Insured hurt by parking lot gate entitled to car accident benefits
January 11, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Jeffrey Rogers
Date of Decision: October 2, 2014
Sheldon Kasman alleges that he was injured in a car accident on July 15, 2010. He applied for statutory accident benefits from Security National Insurance Co payable under the Schedule. Security National refused to pay benefits on the grounds that Mr. Kasman was not injured in an “accident”.
The preliminary issue is:
Was Mr. Kasman injured as a result of an “accident” as defined in the Schedule?
Mr. Kasman was injured as a result of an “accident” as defined in the Schedule.
EVIDENCE AND ANALYSIS:
On July 15, 2010 the arm that regulates entry into an underground parking garage struck Mr. Kasman on the head. He was on his way into the garage to retrieve his parked car and he walked under the arm, following a car that triggered the arm to lift. The arm came down because the car Mr. Kasman was following continued into the garage, triggering the sensor that causes the arm to lower. These facts are not in dispute.
What is in dispute is whether Mr. Kasman’s injury was directly caused by the use or operation of an automobile, as required by the definition of “accident” in section 2(1) of the Schedule.
Two questions must be answered in order to satisfy the definition of “accident” in subsection 2(1) Schedule:
Did the incident arise out of the use or operation of an automobile? (the purpose test) and
Did such use or operation of an automobile directly cause the impairment? (the causation test)
Security National incorrectly described the test in arguing that this incident fails both prongs. Security National argues the incident in which Mr. Kasman was injured fails the causation test because the lowering of the control arm breaks the chain of events between the use or operation of the car and the injury. Security National relied on several cases which the Arbitrator found to be incorrectly applied in this case.
The Arbitrator found that the entry of the car that Mr. Kasman followed into the parking garage directly caused his injury. There was no act between the use or operation of the car and his injury. The Arbitrator rejected Security National’s submission that the lowering of the arm is an independent act because the arm is operated by a mechanism separate from the car. Had the car hit the arm, which in turn hit Mr. Kasman causing injury, there would be no doubt regarding causation. The Arbitrator found no qualitative difference because the arm is remotely triggered.
Although the arm is separate from the car, it was not independent of the car in the circumstances of this case. While it may be true that the arm could be triggered by something other than an automobile and that it could cause injury in those circumstances that was not the case here. Here, Mr. Kasman has established the direct connection between the lowering of the arm and the car he followed into the garage. The Arbitrator concluded that he was injured as a result of an “accident” as defined in section 2(1) of the Schedule.
The Arbitrator concluded that the use or operation of the car that Mr. Kasman followed into the parking garage set into motion a chain of events that directly led to his injury. He was therefore injured in an “accident” as defined.
|Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann 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.