Taking His Chances

"I didn't know if he'd live, walk or talk again. We didn't know from one minute to the next if he was going to be there for us or whether he was going to be paralyzed."
Diane Matheson, Perth, Ontario

"I think the only thing that would make it worse is if I got a bill to repair the dent in his truck. He's walking away but I'm getting a bill from the courts. It just seems so wrong."
Arthur Matheson, Perth cattle/sheep farmer

"It has to be harsh in some cases or more people will take chances on insurance. It's kind of done what it's supposed to do, it's just unfortunate people get caught up in it for the wrong reasons."
Daniel Strigberger, Waterloo lawyer specializing in insurance law

Arthur and Diane Matheson had their world turned upside down when Arthur was injured six years ago. The latest court ruling against them means they won't be able to sue the hit-and-run driver responsible.   James Park / Ottawa Citizen

This is a court case that would seem on the surface to be a no-brainer; a man driving an ATV used solely for farm chores, to briefly cross 100 yards between his driveway and a gate into the field where his sheep graze, in the process crossing a rural dirt road. In the spare gulp of time it took for Arthur Matheson to steer his ATV from the driveway to the gate -- 30 seconds or less -- on that concession road, he was hit by a speeding vehicle whose driver made no effort to stop; a hit-and-run.

But there appears the minutiae of a legal interpretation, whether the ATV met the standard definition of a "self-propelled implement of husbandry". A unit considered to be specifically one meant as a piece of farm equipment such as a combine or tractor is exempt from Ontario's Compulsory Automobile Insurance Act. But if this was classified as an off-road vehicle, subject to insurance requirements levied on a car or truck using a  highway his legal case against the driver was null.

The 1986 model Honda TRX 200 was not manufactured specifically as a vehicle meant for farm-related activities. Mr. Matheson had never used his ATV for anything else but that purpose, however. And since he used it solely for that purpose he was under the impression he did not require additional insurance beyond what his farm policy normally covered. In April 2013 Ontario Superior Court Justice Kenneth Pedlar came to the same conclusion.

He ruled that ATVs met the definition of a "self propelled implement of husbandry" as long as used for farm purposes, meaning their drivers would be protected from the "very harsh" civil penalty preventing those without specific ATV insurance from seeking damages in a court of law. Judge Pedlar concluded that the Compulsory Automobile Insurance Act's purpose was to protect innocent victims from some else's negligence.

Six years on, the Court of Appeals has ruled otherwise; ruling that Mr. Matheson would not, after all, be permitted to sue the careless driver who was sent to prison for hitting him and then departing the scene of the accident because it held that farmer Matheson's ATV hadn't been properly insured. His long legal battle for compensation has come to a thudding halt. Not only is he now unable to seek damages for lost income and other benefits, but he must pay the $55,000 legal costs of the other driver, since he has lost his case.

The accident had caused Mr. Matheson to suffer a horrendous brain injury. Doctors thought they might have to amputate a leg that had been badly broken. He suffered fractures to his arm, a rib and vertebrae. Airlifted to the Ottawa Hospital's Civic campus, he is back on his five-generation-family farm trying, at age 56 and still physically handicapped, to manage farm routine. His short-term memory has been permanently impaired.

His shattered leg required a metal plate and pins to bring it to a state where it can still be used; his arm continues to ache, and he must take medication daily for his brain injury. But the Court of Appeal had ruled that Mr. Pedlar had "lost sight of the goal of determining the intent of the legislature" in interpreting what the Compulsory Automobile Insurance Act was enacted to accomplish.

"The legislative means of insurance universal insurance would be rendered nugatory if they were made applicable only to those who cause accidents. The clear legislative intent is that the prospect of not being able to recover damages or statutory accident benefits gives vehicle owners good reason to purchase insurance before any accident has taken place", ruled the Court of Appeal. "The provisions, even if considered 'very harsh', must be enforced."

The ATV, they concluded, though used widely by farmers for work on their farms, was not manufactured, designed, redesigned, converted or reconstructed for a specific farming activity. Mr. Matheson's insurance agent had given his client due warning of the need to insure the ATV should he plan to take it off the farm in its use. At the time, Mr. Matheson had responded that he planned to "take his chances".

Unintended consequences of such a nature when people in all honesty feel they are well prepared to face contingencies and discover otherwise through tragic events, do not, in the event, inspire confidence in the reading of the law.