Applicant tripping and falling after tangling in purse straps is not an “accident” - 18-003869 SB v Aviva Insurance Company of Canada, 2019 CanLII 22211 (ON LAT)

June 07, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant tripping and falling after tangling in purse straps is not an “accident” - 18-003869 SB v Aviva Insurance Company of Canada, 2019 CanLII 22211 (ON LAT)

Date of Decision: February 19, 2019
Heard Before: Amanda Fricot, Adjudicator

WAS IT AN ACCIDENT – purpose test and causation test; applicant was not injured in normal use of the car;

Overview:

SB sustained injuries when she slipped and fell after refuelling her car at a gas station on November 28, 2017. When Aviva denied her application for accident benefits under the SB appealed to the LAT. This is a preliminary issue hearing to determine whether the incident is an “accident” as defined by the Schedule.

Issues In Dispute

1. Is the incident on November 28, 2017 an accident within the meaning of section 3(1) of the Schedule?

RESULT

1. SB was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, SB is not entitled to claim accident benefits under the Schedule and this Application is dismissed.

ANALYSIS

Background

On November 28, 2017 SB arrived at a gas station, put gas in her car, retrieved her purse from the front passenger seat of her car, closed the car door, turned to walk away, and then fell to the ground. All of this was recorded on a video filed by Aviva.

SB described what happened after she closed the car door as follows:

“I then slipped on something that was on the floor, with the first and second step I took. On my third step my legs then became tangled with the longer strap of my purse that was hanging down.... I do not recall if it was both of my legs that were tangled up into my purse. I was not able to catch myself from stopping myself from falling…My front passenger’s side door was closed when I had my fall…The fall took place in front of my vehicle and I had no contact with my car. I do not know what I slipped and fell on.”

There is no evidence of what SB slipped on. The video relied upon by Aviva is not clear enough to establish whether there was or was not anything on the ground. The photographs relied upon by Aviva that were taken after the incident are undated and are of no evidentiary value in determining what, if anything, was on the ground at the time SB started to slip. There is no dispute that at some point SB’s leg(s) got tangled in her purse strap, that she fell and that she was injured as a result of that fall. SB did not fall on her car nor did any portion of her body hit her car.

The parties disagree on whether what occurred on November 28, 2017 falls within the definition of “accident” in the Schedule.

SB’s Motion

By Motion dated November 16, 2018 SB sought an order compelling Aviva to provide all photographs they are relying on with date and time stamp visible with precision to a second, and also sought to exclude two photos (photos 5 and 6) and other unspecified evidence that is “inaccurate, irrelevant and misleading”.

In support of her Motion, SB relies upon material filed as part of Aviva’s Case Conference Summary, a copy of which was filed with SB’s Motion material. Aviva’s Case Conference Summary was not reviewed by me as to do so would be inappropriate without first hearing submissions from Aviva, given the settlement privilege that may attach to portions of a Case Conference Summary. The Adjudicator did not consider any of SB’s submissions on the Motion that relate to Aviva’s Case Conference Summary or the evidence or positions alleged to have been advanced by Aviva at the Case Conference.

Paragraph 3 of Aviva’s submissions states that “There is nothing on the ground around her vehicle in the video to suggest she slipped on anything. There is nothing in the photos taken after the incident either.”  In support of that submission Aviva filed 11 photos which are identified as “Still Photos of Incident” and includes photos from the video and from the following day and 4 photos of the ground near the gas pump that are not dated or time stamped.

As the photographs that are undated are of no evidentiary value in determining what, if anything, was on the ground at the time SB started to slip, there is no reason to compel Aviva to provide copies with date and time stamp visible with precision to a second as requested by SB.

Photos 5 and 6 filed by Aviva are two photos depicting SB on the day after the incident. It is apparent from the portion of the date stamp on photo 5 that it is dated November 29, 2017 not November 28, 2017. Although there is no basis to exclude these photos, they are not relevant to the preliminary issue hearing and the Adjudicator did not consider them in reaching a decision.

The motion was dismissed.

Preliminary Issue

Section 3(1) of the Schedule defines the term “accident” as follows:

“accident” means 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.

The Ontario Court of Appeal set out the following two part test for determining whether an accident has occurred for the purposes of the Schedule. Both parts of the test must be satisfied for an incident to be an accident. The onus is on the applicant to prove their case.

1. Purpose Test: Did the incident arise out of the use or operation of an automobile?
2. Causation Test: Did such use or operation of an automobile directly cause the impairment?

For the reasons that follow SB has not satisfied either the purpose test or the causation test.

Purpose Test: Did the incident arise out of the use or operation of an automobile?

SB submits that the purpose test is satisfied as the incident resulted from an ordinary and well-known activity to which automobiles are put, namely putting gas in her car. SB submits that her ordinary use of her car continued from when she started putting gas in her car until the time she fell.

Aviva does not dispute that filling a car with gas is an ordinary use to which automobiles are put, but submits that the purpose test is not satisfied as SB was not filling her car with gas at the time she fell. Aviva submits that she was walking away from her car when she fell.

SB relies on the Court’s comment in Davis that routine maintenance, like checking and topping up fluid levels, checking tire pressure and filling the gas tank satisfy the purpose test, and on  Caughy for the proposition that there is no requirement that the vehicle be in active use to satisfy the purpose test. Caughy is distinguishable and not relevant because in this case SB had no contact with any parked vehicle when she fell, nor had contact with a parked vehicle caused her to fall.

The Adjudicator agreed with Aviva that SB was not filling her car with gas when she fell but rather she was walking away from her car. SB’s fall occurred after she had retrieved her purse and closed her car door, and for that reason the Adjudicator rejected the applicant’s submission that proximity in time to the ordinary use of a vehicle satisfies the purpose test where, as here, the use of the vehicle had ended prior to the fall.

The Adjudicator found that SB has not established that the incident arose out of the use or operation of an automobile

Causation Test: Did such use or operation of an automobile directly cause the impairment?

1. the “but for” test
2. the intervening causes inquiry; and
3. the dominant feature inquiry.

SB submits that there was an unbroken chain of events that began when she started putting gas in her car and ended when she fell, and that she was actively involved in activities with her car throughout that time.

Aviva submits that SB was injured as a result of an intervening act, her slip and fall, and not as a result of the use or operation of her car. Aviva submits that the use or operation of her car was not a dominant feature as her car was not involved in her fall.

Even if SB had satisfied the purpose test, I find that the incident is not an accident as SB has not satisfied the causation test.

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