We must therefore inquire how the phrase "death by accidental means" is used in ordinary language.

[20] As a starting point, we note that the accidental nature of a particular means of death depends, in ordinary parlance, on the consequences that the insured had or did not have in mind. When we speak of an "accidental" means of death, we normally have in mind a situation in which someone's action has had results that this person did not intend or expect. Unintentional or unexpected death is seen as accidental; intentional or expected death as non- accidental.

The court referred to other similar authorities and to a number of cases where the general rule that unexpected death is accidental was applied. The court concluded at para. 23 that "[t]he expectation test can be applied generally to all cases in which death appears to be accidental."

In my view, it is noteworthy that the entire analysis of the Court relates to the consequences flowing from the actions or conduct of an insured [emphasis in original]. Indeed, a good part of the analysis concerns cases where persons engage in risky activities. No reference is made to death resulting from natural causes. The focus of the analysis, as is usually the case, is obviously driven by the factual context of the case, and in that context, it makes eminent sense that "the pivotal question is whether the insured expected to die."

In my view, the expectation test is not appropriate in a case where death results solely from a natural cause. Such a death is not one "in which death appears to be accidental." If we come back to the examples referred to earlier, a person's unexpected death during his or [her] sleep, caused by aneurysm or other condition with fatal consequences, would not be described as an accident in ordinary and popular language. Nor would such an interpretation accord with the reasonable expectations of the parties.

I therefore conclude that the motions judge erred in her legal analysis on this question.

(Emphasis added) [page661]

[69] At paras. 29-30, Charron J.A. concluded that Mrs. Lin's death as a result of an amniotic fluid embolism was not an "accident" within the meaning of the policy:

There is no dispute that Mrs. Lin died as a result of an amniotic fluid embolism. There is also no dispute that this condition, although rare, happens naturally during childbirth. Would an ordinary person describe what happened as an accident? Perhaps only in the figurative sense as a tragic "accident of nature", but in my view, not in the ordinary sense of the word. In respect of this kind of occurrence, I find that the Welford definition of "accident" approved by the Supreme Court of Canada in Smith is still informative. For convenience, I reproduce it again:

The word "accident" involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; an injury caused by accident is to be regarded as the antithesis to bodily infirmity caused by disease in the ordinary course of events.

I therefore conclude that Mrs. Lin's death was not the result of an accident.

[70] As the accidental death benefit was not payable under the terms of the policy if death was "caused or contributed to, directly or indirectly, by physical or mental or treatment for the illness", Charron J.A. was required to consider whether the motion judge was correct in finding that pregnancy was not an illness. She found that the motion judge's analysis of this issue was flawed because she erroneously considered that pregnancy was the cause of Mrs. Lin's death. As Charron J.A. described it in para. 33: "The cause of death was indisputably amniotic fluid embolism." Therefore, the question that the motion judge should have considered was whether an amniotic fluid embolism is an illness. On reviewing the evidence, Charron J.A. found that it is an illness, with the result that Mrs. Lin's death was caused or contributed to by a physical illness within the exclusion contained in the policy.

V

[71] In this appeal, the trial judge devoted a considerable portion of his reasons to reviewing the evidence relating to how Mr. Guillet's stroke occurred. He commenced his review by stating that it was common ground that during a basketball game Mr. Guillet had suffered an ischemic stroke involving a stoppage of the flow of blood through the left internal carotid artery. He said that it was the opinion of all the medical experts that the origin of the stroke was a dissection of the left internal carotid artery. However, there was a contest as to when the dissection occurred, its cause, why a thrombus or blood clot occurred and whether it was the thrombus or the dissection that blocked the flow of blood through the artery. [page662]

[72] The trial judge then considered the expert medical evidence relating to the cause of the dissection and when it occurred. After observing that there was no direct evidence of trauma to Mr. Guillet's neck, nevertheless the trial judge found that he turned his neck during the basketball game. Relying on the opinions of Mr. Guillet's medical experts, he concluded that the "damage to the artery resulting in a dissection" was caused by Mr. Guillet turning his head while playing basketball.

