Neutral Citation: 2001 ONFSCDRS 41
FSCO A00-000489
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANDREW MAHADAN
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Joyce Miller
Heard:
February 5, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Paul Caprani for Mr. Mahadan
Philippa Samworth for Co-operators General Insurance Company
Issues:
On September 13, 1999, the Applicant, Andrew Mahadan, was injured as a result of a fall after he had closed the trunk of his car. He applied for statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the 1996 Schedule.1 Co-operators refused to pay him accident benefits on the basis that he was not injured as a result of an "accident" as that term is defined in the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Mahadan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Was Mr. Mahadan injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
Result:
- Mr. Mahadan was not injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
EVIDENCE:
To qualify for benefits Mr. Mahadan must establish, on a balance of probabilities, that he was injured as a result of an accident. "Accident" is defined in subsection 2(1) of the Schedule, which provides that:
"Accident" means 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. [Emphasis added]
The hearing proceeded by way of an Agreed Statement of Facts attached as Appendix "A" to this decision. Succinctly, the facts agreed upon are that Mr. Mahadan was injured as a result of a fall on September 13, 1999. Just prior to the incident, Mr. Mahadan, who was 40 at the time, had parked his car in his usual spot in the parking lot of his condominium. He turned off his vehicle and got out of his car. He then walked along the driver's side of the vehicle to the trunk, opened it with his keys and took out five bags of groceries. He closed the trunk. As he turned away from the trunk his left foot twisted in a groove cut out of the pavement. The groove in the pavement was due to construction work being done on the parking lot. When Mr. Mahadan's foot twisted in the groove he fell towards his left side and onto the concrete. As he fell, his right arm hit the trunk of the vehicle. As a result of the fall, Mr. Mahadan sustained a fracture of his left ankle/tibia. He also complained of neck and back pain.
Mr. Mahadan submits that he was injured in the course of the use and operation of his motor vehicle and that the use and operation of his motor vehicle was the direct cause of his injuries.
Co-operators submits that the use or operation of Mr. Mahadan's motor vehicle led him to the ultimate location of his injury, but that his injuries were sustained from a new and independent source other than his automobile, namely falling on cracked pavement. Co-operators further submits that the "falling incident" amounted to a completely new and independent intervening cause, and therefore was not "directly caused" by the use or operation of his motor vehicle.
ANALYSIS AND FINDINGS:
The present legislation is stricter than the previous legislation.2 Prior to November 1, 1996, an applicant could make an accident benefit claim for injuries that were caused either "indirectly" or "directly" by the use or operation of an automobile. The present legislation restricts accident benefit claims to injuries caused "directly" by the use and operation of a motor vehicle.
Since the legislation's enactment, there have only been three arbitration cases3 that have dealt with the interpretation of the present definition of the term "accident." The first case to interpret the definition of "accident" under the 1996 Schedule was Petrosoniak and Security National.4
In Petrosoniak, a bicyclist was injured when he skidded on an oil slick left on the road by a motor vehicle. Arbitrator Novick found that a motor vehicle had set in motion the uninterrupted events that directly caused the applicant's injuries. In reaching her conclusion that this incident met the definition of "accident" in the 1996 Schedule, Arbitrator Novick found that she could not apply the cases decided before the amendment. Instead, she relied on the meaning of the term "direct cause," found in Black's Law Dictionary, where it is defined as "the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source." Accordingly, she concluded that:
While the fact that the fluid fell onto the roadway, as opposed to falling directly onto Mr. Petrosoniak, may constitute an intermediate step in the process which ultimately led to his injuries, it does not, in my view, constitute an intervening act or a force 'working actively from a new and independent source'...
Arbirator Novick's interpretation of the definition of the term "accident" was adopted in the two subsequent arbitration decisions dealing with whether a car accident had occurred pursuant to subsection 2 of the 1996 Schedule. These cases are Karshe and Non-Marine Underwriters, Mbrs. of Lloyd S; and Sarkisian and Co-operators General Insurance Company. In these two cases, the arbitrators applying the reasoning in Petrosoniak found that under the definition in the 1996 Schedule a car accident had not occurred.
In Karshe, the applicant (a taxi driver), was assaulted with brass knuckles and robbed by his passengers following a dispute over the fare. The assault took place after the passengers had left the taxi cab. In arriving at his conclusion that Mr. Karshe' injuries were not as a result of an "accident" as defined in subsection 2(1) of the 1996 Schedule, Arbitrator Blackman stated that he found "... Arbitrator Novick's approach to be most applicable to the legislation in question."
