Neutral Citation: 2008 ONFSCDRS 21 FSCO A07-001407

BETWEEN:

VICTORIA COOPER Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

*Minor error on pgs. 4 and 5 corrected on March 14, 2008 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Joyce Miller Heard: January 30, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Angela Currie for Ms. Cooper Aldo Picchetti for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Victoria Cooper, claims that she was injured in a motor vehicle accident on February 22, 2006. She applied statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa denied her benefits on the basis that she was not injured as a result of a motor vehicle accident. The parties were unable to resolve their disputes through mediation, and Ms. Cooper 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 Ms. Cooper injured as a result of an “accident” as defined in section 2(1) of the Schedule?

Result:

Ms. Cooper was injured as a result of an “accident” as defined in section 2(1) of the Schedule.
If needed, I may be spoken to on the issue of expenses within 30 days of receipt of this decision. The parties are requested to do so by way of written submissions.

EVIDENCE:

Ms. Cooper is 65, a widow and an artist by profession. Ms. Cooper testified that on the morning of the incident she had driven her car to the dealership for service at Front Street and Spadina Avenue. The dealership did not have a replacement car for her, so she decided to walk home as it was a clear and sunny day. She had her dog, a small American Spaniel, with her and proceeded walking north on Spadina Avenue and turning west onto Queen Street and then north to McCaul Street. At McCaul and College, on the southwest side of the street, she stopped at a red light waiting to cross College Street, a four lane street. There were several other pedestrians waiting with her for the light to change.

Ms. Cooper testified that when the light changed to green she began to cross the street at a normal walking pace. When she reached the second lane, she heard the siren of a fire vehicle and felt petrified at the sound. She stated that as an artist she feels things deeply and that the fear passed strongly through her body.

Ms. Cooper stated she saw the fire vehicle, which was approximately 10 cars down, move out of the second lane and into the third lane, travelling in the opposite direction to the traffic.

Ms. Cooper stated that she halted a second to assess what to do. She then made the decision not to turn back, for fear of being hit by a car moving out of the way for the fire vehicle. She stated that, instead, she quickened her pace, believing if she moved quickly she could safely get across the road. The other pedestrians with her were also hurrying. The person behind her, in fact, ran past her.

At some point when she got into the fourth lane, Ms. Cooper stated that she found herself airborne and fell into a steel pole at the curb. She stated that she has no recollection of having tripped. When she fell, her head and shoulder were on the sidewalk and the rest of her body was on the road.

Ms. Cooper testified that the time between when she heard the siren and when she fell was a matter of seconds. She stated that the Fire Captain in the vehicle coming up on the third lane had seen her fall and stopped at the intersection to assist her. Her injuries were very serious. An ambulance was called and she was taken to the hospital.

An Emergency Incident Report² by Michael Draper of the Fire Services states in part as follows:

… Patient fell on roadway getting out of the way of aerial going to another call. We notified dispatch we were unable to go to original call and were staying with patient. She was 52 years old (sic) and here (sic) name was Victoria Cooper it appeared she had a broken right shoulder. She had her dog with (sic) and we took it back to station for her to pick up. Das 831 transported her to western hospital.

Ms. Cooper testified that the roadway where she fell was clear. There was no evidence presented to show the contrary.

SUBMISSIONS

Ms. Cooper’s Submissions

Ms. Cooper submits that the use and operation of an automobile directly caused her injuries and that the incident which occurred on February 22, 2006 constitutes an “accident” as defined by the Schedule. She submits that the use and operation of the fire vehicle played a dominant role in the incident and there were no intervening factors that broke the chain of events that directly led to her injuries.

Ms. Cooper submits that the use and operation of the fire vehicle was being used in the normal course of being on the road attending to an emergency. The siren attached to the vehicle had a legitimate purpose. This being an emergency vehicle, it was appropriately using its sirens in the ordinary use to which the vehicle is put.

Ms. Cooper submits that her reaction of fear to the sudden sound of the siren was reasonable in the circumstances. She points out that the purpose of the siren is a warning that something dangerous is happening. The siren is saying to motorists and pedestrians – “get out of the way, here we come quickly, we are on our way to an emergency.”