[73] Next, the trial judge considered whether Mr. Guillet's loss was covered by the policy. As I pointed out earlier, the policy provided an indemnity to an insured person who "sustains a loss . . . resulting from injury". This language required the trial judge to determine whether the loss, hemiplegia, resulted from an injury. In finding that it did, the trial judge stated in para. 97:

There is no dispute that the condition of the plaintiff's right limbs [hemiplegia] resulted from a dissection and the consequent blockage of blood flow which caused brain injury, resulting in disability to his right limbs. I find that the initiating injury was the damage to the artery wall, which caused the dissection. Therefore, the loss, hemiplegia, resulted from injury which was the trauma to the artery wall.

(Emphasis added)

[74] As "injury" is defined in the policy as "bodily injury caused by an accident and resulting directly and independently of all other causes", the trial judge was required to determine, as he stated it, whether "the injury [was] caused by accident directly or independently of all other causes". At para. 101, he concluded:

For the reasons above, I have already concluded that the injury was caused directly by trauma to the artery wall and from no other cause.

I pause to note that in both paras. 97 and 101, as well as throughout his analysis of the medical evidence, the trial judge maintained that the "injury" sustained by Mr. Guillet that constituted the risk assumed by the insurer was the dissection of the left internal carotid artery. I will return to this subject.

[75] Finally, the trial judge addressed what he identified as "the main dispute" -- whether the injury, which to his mind was the dissection of the artery, was caused by an accident. It was in this context that the trial judge applied the expectation test discussed in Martin and reached the conclusion that he expressed in para. 114. Although I have reproduced his conclusion in para. 65, for convenience I will repeat it:

Applying the Martin approach to our case, I conclude that the injury was caused by accident. I infer that the plaintiff intended to turn his neck during the basketball game but I also infer that he did not expect that [page663] action would cause injury to the wall of his artery. He had no previous health issues related to his arteries and no non-medical person would reasonably expect the turning of the neck to cause injury to the wall of the artery.

The trial judge repeated his understanding of the holding in Martin in para. 116 where he wrote that "Martin decided that whether [injuries] are accidents will depend on whether or not the insured expected the resulting injury."

[76] The trial judge found support for his conclusion in Voison, to which he noted the Supreme Court did not refer in Martin. In my view, it is unnecessary to deal with Voison. Like all cases in which the court considered whether death or an injury was an accident within the meaning of an accidental death or injury policy, it is confined to its own facts. Although based on its facts, Voison may be of some comfort to the insured, because of the errors made by the trial judge in his legal analysis, which I will outline subsequently, I find Voison to be of no assistance.

[77] I would summarize the trial judge's express or implicit findings as follows:

(1) While playing basketball, Mr. Guillet sustained a dissection of the left internal carotid artery.

(2) The dissection was probably caused by trauma to the arterial wall resulting from Mr. Guillet turning his neck while scrambling for a rebound under the basket before he turned and ran down the basketball court and collapsed with a stroke.

(3) Approximately ten seconds elapsed between the occurrence of the arterial dissection and the onset of the stroke.

(4) As a result of the dissection, the plaintiff sustained a stroke that resulted in hemiplegia of his right limbs.

(5) The dissection was the "bodily injury" that constituted the risk assumed by the insurer.

(6) That the cause of the dissection was a deliberate act of the insured did not prevent his act from being an "accidental" cause of the injury.

(7) Applying the expectation test explained in Martin, the dissection was an accident within the meaning of the policy because the insured did not expect to sustain an arterial dissection from turning his neck while playing basketball. [page664]

VI

[78] In my view, Charron J.A.'s interpretation of the language of the insurance coverage in Wang and her explanation of Martin are helpful in identifying the errors made by the trial judge in his legal analysis of whether the insured in this case sustained an accidental injury. I find that the trial judge erred in finding that the injury sustained by the insured that fell within the risk assumed by the insurer was an arterial dissection rather than a stroke and in the application of the expectation test discussed in Martin. In arriving at this finding, he erroneously considered that the arterial dissection was the cause of the insured's loss, rather than the stroke. In addition, as I will explain, it is my opinion that the trial judge made a palpable and overriding error in his understanding of part of the expert medical evidence that undermines his findings of fact, with the result that his judgment cannot stand.

