Slip and fall accident after disembarking vehicle is not related to automobile

Wong and St. Paul Fire and Marine - Definition of Accident; slip and fall occuring few steps from car; insured had completed disembarkation; not a car accident; no accident benefits payable.

May 31, 2011, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: John Wilson
Decision Date: September 30, 2010

Ms. Wong was injured on March 13, 2008. She applied for and was denied statutory accident benefits from the Motor Vehicle Accident Claims Fund ("MVAC Fund").

The preliminary issue was to determine if Ms. Wong was injured as a result of an "accident" as defined in section 2(1) of the Schedule. The following is a summary of the arbitrator’s analysis and decision based upon the arguments presented before him.

EVIDENCE AND ANALYSIS:

On March 13, 2008 Ms. Wong was a was a passenger on a motorcoach owned by AZ Bus Tours, run by TP Tours and insured by St. Paul Fire & Marine Insurance Company on the day that she suffered certain injuries.

She was travelling back to Toronto from Casino Rama early in the morning of March 13, 2008. The bus had a number of drop-off points in Toronto including the parking lot of a Kentucky Fried Chicken ("KFC") outlet on Gerrard Street East, where Ms. Wong intended to leave the bus.

It was early, well before dawn on a cold grey morning when Ms. Wong descended the bus steps past the tour guide, Mr. TL, and began to walk across the parking lot, whose surface, unbeknownst to Ms. Wong, was covered with black ice.

At some point Ms. Wong fell, injuring herself. Counsel for Ms. Wong asserts that there is some dispute as to whether she slipped and fell immediately upon disembarkation, or whether she had begun to traverse the parking lot before she lost her footing and fell. He suggests that the former scenario is more likely what happened.

The manner and timing of Ms. Wong’s fall is crucial in determining whether she is eligible for accident benefits.

Accident benefits are only available to persons whose injuries arise from a motor vehicle accident. Section 2. (1) of the Schedule defines such an accident as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

Ms. Wong alleges that any impairments she suffered as a result of her fall were directly caused by the use or operation of the motorcoach in which she travelled from Casino Rama to Toronto. St. Paul Fire and Marine Insurance claims that she actually suffered a slip and fall on an icy parking lot that was not in the control of the bus operator, and that she was not injured by the use or operation of a motor vehicle.

For Ms. Wong to be entitled to claim statutory accident benefits, she had to satisfy the civil burden of proof, that in falling on the ice in the parking lot she was in an automobile accident.

The insurer made a motion to declare that Ms.Wong did not have an "accident" as defined by section 2. (1) of the Schedule. The arbitrator reviewed historic precedent in this matter and determined St. Paul Fire & Marine Insurance Company had the burden of proving any facts it relied upon in support of their assertion.

Several documents were filed as evidence in this hearing. In addition the insurer called the tour guide, Mr. L, to testify as to the circumstances surrounding Ms. Wong's disembarkation from the bus. Neither Ms. Wong, nor any other witnesses, testified on her behalf.

Although no agreed statement of facts was filed, there was little controversy about the timing and circumstances surrounding Ms. Wong's departure from the motorcoach. The real issue was whether Ms. Wong's slip and fall on the ice of the parking lot arose directly from the use of the motorcoach.

An initial incident report created following the incident noted that at 6:55 a.m. the bus arrived at the designated drop-off point. Mr. L, the tour guide, got off the bus first and "carefully assisted all customers off the bus." Mr. L added:

“While I was helping customers off, Wong Fee Nung (887537) who have already got off from the bus safely, she fell down about about [sic] 3 steps away from the bus. Immediately I went over to help her up and ask whether she is ok. She didn't give me an answer and took off with her taxi which I have prepared for her.”

In a more detailed report dated July 23, 2008, Mr. L elaborated:

“I stand at the bottom of the steps and for those that need assistance I will give them my hand and help them down. I helped that lady down. I gave her my hand and she held it. She was the 3rd person that got off of the bus. I helped her and she stepped off of the bus and on to the ground. She walked away and I continued to help people down. I helped one more person after her from the bus and then I heard a noise. I turned around and the lady that I was just helping down went over to Wong Fee Nung. Where Wong Fee Nung fell was at least a distance of one to two metres away from the door of the bus. She didn't fall her first step down when getting off of the bus. She walked away from the bus and fell in the parking lot of the KFC Restaurant.”

The arbitrator found Mr. L’s testimony credible . The arbitrator noted that Ms. Wong did not testify or offer any evidence that Mr. L was wrong in describing the accident.

The core argument before the arbitrator was whether someone, having stepped off a bus and proceeded "at least a distance of one to two metres away from the door of the bus" before falling, was involved in "an incident in which the use or operation of an automobile directly causes an impairment". Someone may well be responsible to compensate Ms. Wong for her injuries, but in St. Paul Fire & Marine Insurance Company’s position is that it is not its role to do so.

The arbitrator reviewed the significant body of decisions on the issue of compensation in injuries where an automobile may be involved.

The Chisholm decision at the Court of Appeal level (Chisholm v. Liberty Mutual Group 60 O.R. (3d) 776.) provides guidance in differentiating between accidents which were related or coincidental to the use or operation of a motor vehicle and ones where there is a direct causal link between the accident and the use or operation of a motor vehicle.

The arbitrator then examined Ms. Wong’s claim in light of the meaning of ‘direct cause’. He determined that while it may easily be said that ‘but for’ the fact that Ms. Wong was travelling on a motorcoach that fateful morning, she would never have slipped and fallen in the parking lot of the KFC store, this was in itself insufficient to establish direct causation.

Ms. Wong suffered certain injuries in falling on the ice. The Insurer's argument was that the slip and fall which caused Ms. Wong's injuries was an intervening act that took any injuries out of the realm of motor vehicle accident benefits and into the domain of tort and occupier's liability.

If Ms. Wong's fall was the foreseeable result or the last link in a continuous and direct chain of causation from the disembarkation of the motorcoach, then it might be seen as directly caused by the use or operation of a motor vehicle. But the only evidence before arbitrator as to the nature of the fall was Mr. L’s description of the fall. His evidence was basically uncontradicted, and notwithstanding the fact that it could also be self-serving, it was consistent and credible.

Mr. L described a deliberate descent of the stairs from the coach, aided by his arm, with Ms. Wong alighting without distress. There was a separation in distance and time from the disembarkation from the coach and the subsequent slip and fall.

Consequently the arbitrator accepted the St. Paul Fire & Marine Insurance Company’s characterization of the accident as a slip and fall that was not directly connected to her disembarkation from the motorcoach.

While Ms. Wong may rightly question the wisdom of the bus operators letting her off on a dark, icy parking lot, or with KFC for not attending to a potentially treacherous parking lot, those issues are irrelevant in considering whether St. Paul has any liability to pay statutory accident benefits. The arbitrator found that Ms. Wong's injuries did not directly arise from the use or operation of a motor vehicle.

The existence of a motor vehicle accident is a pre-condition for accident benefits.

That being said, in the absence of direct causation from the use or operation of a motor vehicle, there is no basis for Ms. Wong's claim for accident benefits.

Ms. Wong’s application was dismissed.

About Paquette Travers & Deutschmann

Paquette Travers & Deutschmann serve South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Doug O’Toole focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

Accident Benefit Blog

Practice Areas

Personal Injury Blog

Accident Benefit News