Applicant shows that but for being on the bus the accident wouldn't have occurred - Applicant by Litigation Guardian and Aviva - 16-000218 v Aviva 2017 CanLII 56680 (ON LAT)

October 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant by Litigation Guardian and Aviva - 16-000218 v Aviva 2017 CanLII 56680 (ON LAT)

Date of Decision: July 31, 2017
Heard Before: Adjudicator Ruth Gottfried

Preliminary Issue Hearing

WAS IT AN ACCIDENT: ‘two part’ test; three prong test; applicant shows that but for being on the bus the accident would not have occurred; the accident began before the bus was stopped and parked; the applicant makes case that the incident is an accident.

The facts in this case are not in dispute.  The parties submitted an agreed statement of facts:

The applicant was involved in an accident that occurred on April 16, 2009.

1. The applicant was 7 years old at the time and a student in elementary school. She suffers from cerebral palsy and quadriplegia, spastic type. She is confined to a wheelchair and has special needs. She is fully vocal but her CP causes her speech to be affected by stress and anxiety.
2. The applicant was transported daily to school from September 2008 to April 16, 2009 by a school bus driver.
3. The driver arrived with the school bus at the applicant’s home.  She parked the bus, shut it off, went to the back of the bus, opened the door, lowered the ramp and loaded the applicant onto the ramp. The driver then put the seatbelt around the applicant and raised the ramp. She then went inside the bus, brought the applicant inside the bus from the rear, attached the seatbelt and strapped down all four corners of the wheelchair. The applicant was the only child on the bus.
4. The driver did not deliver the applicant to school. Instead, the driver drove to her own [the driver’s] house.  The applicant was aware that the driver was taking an abnormal route.  This caused the applicant to become anxious and frightened and she became short of breath.  When she is scared or anxious, she has difficulty communicating with words that are understandable.
5. The applicant became increasingly anxious when the bus entered and stopped on the driver’s driveway.  The driver then exited the bus, locked it, got into another vehicle and drove away.  There were no alarms on the bus that the applicant could trigger. 
6. By the time the driver was notified by her dispatcher that the applicant had not arrived at school, the applicant had been left on the bus, alone and unattended, for approximately 2 hours, during which time her psychological status deteriorated.
7. The applicant sustained psychological and mental injuries and impairments as a direct result of being abandoned on the school bus.
8. On May 10, 2016, the applicant filed an Application for Auto Insurance Dispute Resolution at the Tribunal (“Tribunal”) with respect to denied requests for accident benefits.
9. The respondent (“Aviva”) then raised the preliminary issue that the incident giving rise to the claim for accident benefits does not meet the definition of “accident” as this term is defined in the Schedule.

Issue:

1. The only issue put forward at this Preliminary Issue Hearing is to determine if the incident of April 16, 2009 involving the applicant, qualifies as an accident as defined in SABs. If it is determined that the incident giving rise to this accident benefit claim meets the definition of accident as defined in the Schedule, another case conference will be held before the LAT to determine the benefits to which the applicant is entitled.

Both parties referenced the “two-part test” that currently forms the basis of jurisprudence regarding the determination of whether an incident is an “accident” as defined in the Schedule.   The two-part test involves a purpose test and a causation test.

The applicant argues that she meets both tests and the incident should be categorized as an accident under the Schedule.  A finding for the applicant would mean that she could claim entitlement to accident benefits for impairment(s) arising out of the accident.

Aviva subits that the subject incident did not arise out of the ordinary “use and operation of an automobile … [and] as such, the purpose test is not satisfied, and the analysis should end there.”

RESULT:

1. The incident of April 16, 2009 involving the applicant is an accident as defined in the Schedule.

The Arbitrator reviewed the law and the evidence. She focused on the two-part test formulated in the Supreme Court case of Amos v. Insurance Corp. of British Columbia (“Amos”). The test required that both a purpose test and causal link, should be applied:

1. did the accident result from the ordinary and well‑known activities to which automobiles are put, and if so,
2. was the relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, causal or was it merely incidental or fortuitous.

In order to succeed in her claim, the onus is on the applicant to:

1. Establish that the use or operation of the vehicle was the cause of the injuries; (the purpose test); and
2. Satisfy the Tribunal that there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. In other words, the question (under the causation test analysis) is whether it could be said the use or operation of the vehicle was a “direct cause” of the respondent’s injuries. (the causation test)

The Amos purpose test can be summarized by the question:  Did the accident result from the ordinary and well-known activities to which vehicles are put?

Aviva properly states that in the case at bar, the vehicle involved in the incident is a bus used to transport disabled children to and from school, which, inter alia, involves the loading and unloading of children for this purpose. It goes on to say that had the applicant been injured during loading or unloading then the injuries would have resulted from the ordinary use and operation of the bus.  However, since the applicant’s injuries occurred after she was left in the parked bus it cannot be said that a bus is ordinarily used as a means for abandoning children.  It also submits that abandoning a child in a bus does not fall within the parameters of transporting disabled children to and from school.

The Adjudicator agreed with Aviva’s position that the “ordinary use” of the bus is to transport disabled children to and from school.  Further, the adjudicator agreed that transporting the children “involves” the loading and unloading.  However, the Adjudicator noted the ordinary use of the bus is not restricted to getting on and off it.

Aviva relied on the decision in Reliance, however, in Reliance, Justice Ritchie questions whether the negligence of the employee was in the course of work other than that of his operation or use of the truck.  He further states, “delivery was as much a part of what was being done by means of the truck as the carriage”.  Although Aviva has used Reliance to support its position, the Adjudicator found the case more supportive of the applicant’s position.  Using “common judgment in ordinary language”, it is clear that the ordinary use of a school bus is taking children back and forth from home to school, including getting on and off the bus. 