Ms. Cooper submits that the perceived sense of danger that the siren instilled in her caused her to quicken her pace to remove herself from the danger. While she believed she could cross the road safely, this belief did not overshadow her original panic and need to move quickly. The period of time from when she heard the siren, quickened her pace, and then fell, was a matter of seconds.

Ms. Cooper submits that it is common knowledge that when one walks quickly, the chances of falling increase when compared to someone walking at a normal pace. Ms. Cooper submits that hearing the siren and seeing the fast approaching fire vehicle directly caused her to quicken her pace and to hurry out of the way. This in turn directly resulted in her fall. Ms. Cooper submits there were no intervening factors on the roadway that broke the chain of events that caused her fall.

Wawanesa’s Submissions

Wawanesa submits that in order to satisfy the “purpose test”, as articulated in the Supreme Court of Canada case of Amos v. Insurance Corporation of British Columbia³, the incident must arise out of the use and operation of a motor vehicle.

Wawanesa submits that the incident in this case fails the “purpose test” as there was no use and operation of a motor vehicle involved in Ms. Cooper’s fall, since the fire vehicle was 10 cars away when Ms. Cooper heard the siren. Wawanesa contends that “… it cannot be said that the incident arouse [sic] out of the use and operation of an automobile, as walking across the street does not result from the ‘ordinary or well known activities to which automobiles are put.’” Wawanesa submits that “the incident at issue never involved an automobile, and as such, the determination of whether an accident occurred, is precluded from the outset.”

Wawanesa further submits that even if Ms. Cooper can satisfy the purpose test, Wawanesa’s position is that “…it was not the use or operation of an automobile that directly caused the Applicant to fall.” [Emphasis in original written submissions]

Wawanesa submits that Ms. Cooper quickened her pace because she felt she could safely get across the street. Wawanesa submits that hearing the siren and seeing the fire vehicle did not cause the Applicant to directly fall. It caused her to quicken her pace to get across the street safely. Wawanesa submits that the sound of the siren would have been a direct cause if Ms. Cooper had immediately fallen. However, because she was able to assess the situation and quicken her pace and move safely out of the way of the oncoming fire vehicle, it cannot be said that her fall was directly the result of the use or operation of an automobile.

With respect to the issue of urgency and danger, Wawanesa submits that, if such were the case, if the fire vehicle was going so fast, it would not have been able to stop and would have hit Ms. Cooper. Instead, the Fire Captain saw her fall and was able to stop safely in the third lane in front of her. Wawanesa submits that Ms. Cooper had moved out of danger when she fell in the fourth lane as the fire vehicle was traveling down the third lane. Accordingly, Wawanesa submits this was a situation of a “slip and fall” and not an accident pursuant to the Schedule.

The Law

Subsection 2(1) of the Schedule, which was enacted on November 1, 1996, defines “accident” as follows:

“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.

Prior to November 1, 1996, the definition was more expansive in that it encompassed impairments caused “indirectly or directly” by the use or operation of an automobile. The post-November 1996 definition limited the definition to “directly causes.”

In the Court of Appeal decision of Chisholm and Liberty Mutual Group,⁴ Justice Laskin clearly confirms that the new definition of “accident” significantly narrows the scope of what can be considered an accident, in comparison to the definition prior to November 1996.

A leading arbitration case in interpreting the revised definition of an accident is Petrosoniak and Security National Insurance Company.⁵ In that case, Arbitrator Novick found that the deletion of the word “indirectly” from the definition now, required that there be a direct link between the circumstance that caused an injury and the incident. In interpreting the new definition of “accident,” Arbitrator Novick adopted the definition of “direct cause” found in Black’s Law Dictionary where the phrase was 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. [emphasis omitted]

This interpretation of “directly causes” has been consistently adopted by both arbitrators and judges in interpreting the post-November 1996 definition of “accident.”

