Incident not an accident - KB and Intact 16-004096 LAT

October 16, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

KB v Intact 2017 CanLII 63622 (ON LAT 16-004096)

Date of Decision: September 27, 2017
Heard Before: Adjudicator Rebecca Hines

WAS IT AN ACCIDENT: applicant fails two part test; purpose and causation tests failed.

K.B. was involved in an incident on January 23, 2016, wherein she was injured. She applied for accident benefits to Intact under the SABs.

ISSUE IN DISPUTE:

1. Was KB involved in an “accident” as defined in the Schedule?

RESULT:

1. KB was not involved in an “accident” as defined by the Schedule and is not entitled to claim accident benefits under the Schedule.

FACTS:

KB drove her kids to a birthday party, and while walking back to her car she tripped in a pothole a few steps away from her minivan and fell to the ground onto her right arm. KB testified that at the time of the fall she was holding her daughter`s hand and had her keys in her other hand.  She let go of her daughter’s hand when she fell.  KB testified that the sole purpose of being in the parking lot was to reach her vehicle to drive herself and her family home.  At no time did KB make physical contact with her mini-van as she fell.   KB sustained a total rotator cuff tear to her right arm.  She has gone for physiotherapy, laser therapy and has had two surgeries. 

The Schedule defines an accident clearly 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”

In order for KB to have been involved in an KB must meet the following two-part test, in which both requirements must be satisfied:

1. purpose test:  Did the incident arise out of the use or operation of an automobile?
2. Causation test: Did the use or operation of an automobile directly cause the impairment? 

KB argued that the incident of January 23, 2016 meets the definition of accident as driving her vehicle to the party location, and parking it in their parking lot constitutes a regular activity to which automobiles are put.  Furthermore, she submits that there need not be contact with a vehicle to constitute an accident, for example, leaving or approaching a parked car can qualify.

Aviva argued that the fall was not a “direct cause” of the use or operation of the car, and that she was simply walking to a parked car, the keys were not in the ignition and the vehicle was not in use.  Further, Aviva contends that it was not KB’s vehicle that “directly” caused her injury but the pothole.  Therefore, the incident does not satisfy either the purpose or causation test.

The Arbitrator reviewed the evidence and previous cases. He noted that several cases KB cited were outdated, or not applicable. KB heavily relied upon the LAT decision of D.S. and TD in support of her position that parking a vehicle is a well-known use or activity in using a vehicle.  In this case, the insured was running down the street, tripped and fell headfirst into a parked vehicle suffering catastrophic injuries.  Adjudicator Makhamra followed the reasoning set out in the Court of Appeal decision of Caughy in coming to the determination that a parked vehicle meets the purpose test.  KB argued that her case is more compelling than that of D.S. because she owned the vehicle that she was travelling towards in the parking lot.

The Arbitrator noted what is distinguishable between the present case and that of D.S. and Caughy was that the insureds involved in those accidents made direct contact with the parked vehicles, which resulted in their injuries.  In the present case, KB did not make contact with her vehicle when she fell – she hit the ground.

The Arbitrator preferred the case law submitted by Aviva as more relevant and in line with the current legislation.  The decisions all involved insureds who had parked their cars and sustained injuries by intervening forces whether that be slipping on ice or a crack in the pavement. The arbitrators determined that the only causal link the motor vehicles had to the incidents was the fact that they transported the insureds to the location where the incidents occurred.  I agree with these decisions that simply walking towards a parked car does not satisfy the purpose test. 

The Arbitrator also concluded that KB did not meet the causation test. She was walking towards her parked car. She did not fall getting in or out. The Arbitrator noted that tripping in a pothole is not a reasonable risk associated with motoring.  There was a broken chain of causation between the use and operation of the vehicle and the injuries KB sustained.  There was an intervening act, namely the tripping on the pothole, which resulted in KB’s injuries.  Therefore, the incident which KB 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.