In the case at bar, the children being transported were by definition, disabled in some way.  The applicant could not get off the bus by herself and therefore, was still using the bus in its ordinary purpose - to get to school.

THE CAUSATION TEST

Prior legislation had referred to injuries that arose directly or indirectly from the use and operation of a vehicle. With the revision of the Schedule for accidents on or after November 1, 1996 the word “indirectly” was removed from the definition of “accident”. 

In Chisholm, Justice Laskin states that since the word “indirectly” has been removed from the legislation, the causation test as set out in Amos can no longer be used.  The key aspects of the new causation test are set out in the following cases.  Justice Labrosse, in Greenhalgh, suggests a new three-prong test that can now be useful guidance in determining the issue of causation:

Prong 1:         the “but for” test

Prong 2:         an intervening cause that may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile

Prong 3:         was the use or operation of the automobile the dominant feature of the incident. The purpose test asks if the incident arose out of the ordinary and well- pick up and transport passengers.

PRONG 1 – But For Test

The parties are in agreement that the first prong of the causation test, referenced as the “but for” test, has been met.  But for the involvement of the school bus the applicant would not have suffered any injuries.

PRONG 2 – Is there an intervening act that breaks the causation link?

Aviva relies on Chisholm to support its position that there is an intervening act in this case.  In the Chisholm case an unknown assailant fired gun shots at Chisholm while he was driving his wife's car. He was rendered a paraplegic. He was refused accident benefits from his wife's insurer. He sued. The insurer sought a determination of the question whether "the use or operation of an automobile directly caused" Chisholm's injuries. A motions judge held that the direct cause of his injuries was the gun shots, not the use or operation of a motor vehicle. Chisholm appealed.  The Ontario Court of Appeal dismissed the appeal.

Aviva references the court in Chisholm as saying that the “shooting constituted an intervening act, independent of the vehicle’s use or operation”, thus disentitling Mr. Chisholm to accident benefits.

Chisholm is distinguishable from the case at bar for exactly the reason articulated by the above definition:  there is no evidence that the applicant’s injuries were caused by a new and independent source.  The train of events that brought about the resulting injuries to the applicant was the school bus pick-up of the applicant at her home, the bus going off course, and the applicant’s abandonment at the driver’s home.  The trip was in progress and the bus was being used in its ordinary operation.  There was no intervention from a new and independent source.

According to the agreed statement of facts, the applicant’s injuries began when she became aware that the driver was taking “an abnormal route”.  The applicant became “anxious”, “frightened” and “short of breath”.  She had “difficulty communicating with words that are understandable”.  She became “increasingly anxious” [emphasis added] when the bus entered and stopped on the driver’s own driveway.  The time alone on the bus caused the applicant’s psychological status to deteriorate, but that is clearly the end of the unbroken chain of events, not an intervening event from a new and independent source.

Aviva cites Law Union & Rock as a case similar to the case at bar.  In that case Moore’s Taxi had a contract to transport disabled children to and from school.  However, in that case the taxi had arrived at its destination and the driver negligently parked on the opposite side of the street. Tragically, when the passenger child attempted to cross to the opposite side he was hit by a truck and suffered serious injuries.

The similarity between Law Union and the case before the LAT starts and ends with the transportation of disabled children to and from school.  In Law Union Justice Ritchie makes it clear that the injury occurred “after the boy left the stationary vehicle and was standing unharmed on the sidewalk facing the potential peril of crossing the street alone…”  The taxi had reached its destination, but the driver acted negligently by parking on the opposite side of the street and then not getting out to help the boy cross safely.  In the case before me, the school bus had not yet completed its purpose as it had not yet reached its destination.

Justice Ritchie also states that there is a clear distinction between this case [Law Union] and Stevenson.  In the Stevenson case, the entire delivery operation was effected in the course of using the motor vehicle in question, which the Adjudicator found parallel to the case at bar.

In Law Union, the taxi had completed its stated purpose and then, and only then, did the drive behave in a negligent manner.

PRONG 3 – The dominant feature test

Aviva submits three cases turning on the third prong of the causation test – the dominant feature test. Aviva suggests a review of Chisholm where the Court of Appeal applied the test and concluded that it was gun shots and not the use of the vehicle that were the dominant feature of the insured’s injuries. Secondly, it references Greenhalgh, where the dominant feature of the insured’s injuries could be characterized as exposure to the elements.  Thirdly, is the case of Longley v. General Motors(“Longley”).  In this case, Ms. Longley was using her truck’s tailgate as a stepping stool to reach her jacket, when the tailgate gave way to due to a faulty mechanism.  The Court determined that although she fell from the truck it was not the dominant feature of the accident, “although it was certainly part of the chain of causation”.

The Adjudicator did not believe that any of these cases are analoguous to the case before the LAT and illustrate only various examples of what the case at bar is not.

The applicant has the onus to prove that the use and operation of the vehicle was directly responsible for her injuries.  This was fundamentally accomplished in the agreed to statement of facts:  the applicant’s injuries began while the school bus was still driving her to school and began to take a different route.  From that point forward, the applicant’s injuries were exacerbated. The Adjudicator agreed with the applicant that the dominant feature of the injury was the psychological impact of the bus ride.

There is no doubt that this is a difficult case.  While the purpose test as articulated in Amos still forms part of the analysis, the Ontario Court of Appeal followed the new legislation in a series of cases where the causation test was redefined and subdivided into a three prong approach:  the “but for” test; the intervening act test and the dominant feature test. The applicant has put forward a strong argument that the school bus was engaged in the ordinary and well-known activity to which school buses are put.

Based on the evidence and the law the Adjudicator determined that the applicant has satisfied the purpose test.

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