A number of arbitration cases have discussed the new definition in depth and its effect on the concept of what is an “accident” post-November 1996. I have relied on them and the Chisholm case to extract the following propositions applicable to dealing with the issue of what is an “accident” pursuant to subsection 2(1) of the Schedule. These are:

The use or operation of a motor vehicle must directly cause the impairment.⁶
A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.⁷
Direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim’s injuries, and one of the direct causes must be the use or operation of a motor vehicle.⁸
The motor vehicle need not come into direct physical contact with the accident victim.⁹
The role played by the motor vehicle must be more than just the location, opportunity or motive.¹⁰
The motor vehicle must be a dominant feature in the incident, and not ancillary to it.¹¹
Time, proximity, activity and risk are factors that are relevant in determining the causal connection between the use or operation of the automobile and the loss.¹²
The injury must be a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.¹³

These principles are incorporated in my analysis below.

ANALYSIS AND FINDINGS:

The burden of proof rests with Ms. Cooper to show that, on a balance of probabilities, she was more likely than not injured as a result of an “accident” pursuant to subsection 2(1) of the Schedule. For the following reasons I find that Ms. Cooper has satisfied her burden of proof.

There was only one witness at the hearing, Ms. Cooper. I found Ms. Cooper to be a credible and reliable witness. She provided her testimony in a detailed and straightforward manner. There were no inconsistencies or discrepancies in her testimony, not even of a minor nature.

Accordingly, I make the following findings of fact:

that Ms. Cooper began to cross College Street at a normal pace;
that the sudden sound of the siren frightened her and caused her to increase her pace and hurry across the road to get out of the way of the oncoming fire truck;
that the incident of her fall took place in a matter of seconds after she heard the fire vehicle siren and saw the vehicle move into the third lane; and
that it was a bright sunny day and that the roadway was clear.

Pursuant to the Chisholm and Petrosoniak cases, in order for the injuries Ms. Cooper received from her fall to be considered as a result of an “accident” under the Schedule, a motor vehicle must be a dominant feature in the incident, and there must be an unbroken chain of events that starts with the use or operation of a motor vehicle and ends with the resultant damages. On the facts of this case, I find that the use and operation of the fire truck was the dominant feature in the incident and the direct cause of Ms. Cooper’s injuries.

There have been a number of arbitration decisions¹⁴ that have held that even though there is no direct physical contact by a motor vehicle with a person who received injuries from a slip and fall, where it can be shown that the use or operation of a motor vehicle directly caused the slip and fall, the incidents were found to be accidents pursuant to subsection 2(1) of the Schedule.

It is clear from the facts of the present case that the only reason Ms. Cooper quickened her pace when crossing the street was to get out of the way of the oncoming fire vehicle. This fact not only comes from Ms. Cooper’s testimony but also from the observations made in the Emergency Incident Report, noted above. Although Ms. Cooper stated that she felt if she quickened her pace, she could cross the street safely, she nevertheless was frighten by the fire vehicle’s siren and the fact that it was racing to the intersection in the third lane. Despite Ms. Cooper’s belief that she could get across the street safely, I find that her subsequent fall was directly caused by her fear of danger and her need to get away from the oncoming fire vehicle.

As noted in Chisholm, a direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim’s injuries, and one of the direct causes must be the use or operation of a motor vehicle. On the facts of this case, I find that it was the use and operation of a motor vehicle, namely, the sound of the siren and the fire vehicle racing down the third lane of the street, that set in motion a train of events which forced Ms. Cooper to take evasive action to get out of the way of the oncoming fire vehicle. This action, the quickening of her pace, resulted in her fall. There is no evidence of any intervening factor that broke this chain of events.

Accordingly, for these reasons I find that Ms. Cooper was injured as a result of a motor vehicle accident pursuant to subsection 2(1) of the Schedule.

EXPENSES:

If needed, the parties may now speak to me on the issue of expenses within 30 days of receipt of this decision. The parties are requested to do so by way of written submission.

February 14, 2008

Joyce Miller Arbitrator

Date

Financial Services Commission of Ontario