August 09, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
D.S. and TD Insurance LAT 16-000131
Date of Decision: June 16, 2017
Heard Before: Adjudicator Samia Makhamra
Was it an Accident: does falling into a parked car constitute an accident? Incident satisfies all criteria and is and accident pursuant to the Schedule
DS was running down a street in the early hours of September 28, 2015, when he tripped and fell headfirst into a parked car, suffering catastrophic injuries. DS sustained catastrophic injuries as a result of this incident. Some of his impairments include severe paralysis throughout his body below his armpits; complete loss of function in his legs; inability to ambulate; complete loss of bowel and bladder control; difficulty swallowing; and bedsores. The injuries he sustained include fractured spine at the C5 level, fractured T to L1, multiple right rib fractures; nasal bone fractures with soft tissue swelling; nasal septum fracture; and lacerations of the forehead.
He submitted an application for statutory accident benefits to TD. TD denied accident benefits on the basis that he was not in an “accident” that is defined in the Schedule. TD maintains that DS tripped and fell towards a parked vehicle, and that this incident was not directly caused by the use or operation of an automobile.
- Was DS’s incident an “accident” as defined in the Schedule.
- DS was involved in an “accident” as defined in the Schedule, when he fell and struck a parked motor vehicle suffering catastrophic injuries.
The Schedule an “accident” is defined 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.”
The Arbitrator reviewed the law with attention to Amos v. Insurance Corporation of British Columbia which set out a two-part test for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to statutory no-fault accident benefits:
• The purpose test: did the accident result from the ordinary and well-known activities to which automobiles are put?
• The causation test: was there some causal relationship between DS’s injuries and the ownership, use or operation of the vehicle, or was it merely incidental or fortuitous?
He also noted the refining of the causation test in Chisholm v. Liberty Mutual Insurance Group, defining:
- The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new independent source
The Arbitrator reviewed:
• Was the use or operation of the vehicle a cause of the injuries?
• If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries?
TD submits DS does not meet either test, because “falling towards” a vehicle cannot be considered an ordinary, well-known activity for an automobile, nor can it be said that in this case that the parked vehicle was a direct cause of DS’s injuries. With no eyewitnesses, TD maintains that there is no evidence that DS struck the vehicle.
DS maintains that the vehicle he struck that evening was parked, and parking is an ordinary well-known use for an automobile. He further submits that the parked vehicle directly caused his injuries.
The Arbitrator indicated that in order to determine whether the incident in question constitutes an “accident” under the Schedule, the following questions must be answered:
- Did DS make contact with the parked vehicle?
- Does the incident satisfy the purpose test?
- Does the incident satisfy the causation test?
The Arbitrator found on the balance of probabilities, the evidence shows that DS did make contact with the parked vehicle. The Arbitrator determined that with regard to the purpose test the car was parked on the driveway. DS fell and struck the parked vehicle, and parking is a well-known use or activity of a vehicle. On this basis the incident in this case satisfies the purpose test.
The Arbitrato reviewed the evidence in light of the causation test. In order to find an “accident” as defined in the Schedule, the evidence must show a clear causal link between the use or operation of the vehicle and the impairment. In applying the modified causation test, and the causation principles as set out in The principles of direct causation as articulated in Greenhalgh and applied to the facts of this case confirm direct causation as required in the Schedule. These are the “but for”, the intervening act, and the dominant feature principles. While the “but for” principle assists with screening out factors that made no difference to the outcome, I find direct causation in applying the intervening act and the dominant feature principles.
DS submitted that the incident met the causation test. He submitted that the impact with the vehicle is the dominant feature, and that there was no intervening act or event between his tripping, falling and striking the vehicle The Arbitrator found DS’s position that causation is satisfied when applying the intervening act and dominant feature principles is the correct one.