[79] Applying the language of the insurance policy to the facts, the insured sustained a loss that is described as hemiplegia in the Table of Losses. His loss resulted "from injury", specifically, the ischemic stroke that he suffered while playing basketball. It was the opinion of the medical experts that the stroke "originated with a dissection of the left internal carotid artery". To engage the indemnity provided by the coverage, the insured was required to establish that the stroke which constituted his injury was "caused by an accident and [resulted] directly and independently of all other causes". As in Wang, where the issue was whether the insured's death [as] a result of amniotic fluid embolism was an accident, in this case the issue is whether the insured's stroke as a result of the arterial dissection was an accident, and not, as the trial judge held, whether the dissection was an accident.

[80] Following Charron J.A.'s analysis in Wang, although the trial judge correctly found that the stroke was caused by the arterial dissection, he erroneously considered the dissection, rather than the stroke, as the injury within the risk covered by the policy. Consequently, this resulted in his extensive analysis of whether the dissection was caused by an accident and his application of the expectation test in Martin, when he should have focused on whether the stroke was caused by an accident. As a result of the trial judge's misinterpretation of the language of the policy, the question of whether the insured's stroke caused by the arterial dissection was accidental, went unexplored.

[81] I appreciate, of course, that Charron J.A.'s explanation of Martin in Wang was not available to the trial judge. However, on the basis of this explanation, even if the trial judge had correctly focused on the stroke and the resultant hemiplegia as the risk [page665] covered by the language of the policy, it would not have been open for him to apply the expectation test developed in Martin to the circumstances of this case. This is because the cause of the stroke was the arterial dissection, unlike Martin where the cause of death was the self-administered injection of Demerol. Although there is no evidence in this case that a stroke resulting from an arterial dissection resulted from a natural cause as had the death of the insured in Wang, in my view the insured's stroke is not an event, to adopt the language in Martin, that "appears to be accidental". In my view, it could not be described as an accident in ordinary and popular language. As i n Wang, although in a figurative sense an ordinary person might describe what happened to the insured as a tragic "accident of nature", but not in the ordinary sense of that word. It follows that even if the trial judge had correctly found it was the stroke, rather than the arterial dissection, that was the injury within the risk covered by the policy, he could not have applied the expectation test to determine whether the stroke was an accident. As explained in Wang, the Martin expectation test could not be used to determine whether either the dissection, or the stroke, was caused by an accident.

[82] In this court it was the position of the parties that it was the arterial dissection that caused the stroke. This, quite properly, followed from the trial judge's findings. For the insured to recover under the policy, he was required to prove that the stroke was an accidental injury. However, this question was not resolved at trial. This was because the trial judge misinterpreted the language of the policy when he considered the arterial dissection to be the injury within the risk assumed by the insurer and focused on whether it was an accidental injury within the meaning of the policy. As a result, the trial judge failed to consider whether the stroke caused by the arterial dissection was an accident within the meaning of the policy.

[83] In summary, applying the reasoning of Charron J.A. in Wang, it is my view that the trial judge erred in identifying the arterial dissection, rather than the stroke, as the injury or risk within the meaning of the policy. However, if the trial judge was correct in identifying the dissection as the injury, he erred in the application of the expectation test explained in Martin in finding that the dissection was an accident. Consequently, the trial judgment cannot stand.

VII

[84] Although the foregoing analysis is sufficient to decide the appeal, in the event that my analysis is wrong and the trial judge [page666] was correct in his understanding that the arterial dissection was the injury that constituted the risk assumed by the insurer, I would allow the appeal on the ground that the trial judge made a palpable and overriding error in his understanding and interpretation of the expert medical evidence relating to whether the cause of the arterial dissection occurred while the insured was engaged in a basketball game.

