Neutral Citation: 1997 ONICDRG 111

OIC A96-001053

ONTARIO INSURANCE COMMISSION

BETWEEN:

VICTORIA FRIEDRICHS

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON A PRELIMINARY ISSUE

Issue:

The Applicant, Victoria Friedrichs, was injured when she fell after descending from a bus on March 8, 1996. She applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee refused to pay any benefits because it claims that Ms. Friedrichs was not involved in an "accident" as defined in the Schedule.

The parties were unable to resolve their disputes through mediation and Mrs. Friedrichs applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Was Ms. Friedrichs involved in an "accident", as defined in the Schedule?

Mrs. Friedrichs also claims her expenses incurred in the hearing of this preliminary issue.

Result:

1. Ms. Friedrichs was involved in an "accident." Accordingly, she is eligible for benefits under the Schedule.

Evidence and Findings:

1. The Legal Test

Under the Schedule, an "accident" is defined as "an incident in which, directly or indirectly the use or operation of an automobile causes an impairment..."

The parties disagree about whether Ms. Friedrichs' fall involved the use or operation of the bus, and, if so, whether such use caused her injuries.

2. The Facts

Ms. Friedrichs is 68 years old and lives in a house on Homelands Ave. On March 8, 1996, Ms. Friedrichs travelled home on a Mississauga Transit bus. Her bus stop is only two doors away from home and directly in front of Homeland Senior Public School.

Ms. Friedrichs testified that she sat in the front seat, opposite the driver. After the bus came to a full stop, she rose in order to descend the front stairs. She placed her left hand on the railing, located on her left side, and began to step down. The driver opened the front doors. When she had almost reached the ground, approximately 20 high school students tried to enter the bus and pushed against her. Ms. Friedrichs cried out to them "let me out, let me pass." She attempted to force her way through the crowd. By the time she reached the ground she was "frantic," and was holding onto the railing with both hands. She testified that finally the "kids squeezed up against me with such force, I let go." By then, she was "fully descended," with both feet on the ground, close to the bottom step of the bus.

Ms. Friedrichs stated that she was knocked down within moments of releasing the railing. She landed on the road, in front of the bus, near the right tire and close to the curb. A few bystanders came to help. Because she couldn't walk, they carried her home. She was eventually diagnosed with a "crushed" knee cap.

Wayne Moore, a neighbour of Ms. Friedrichs, also testified. He travelled on the same bus as Ms. Friedrichs on the day of the accident, but exited by the rear doors. He then walked across the grass towards the front of the bus, as he intended to cross the street in order to enter his apartment building, which is across the road from Ms. Friedrich's residence. As he was walking toward the front of the bus, he saw a "rambunctious" group of approximately 10-15 teenagers crowding into the front of the bus. He was able to walk through the students and had begun to cross the street when he saw Ms. Friedrichs lying on the road, approximately one foot away from the curb and one foot in front of the right front tire of the bus. He did not see her exit the bus or fall. He and another adult helped her get home.

The Insurer called the bus driver, Ron Richardson, to rebut the evidence of Ms. Friedrichs and Mr. Moore. Mr. Richardson testified that approximately 15 students tried to get on the bus as Ms. Friedrichs was descending the front steps. He stated that although the students tried to "rush on" and were pushing, Ms. Friedrichs managed to get down the steps and walk several steps away from the bus without incident. He lost sight of her for some time but then heard a yell, turned and saw she had fallen in front of the bus, approximately two feet away from the curb. He did not observe her movements between the time she exited the bus and when she fell, but estimated that approximately five to ten seconds had elapsed. He stated that the distance between the front doors and the front of the bus is only half a foot.

Mr. Richardson could not say what caused Ms. Friedrichs to fall. However, in its submissions, the Insurer conceded that Ms. Friedrichs had been knocked over by students attempting to get on the bus.

3. Analysis

"Accident" is defined in section 1 of the Schedule as:

...an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment...

Therefore, in order to qualify for benefits, Ms. Friedrichs must establish that she was injured,

a) as a result of an incident that

b) involved the use or operation of an automobile, and

c) the use of operation of the automobile caused her injuries, directly or indirectly.

The parties agree that Ms. Friedrichs' injuries result from an "incident." The dispute is over whether the incident involved the use or operation of an automobile, and, if so, whether there was a causal link between the use or operation of the automobile and the injury.

