For years, judges, lawyers and healthcare experts have struggled with the question of whether or not a motor vehicle accident has caused a person to be disabled. This becomes particularly complicated when a person has been injured in more than one accident. The questions that will affect such decisions in the future include: what actually caused the injury, and when were the benefits “incurred”.
This was most recently demonstrated when the Ontario Court of Appeal delivered its decision in Monk and ING Insurance[1].
Mrs. Monk, a Registered Nurse, was involved in three motor vehicle accidents. As a result of the first accident, she suffered a whiplash type injury to her neck with some numbness in both arms that dissipated and she returned to work. After her second motor vehicle accident, she suffered numbness in both arms. Diagnostic imaging revealed that she had a narrowing of the spinal canal. Despite ongoing difficulties, surgery wasn’t required. She was told, however, that surgery could be a risk in the future if any further deterioration occurred. Mrs. Monk returned to work after her second accident but in a lesser capacity. At this time, ING settled her accident benefits for over $1 million.
Mrs. Monk had a third motor vehicle accident. This she suffered far more significant numbness in her arms. She underwent two surgeries, after which she was left an incomplete quadriplegic. This meant she had movement of all four limbs but had difficulty with those movements. In insurance terms, she had not been “catastrophically impaired” and therefore, her benefits would be terminated after about 3 ½ years. Even when ING conceded that she had been catastrophically injured, they took the position that it was a result of her pre-existing spinal condition and her first two accidents.
Following review of the trial judges decision, the Ontario Court of Appeal determined that the cause should be assessed using the material contribution test as outlined in Athey v. Leonati[1]. This when the Supreme Court of Canada determined that if the accident in question is anything greater than a negligible cause then it is material cause. This means they can prove a causal link.
In Monk, ING Insurance Company argued that even if Mrs. Monk had not been involved in her third motor vehicle accident, she likely would have suffered future deterioration in her condition ending up in much the same circumstances. They cited the “Crumbling Skull Theory” that says when a Plaintiff suffers injuries by the fault of another but the evidence establishes that the person would have likely suffered the same symptoms of pain because of a pre-existing condition, the Plaintiff’s award of damages can be reduced to reflect this reality.
The Ontario Court of Appeal unanimously rejected this argument stating that this theory can only be applied in tort cases (against at-fault parties). The court battle and appeals were lengthy. In the end the Court of Appeal approved the trial judge’s declarations regarding Mrs. Monk’s entitlement to future accident benefits on an ongoing basis.
