Chain of Events Broken - Incident Not Accident - IS and Aviva - 17-000942 v Aviva Insurance Canada, 2017 CanLII 62174 (ON LAT)

October 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

IS and Aviva - 17-000942 v Aviva Insurance Canada, 2017 CanLII 62174 (ON LAT)

Date of Decision: September 14, 2017
Heard Before: Adjudicator Meray Daoud

WAS IT AN ACCIDENT: two part test; broken chain of events; intervening act of tripping on curb; not an accident

IS was in an incident on January 20, 2016, and sought benefits from Aviva, Her claim for non-earner benefits (NEBs) was denied by Aviva and IS filed an application LAT.  This is a preliminary issue hearing, brought by Aviva.  If IS is unsuccessful at this hearing, she will not be entitled to any benefits sought under the Schedule that relate to the incident that took place on January 20, 2016.

Issues:

1. Was involved in an “accident” as defined in section 3(1) of the Schedule?
2. Is Aviva entitled to their costs of this proceeding?

Result:

1. IS was not involved in an “accident” as defined by the Schedule and is not entitled to benefits under the Schedule.
2. Aviva is not entitled to their costs of this proceeding.

Facts:

The parties agreed on the facts of this case, that on January 20, 2016, IS was a passenger who disembarked from a vehicle which stopped to drop her off in front of her building of residence.  According to IS, she was dropped off a “little bit down” from the drop off area at her residence.  She closed the car door and then took three to four steps towards the front of the building, when she tripped over an uneven curb. IS sustained injuries to her right wrist, right fifth finger, right hand, right shoulder and low back.

IS states that the curb that goes “right around the building” was in need of repair, which inevitably was done a week post- incident. On the day of the incident there was a sign which read “WATCH YOUR STEP” on top of an orange pylon on the sidewalk where she was dropped off.

The Arbitrator reviewed the facts, the law, and the definitions of ‘accident’ in the legislation. The Arbitrator then reviewed the two-part test of direct cause and intervening act. Based on the law, and the evidence the Arbitrator concluded that the key question is whether the use or operation of the vehicle was a “direct cause” of the injuries?

Aviva argued that the use or operation of the vehicle was not a direct cause of her impairment but rather, the uneven curb was the intervening feature that ultimately caused her injury.  Aviva argued that the use or operation of the vehicle was not a direct cause of her impairment but rather, the uneven curb was the intervening feature that ultimately caused her injury.

IS submits that she did not have a choice as to where she was dropped off and as such this added to the risk that befell IS. She also submits that the trip on the uneven curb did not break the chain of causation and that tripping after getting out of the vehicle was an uninterrupted chain of events, resulting in the injuries.  Essentially, the use and operation of the vehicle was the direct cause of the injuries. IS argued that, but for her being compelled to exit in an unsafe drop off area, where there was a clear warning sign, she would not have sustained injuries. 

The Arbitrator ruled that there was a broken chain of causation between the use and operation of the vehicle which IS disembarked, and the injuries she sustained in this case. The evidence shows that IS did not slip and fall immediately upon disembarking. There was an intervening act namely the tripping on an uneven curb, which resulted in IS’s injuries. There was a separation in distance and time from the disembarkation from the vehicle and the subsequent slip and fall. The location, use and operation of the vehicle were not the direct cause in this case.

Therefore, the incident which IS was involved in does not fall within the definition of an “accident” as per the Schedule.

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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.