[85] As I have stated, the trial judge found that the insured's injury was an accident that occurred when he turned his neck while playing basketball resulting in trauma causing a dissection of the artery that in turn caused the stroke. There was conflicting medical evidence on whether the arterial dissection could have caused the stroke in the approximate time of ten seconds that elapsed between when the insured would likely have turned his neck and sustained trauma to the artery and when he suffered the stroke. If the medical evidence, properly understood, shows that it is unlikely that this could have occurred within the ten-second time frame, it would mean that whatever caused the arterial dissection occurred prior to the basketball game. Consequently, if the trial judge made an error in understanding and interpreting the medical evidence on what the trial judge referred to as the "timing" of [the] stroke, this would undermine the findings of fact on which he based his judgment.

[86] I do not intend to review in detail the medical evidence on which the trial judge based his findings. Simmons J.A. has referred to much of it in her reasons. On behalf of the insurer, Dr. Henry Berry provided his opinion on the timing of the onset of the insured's stroke following the dissection of his artery, while Dr. Donald Chew testified on this issue for the insured. In my view, the trial judge's approach to this evidence was flawed and amounts to a palpable and overriding error, permitting this court to interfere.

[87] The trial judge, of course, appreciated the significance of the timing of the events giving rise to the insured's stroke that caused the hemiplegia. Essential to the success of the insured's case was a finding that he sustained an accidental injury. His case depended on proving that he sustained trauma to his artery that caused the dissection, and in turn caused him to suffer a stroke, during a very small time period while playing basketball. In particular, he had to prove that he sustained trauma to the artery when he turned his neck while scrambling for a rebound less than ten seconds before he collapsed to the floor with a stroke. This is how the insured's claim was pleaded, presented at trial and argued in this court. Therefore, the timing of the events was crucial. If it was medically impossible for the [page667] stroke to have occurred within this time frame, the dissection of the artery necessarily would have occurred prior to the basketball game, thereby undermining the insured's case and the trial judge's findings.

[88] The medical evidence of the insurer focused on timing. It relied on the highly qualified and widely recognized expertise of the neurologist, Dr. Berry, who opined that where an arterial dissection occurs, delay is usual before neurological damage appears. He testified that it would be hours after the dissection before the appearance of neurological signs. Moreover, the patient would have severe neck pain. Relying on his own experience, that of other clinicians and medical studies, including the study produced by the insured's expert, Dr. Chew, Dr. Berry was of the opinion most patients experience a stroke within 24 hours of an arterial dissection. As well, to him it was speculative to suggest that turning the neck during a basketball game caused the dissection. Thus, on the basis of Dr. Berry's opinion, it was probable that the dissection was caused by some event prior to the basketball game.

[89] The only contrary evidence on this issue came from the insured's expert, Dr. Chew. He was qualified as an expert in neurology to provide evidence about the mechanism of internal carotid dissection and its cause. As I read his testimony, his opinion about the timing of the dissection relative to the occurrence of the stroke appeared almost as a side wind. Dr. Chew, when asked his opinion whether a stroke could occur within a few seconds of an arterial dissection caused by a patient turning his neck while playing basketball, replied that this was possible and that it could even occur within two or three seconds. However, as the following question and answer during Dr. Chew's cross-examination demonstrate, his opinion was wholly discredited:

Q. Now, did I understand your evidence right that the dissection would be two or three seconds from the time [of the stroke]?

A. I said it was an appropriate time frame. I don't know. It could be later. It could be sooner. I don't know.

(Emphasis added)

[90] In my view, Dr. Chew's opinion on the timing issue had no value. This left unchallenged Dr. Berry's opinion on the timing of the stroke. However, the trial judge rejected Dr. Berry's opinion. In paras. 59 and 60, the trial judge gave the following reasons for rejecting Dr. Berry's opinion:

Dr. Berry expressed the view that most patients experienced strokes within 24 hours of the dissection. I took it that he reasoned that therefore there is often or usually a delay between the dissection and the onset of [page668] symptoms and reasoned that therefore there is no basis to say the dissection likely occurred during the basketball game rather than earlier. I believe he used that analysis because he does not believe there are any specific circumstances in this case which can support a finding as to timing. I do not accept his analysis because I accept the opinions of Dr. Simons and Dr. Chew that there are circumstances in this case which permit a specific analysis.

