Bankrupty Can’t Escape a Judgment for Sexual Assault

A Recent Success at Court of Appeal

As is often the case in personal injury matters, decisions before the Court are borne out of tragic and unusual circumstances. The case of Economical v. Caughy was certainly nothing less than tragic and unusual. So unusual, that it created an issue of whether Mr. Caughy would be entitled to accident benefits.

Almost four years ago, Patrick Caughy suffered a serious spinal cord injury when he tripped over a parked motorcycle. Patrick Caughy was enjoying a camping holiday with his family and friends at a weekend country music jamboree. The campers created a campsite that was encircled with all of their vehicles and trailers. A motorcycle was also parked at the campsite near Mr. Caughy’s truck. As the first day of the jamboree went on, Mr. Caughy became significantly intoxicated. Later, in the middle of the night, Mr. Caughy began playing tag with one of his daughters and her friend. In the dark of the night and as he rounded his truck, he failed to see the motorcycle and tripped over it. The trip propelled Mr. Caughy into his truck, causing him to end up breaking his neck and suffering a serious spinal cord injury.

Mr. Caughy thought he could rely on his automobile insurance company to assist him on his long road of rehabilitation. After all, he had suffered an injury that was caused by a collision with an automobile and so he applied to his insurer for accident benefits. To Mr. Caughy’s dismay, the insurance company completely denied him. The insurer argued that his injury did not arise as a result of an “automobile accident.”

The legal definition of an automobile “accident” is “an incident in which the use or operation of an automobile directly causes an impairment.” With this definition in mind, it is worthwhile to ask yourself, was Mr. Caughy’s trip over the motorcycle an “automobile accident?” Did his tripping over a parked motorcycle, while impaired and playing tag in the dark, satisfy this legal test? His insurer maintained that it did not.

Nigel Gilby and I were retained by Mr. Caughy and his family to fight for them and secure the accident benefits Mr. Caughy would undoubtedly require. Once our fight was underway, the insurer brought an application before the court to determine that Mr. Caughy was, in fact, not in an automobile accident, and therefore not entitled to accident benefits.

We initially argued the case before Justice Nightingale. The insurance company took the position that because the motorcycle was parked it did not involve its “use or operation” and, therefore, was not involved in an automobile “accident” and no accident benefits were payable. We argued that parking a motor vehicle was an ordinary use to which automobiles are put. Justice Nightingale accepted our arguments and found that Mr. Caughy’s accident was indeed an automobile accident.

However, the insurer did not agree with our argument or the decision of Justice Nightingale and appealed to the Ontario Court of Appeal.

The Court of Appeal agreed with us and adopted our arguments, finding that Mr. Caughy was entitled to accident benefits. In its decision, the Court of Appeal stated: “A vehicle is designed to be parked. Indeed, it is safe to say that most vehicles are parked most of the time. I would conclude, therefore, that parking a vehicle is an ordinary and well known activity to which vehicles are put.”

You might ask: What are some of the implications of this decision? Well, we now have a binding authority from the highest court in Ontario that confirms accident benefits are permissible even when a pedestrian collides with a parked vehicle. With this newfound guidance, we anticipate that entitlement to accident benefits will arise in most circumstances involving injuries sustained by parked automobiles.

There is no question that over the course of the last few years Mr. Caughy’s family has had to endure hardship and make a number of sacrifices, not only in terms of the care they would be able to provide for him but also in terms of replacing the income that he brought into the family unit. As Mr. Caughy’s lawyers, we have been in his corner since day one. In first taking his case and learning of the insurer’s denial of his claim, we realized there would be years that would go by before there was any decision and, if we were unsuccessful, we would never be paid anything for the money we would invest in his case or for the countless hours of time committed to trying to help him. However, it is our view that dedicated lawyers have to take on cases where they can help a victimized person or advance our law for the greater good. They need to take on tough cases; the cases where there isn’t always a guarantee of payment.

Mr. Caughy’s case is also an example of situations where an accident and the circumstances surrounding it might not be so clear. When this occurs, one should not assume there is no hope. It is always worthwhile to consult a skilled personal injury lawyer who knows the law, or, in some cases, will make new law. Fortunately for Mr. Caughy – he did – as otherwise he would have never received any accident benefits for his catastrophic injuries.

Christopher Dawson

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