Slipping beside the car is not an accident as defined by the Schedule - Racey v The Co-operators General Insurance Company, 2022 CanLII 2764 (ON LAT)

May 15, 2022, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Racey v The Co-operators General Insurance Company, 2022 CanLII 2764 (ON LAT)

DATE OF DECISION: January 21, 2022
HEARD BEFORE: Adjudicator Avril A. Farlam, Vice-Chair

DEFINITION OF CAR ACCIDENT: what is an accident pursuant to SABS; slip and fall; what constitutes a car accident’ purpose test; causation test; did the use or operation of the vehicle directly cause the injuries

On February 21, 2019 the applicant was injured after exiting her vehicle. They sought SABS benefits pursuant to the “Schedule”. Co-operators denied the application. The applicant appealed the decision to the LAT.

A preliminary issue was heard at the LAT. This issue was:

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

Result:

The incident that resulted in the applicant’s injuries was not an accident as defined in the “Schedule” and therefore that application is dismissed.

Analysis:

The applicant sustained an injury after exiting her vehicle and slipping and falling on an icy driveway. She was in the process of walking along the driveway to the rear door of the car when she fell. The car was not running but the keys were still in the ignition. She testified that she did not hit the vehicle when she fell, but that she was holding the side of the car immediately before falling.

Adjudicator Farlam applied the two-part test established in Chishold v. Liberty Mutual Group, 2002 CanLII 45020. This involves the

• Purpose test: did the incident arise out of the use or operation of an automobile
• Causation test: did the operation or use of an automobile directly cause the impairment

Once the two-fold test is applied there was an examination of whether the use of the vehicle directly caused the injuries.

Both parties agreed the purpose test was satisfied in this case. Analysis then proceeded to the Causation test. Specifically:

1. Would the incident have occurred ‘but for’ the operation or use of the vehicle
2. Was there an intervening act that occurred between the operation/use of the vehicle and the incident that is outside the normal operation or use of the vehicle
3. Was the dominant feature the use or operation of the vehicle?

In this case the applicant held that the incident would not have happened ‘but for’ the use and operation of the vehicle. The Adjudicator examined the argument put forth and set out that the ‘but for’ test did not establish legal causation. The onus to establish causation is on the applicant, and as it was not established the Adjudicator agreed with Co-operators that the dominant cause of the injuries was the slip and fall on the icy driveway which was an intervening act. On this basis the chain of events was broken, and the injuries were not caused by an ‘accident’ pursuant to the “Schedule”.

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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.