I understood that Dr. Berry based his opinion at least partly on the article, Exhibit 9, which the plaintiff's experts produced. The plaintiff's experts were not specifically questioned on the 24-hour statistic. However, they produced the article and were obviously aware of its content and considered it in forming their opinions. Therefore, I conclude that they have considered the statistic and still conclude that the evidence here indicates that the dissection more likely occurred during the basketball game.

[91] In my view, the trial judge's reasoning is flawed. As I understand Dr. Berry's opinion, it was unqualified. It did not depend on whether he believed that the arterial dissection occurred during the basketball game. Whether or not the insured's experts were questioned on "the 24-hour statistic" provides no reason for rejecting Dr. Berry's opinion on the subject. Nor does the fact that the insured's experts produced an article on which Dr. Berry relied to support "the 24-hour statistic" discredit Dr. Berry's opinion. Moreover, the trial judge failed to consider Dr. Chew's cross-examination in which his opinion on the timing of the stroke had been discredited.

[92] Necessarily, to arrive at the findings of fact that he did, the trial judge had to rely on Dr. Chew's opinion on timing, which he had effectively recanted in cross-examination. In my view, it was unreasonable for the trial judge to accept Dr. Chew's opinion on timing and reject that of Dr. Berry. It is clear that he misunderstood the testimony of these witnesses. In comparing the resumés of Dr. Berry and Dr. Chew, it is clear that Dr. Berry's expertise far surpasses that of Dr. Chew. Indeed, when Dr. Chew was cross-examined about the absence in his resumé of any published articles or papers that he had delivered, he replied that he was a "redneck neurologist" and had not had the time to enter them in his resumé. The trial judge's error in preferring the opinion of Dr. Chew to that of Dr. Berry is based on a misunderstanding of the evidence. It is fatal to the integrity of his findings and provides another reason why the trial judgment cannot stand.

VIII

[93] As I have indicated in the foregoing reasons, the insured's case as pleaded, presented at trial and argued in this court is that while playing basketball he sustained a trauma to his neck that caused a dissection of the left internal carotid artery that within a span of about ten seconds caused him to sustain a [page669] stroke. As I have explained, the trial judge erred in his interpretation and application of the coverage provided by the policy in finding that the dissection was caused by an accident when the question that he should have decided was whether the stroke was caused by an accident. Ordinarily, where the trial judge has failed to decide a relevant issue, a new trial will be ordered. However, in this appeal, there are two reasons why there is no need to direct a new trial. The first reason is that the trial judge found as a fact that the stroke was caused by the dissection. Indeed, this was the unanimous opinion of all the medical experts. This is similar to the circumstances in W ang where the cause of death was the embolism. Based on the trial judge's finding that the stroke was caused by the dissection and applying the reasoning in Wang, the insured would be unable to prove that the stroke was caused by an accident. The second reason is based on Dr. Berry's opinion that it was medically improbable that the stroke could have occurred within the ten- second time span that is central to the insured's case. As this evidence totally undermines the insured's case, no purpose would be served by ordering a new trial.

[94] In the result, I would allow the appeal, set aside the trial judgment and substitute an order that the insured's claim be dismissed with costs. As the parties have agreed to the amount of costs, the insurer will have its costs of the appeal on a partial indemnity basis fixed at $7,500 plus GST.

Appeal dismissed.

Notes

Note 1: In oral argument, American Home did not pursue an issue in its factum concerning the extent of Mr. Guillet's disability and the benefit he was paid. In my view, there [is] sufficient evidence to support the trial judge's findings concerning these issues.

Note 2: This court released its decision in Wang v. Metropolitan Life Insurance Co. (2004), 2004 21269 (ON CA), 72 O.R. (3d) 161, [2004] O.J. No. 3525 (C.A.) after this appeal was heard. However, the majority decision in Wang does not refer to this court's decision in Voison. As noted, in my view, Voison governs the trial judge's findings. I therefore consider it unnecessary to address Wang.