Neutral Citation: 2004 ONFSCDRS 123

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FINANCIAL SERVICES COMMISSION OF ONTARIO

Before:

Fred Sampliner

Heard:

May 12 and 13, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Naresh Misir for Mr. Gill

Ralph D'Angelo for Certas Direct Insurance Company

Issues:

Certas Direct Insurance Company ("Certas") denied Mr. Balvir Gill's application for statutory accident benefits, asserting he was not injured in a motor vehicle accident under the Schedule.¹ The parties did not resolve this dispute through mediation, and Mr. Gill applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Was Mr. Gill injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?

Result:

1. Mr. Gill was injured in an "accident" as defined in subsection 2(1) of the Schedule.

EVIDENCE AND ANALYSIS:

The events leading to Mr. Balvir Gill's injuries on April 9, 2002 are certainly unusual, which at first blush might cause some question about whether it is an incident in which the use or operation of his automobile directly caused his impairments, paraphrasing the Schedule's definition. Mr. Gill left work at the usual quitting time in late afternoon, and was driving east in smooth traffic in the collector lanes of Highway 401 in the north part of Toronto, travelling around 100 kilometres per hour. As his car slowed, the left front door of his automobile suddenly opened, and Mr. Gill slid out of the moving car onto the middle lane pavement, with rush hour traffic all about him. He avoided being hit by the oncoming cars, but his unoccupied vehicle careened through traffic and smashed into the guardrail.

Remarkably, Mr. Gill did not sustain major injuries from his initial impact and rollover onto the asphalt. Dazed, he got up almost immediately, ran to the highway edge and catapulted himself over the guardrail down onto Bayview Avenue below. Again Mr. Gill avoided contact with other cars on Bayview, but he suffered multiple broken bones and contusions on impact with the pavement. The entire sequence of events took perhaps a minute.

Eyewitnesses near Mr. Gill's car that afternoon support his submission there was an unbroken chain of events between his rollout onto the pavement and his jump from the bridge. Ms. Annie Kum Seun was driving just behind Mr. Gill's vehicle and saw him exit his car in the way I have described. She immediately drove away from the scene, and did not see him get up. Mr. Matthew Litchfuss was entering Highway 401 at Bayview, and he testified he saw Mr. Gill get up, run and hurdle himself over the guardrail without hesitation or pause in the sequence of events.

In his evidence, Mr. Gill maintained that the car door spontaneously opened, and he fell out while trying to reach and close it. However, there is no evidence supporting Mr. Gill's claim that the door mechanism was defective, and I do not accept his explanation for the cause of this incident.

There is uncontradicted compelling evidence from Mr. Gill's brother that the Applicant suffered a panic attack. Jaswant Gill saw his brother at a factory every workday, and testified that Mr. Gill periodically got drunk, and in 1998 had bolted from a hospital in fear that the nurses were trying to kill him. He also testified that his brother had said at the hospital after the accident that the cars on the highway were trying to kill him, and told police after the accident that Mr. Gill looked sick and disturbed that day at work.

This evidence persuades me that Mr. Gill opened the car door as a result of his own fears that the other cars were trying to kill him. I find that Mr. Gill suffered a panic attack while driving his automobile on April 9, 2002, which directly caused him to exit his car, run to the edge of the highway and leap onto Bayview Avenue.

The oral evidence that Mr. Gill immediately jumped from the bridge establishes that this episode continued in both time and space proximity with the original panic attack. The evidence does not support Certas argument that Mr. Gill hesitated before jumping from the overpass, and I find there was no break in the chain of events between Mr. Gill’s initial panic attack behind the wheel of his car and his injury when he fell onto Bayview Avenue. Even if Mr. Gill had momentarily hesitated at the bridge, my findings would not change because his panic attack while driving was in close continuum with his subsequent injury.

Certas presented no arbitration or court decisions to support its argument that Mr. Gill’s fear was a separate intervening force, that is, something that interferes, prevents or modifies the result or course of events.² Mr. Gill's intrinsic psychological makeup and personal characteristics are easy to distinguish, in my view, from the intervention of a robber who boards a bus to pistol whip a passenger.³

Arbitration decisions recognize the tort principle that insureds may be prone to suffer exceptional adverse reactions, the so-called "thin skull" principal.⁴ I see no distinction between Mr. Gill's response, whether rational or not, to the danger of driving his automobile, and another driver's heart attack or other physical problem that precipitates an otherwise avoidable collision or causes unexpected delays in recovery. Measuring the "normalcy" of a response is simply impractical, and likewise undermines the "thin skull" principle that an insurer underwrites the risk of an insured driver’s inherent characteristics.