Arbitrator Blackman concluded that:
It can be said that the use or operation of Mr. Karshe's taxi-cab provided the opportunity, the motive, the atmosphere of hostility and/or the emotional impetus for a train of events culminating in an injury being sustained and was, therefore, a predisposing, secondary or indirect cause of Mr. Karshe's impairment. However, with the legislative narrowing of the scope of coverage, that is not sufficient. I find that Mr. Karshe's injuries were only sustained upon the intervention of a force starting and working actively from a new and independent source other than an automobile, namely brass knuckles being applied by passenger #1 against the left side of Mr. Karshe's face. In the reality of Mr. Karshe's case, the use or operation of his taxi-cab was not the efficient, predominate or direct cause of his impairment.
Arbitrator Novick's approach in Petrosoniak was also followed in Sarkisian, by Arbitrator Sampliner when he concluded that the applicant in that case did not die as a result of a motor vehicle accident as defined in subsection 2(1) of the Schedule.
In Sarkisian, the applicant was found shot to death beside his car. Arbitrator Sampliner found that at the time of the shooting the applicant had been conducting maintenance on his car. After reviewing the leading cases decided under the pre-November 1, 1996 legislation, Arbitrator Sampliner concluded that:
The critical feature missing from the facts in this case versus the other scenarios which have met the definition is that the car did not play a direct instrumental role in the chain of events leading to Mr. Sarkisian's death. Mr. Sarkisian's replacement of windshield fluid put him at the site of his car, but his vehicle played no role in his death or in any force givng rise to his death. Even if I were to accept that theft was the motive here, the direct and intervening instrument or cause of Mr. Sarkisian's death was the gunshot.
Conclusion:
On the facts of this case I find that the normal use and operation of Mr. Mahadan's car did not directly cause his injuries. Like Arbitrators Blackman and Sampliner I too agree with the approach of Arbitrator Novick in Petrosoniak.
I find that while Mr. Mahadan's motor vehicle led him to the location of his injury, his injuries, nevertheless, were sustained from a new and independent source other than his car. I find that what caused Mr. Mahadan to trip and fall was the crack in the pavement. This crack in the pavement had nothing to do with the use and operation of a motor vehicle, but was there because of the construction work being done on the parking lot. I, therefore, find that the crack in the pavement was the intervening feature that ultimately caused his injury. Accordingly, I find that Mr. Mahadan was not involved in an "accident" as defined in subsection 2(1) of the Schedule.
EXPENSES:
Should the parties be unable to agree on the legal expenses of this preliminary issue hearing, I may now be spoken to.
March 15, 2001
Joyce Miller
Arbitrator
Date
APPENDIX "A"
AGREED STATEMENT OF FACTS
On September 13, 1999, Mr. Andrew Mahadan, who was 40 years old at the time, was injured as a result of a fall.
Mr. Mahadan owned an automobile, which was insured by the Co-operators under a standard policy of automobile insurance, bearing policy no. 2707145.
Mr. Mahadan submitted an Application for Accident Benefits (OCF-1/59), a copy of which is attached at Tab 1.
The incident which led to Mr. Mahadan's injury occurred in the parking lot of his condominium complex, a townhouse complex, [on] Central Park Drive, Unit __ in Brampton.
Just prior to the incident, Mr. Mahadan parked his car in his usual spot, turned off his vehicle and got out of his car.
He then walked along the driver's side of the vehicle to the trunk, opened it with his car keys and took out five bags of groceries.
He closed the trunk.
He turned away from the trunk. As he put his foot down, while turning, he found that his left foot twisted in a groove cut out of the pavement. He fell towards his left side and fell onto the concrete. As he fell his right arm hit the trunk of the Firebird.
The cracked pavement was due to some construction work being done in the parking lot at the time. The condominium was repairing cracked gravel but cutting out sections of the lot. (Photographs are attached at Tab 2).
As a result, Mr. Mahadan sustained a fracture of his left ankle/tibia and also complained of neck and back pain.
This Agreed Statement of Fact is strictly for the purposes of the preliminary issue of whether Mr. Mahadan's injury occurred as a result of an accident as defined in the SABS, in the FSCO Arbitration of Mahadan and Co-operators General Insurance Company, FSCO File No. A00-000489-ML, at the Ontario Financial Services Commission.
February 1, 2001
Neutral Citation: 2001 ONFSCDRS 41
FSCO A00-000489
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANDREW MAHADAN
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Mahadan's claim for accident benefits under the Schedule is dismissed.
March 15, 2001
Joyce Miller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
- These cases are Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998); Karshe and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A99-000855, December 15, 2000); and Sarkisian and Co-operators General Insurance Company (FSCO A99-000966, January 17, 2001).
- Ibid.