Broken Leg from Slip and Fall is Not an Accident - Ben Yehudaiff v. TD Insurance Meloche Monnex, 2019 ONLAT 18-001537/AABS

July 15, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Ben Yehudaiff v. TD Insurance Meloche Monnex, 2019 ONLAT 18-001537/AABS

Date of Decision: March 19, 2019
Heard Before: Vice Chair Dawn J. Kershaw

WAS IT AN ACCIDENT: slip and fall; definition of ‘accident’; two part test purpose and causation; but for test; was there an intervening factor; was the motor vehicle the dominanat feature of the incident; not all conditions of an ‘accident are met; incident ruled not an accident

On January 17, 2017 Mr. Yehudaiff drove to the hospital where he claims he parked his car, got out, and slipped and fell on black ice while still holding onto his car door handle, and broke his leg. He sought benefits from TD who denied them on the basis that he was not involved in an accident as defined by section 3 of the Schedule. Mr. Yehudaiff then applied to the LAT.

At the tribunal Vice Chair Kershaw applied the two part purpose-causation test and found that while Mr. Yehudaiff’s slip and fall did arise from the use and operation of a motor vehicle this use and operation were not the direct cause of the impairment he sustained (broken leg).

Vice Chair Kershaw held that Section 3 of the Schedule outlines the three prongs of the test for causation:

1. Would the slip and fall have occurred ‘but for’ the use or operation of the motor vehicle?
2. Was there an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle?
3. Was the use or operation of the motor vehicle a dominant feature of the slip and fall.
    

Vice Chair Kershaw found that Mr. Yehudaiff met the ‘but for’ criteria of the causation test but that he failed in establishing the second aspect with respect to the intervening cause.

Vice Chair Kershaw determined that the slip and fall on the ice outside of Mr. Yehudaiff was sufficiently independent of the use of the vehicle to establish an ‘intervening cause’. The fact that he claims to have been holding onto the car door handle (proximity to the vehicle) is not sufficient evidence to satisfy the causation test. The result was that Mr. Yehudaiff’s injuries were caused by the weather rather than from using his vehicle.

The incident was not an accident.

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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 at 1-519-742-7774.

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.