The main conflict in the evidence was whether Ms. Friedrichs fell while disembarking from the bus or while trying to move away from it. I find that Ms. Friedrichs most likely fell somewhere in between - immediately after she reached the ground and released the handrail, but before she had moved any appreciable distance from the bus. All the evidence indicates that Ms. Friedrichs fell within two feet of the front of the bus, which in turn is less than a foot from the front doors. It is therefore unlikely that she had walked several paces away from the bus before she fell, as Mr. Richardson suggested. In my view, however, little turns on this distinction, because in either case it is undisputed that Ms. Friedrichs was pushed over by students attempting to get on the bus. The movement of persons onto a bus is integral to its use or operation. As stated by Arbitrator Manji in Lynam²:

In my view, entering into and exiting from an automobile is an integral part of any ordinary and well-known activity to which the automobile can be put. I note that under Part VI of the Act dealing with Automobile Insurance, an "occupant" in respect of an automobile is defined as including a person getting into or on or getting out of or off the automobile.

I conclude, therefore, that the incident in which Ms. Friedrichs was injured involved the use or operation of an automobile.

The next question is whether the use or operation of the bus caused Ms. Friedrichs' injuries, directly or indirectly. The Insurer submits that neither the bus nor its driver caused or contributed to Ms. Friedrichs' fall. It suggests that because she had "cleared" the bus before she fell, her injuries resulted from a collision with pedestrians, rather than a motor vehicle. It likens this case to a situation where a person walks away from a bus and accidentally collides with a jogger. However, Ms. Friedrichs was knocked over by students trying to get on the bus, unlike a jogger who is merely passing through and has no connection to the bus. I have already found the students' attempt to get on the bus constitutes use or operation of an automobile. The issue is whether that use caused Ms. Friedrichs' injuries, directly or indirectly.

I considered the issue of direct and indirect causation in Vineski³, which involved a virtually identical definition of "accident."⁴ After reviewing the case law, I concluded that a causal link does not exist simply because the parties happen to be inside or near a vehicle at the time of injury; there must be a reasonable nexus between the use of the vehicle and the injuries. Director's Delegate Naylor upheld Vineski,⁵ and provided the following analysis, with which I agree:

I conclude that the phrase "causes, directly or indirectly" takes us somewhat beyond a strict analysis of the doctrine of proximate cause, as suggested in Coxe and The Royal Trust. It allows for consideration of a more remote causal link. However, the link cannot be so remote as to deprive the word "causes" of meaning. As I stated in Ekunah and Simcoe & Erie General Insurance Company, (April 22, 1996, OIC P-003550),

it is not enough to show that an automobile was merely the location of the injury, that the injured person was occupying it at the time or that an automobile was involved in some peripheral or incidental way. The use or operation of an automobile must have caused the injuries, whether directly or indirectly. To determine this, paraphrasing Voisin, the role of the automobile in the whole scenario must be considered. [emphasis in original]

In this case, the bus was not "merely the location of the injury" or involved in "some peripheral or incidental way." Ms. Friedrichs was knocked over within moments of exiting the bus by students who were trying to enter the bus. I find that the flow of persons onto the bus caused her to fall and injure herself. This situation is somewhat analogous to the Amos⁶ case, in which the plaintiff was shot and seriously injured by persons attempting to enter his van. The Supreme Court of Canada held that the driver's injuries were, in the words of the statutory language under consideration, "caused by an accident that arises out of the ownership, use or operation of a vehicle." The Court noted that the van was not merely the site of the shooting. Nor was the shooting random; rather it was the direct result of the assailants' failed attempt to enter the driver's van:

It is not important whether the shooting was accidental or deliberate while entry to the vehicle was being attempted. It is important that the shooting was not random but a shooting that arose out of the appellant's ownership, use and operation of his vehicle.

Although the driver in Amos was inside the vehicle at the point of injury, unlike Ms. Friedrichs who had just left the vehicle, in both cases the injuries arose because other persons were attempting to enter the vehicle.

I conclude that Ms. Friedrichs was injured as a result of an "accident" as defined in the Schedule, and is therefore eligible for benefits.

Order:

1. Ms. Friedrichs was involved in an "accident" as defined in the Schedule, and is therefore eligible for benefits.

2. Mrs. Friedrichs is entitled to her expenses incurred in respect of the arbitration.

June 20, 1997

Deena Baltman Arbitrator

Date

Schedule A

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on January 27, 1997, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

Victoria Friedrichs

Mrs. Friedrichs’s Representative:

Carlos Pereira Barrister and Solicitor

Guarantee's Representative:

Fiona Porter Barrister and Solicitor

Witnesses:

Victoria Friedrichs

Wayne Moore

Ronald Richardson

Exhibits:

Exhibit 1

Hearing Brief

Exhibit 2

Applicant's Handwritten Statement

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 294, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Lynam and Formosa Insurance Company (January 18, 1996), A-010990
3. 3Vineski and Federation Insurance Company (September 8, 1995), OIC A-012588
4. 4The previous Schedule, under which Vineski was decided, defined "accident" as "...an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury... "
5. 5Vineski and Federation Insurance Company (October 18, 1996), P-012588. The Insurer has applied for judicial review of the appeal decision in Vineski.
6. 6Amos v. Insurance Corp. of British Columbia (1995), 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618 (S.C.C.)