Fee Nung Wong v. St. Paul Fire & Marine Insurance Company, 2010 ONFSCDRS 117

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 117

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BETWEEN:

FEE NUNG WONG

Applicant

and

ST. PAUL FIRE & MARINE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator John Wilson

Heard: June 17, 2010 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Darryl Singer for Ms. Wong

Michael Chadwick for St. Paul Fire & Marine Insurance Company

Issues:

The Applicant, Fee Nung Wong, was injured in an accident on March 13, 2008. She applied for statutory accident benefits from St. Paul Fire & Marine Insurance Company (“St. Paul”), payable under the Schedule.¹ St. Paul declined to pay weekly income replacement benefits on the basis that Ms. Wong’s accident was not a motor vehicle accident as defined by section 2. (1) of the Schedule.

The parties were unable to resolve their disputes through mediation and Ms. Wong 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. Wong injured as a result of an “accident” as defined in section 2. (1) of the Schedule?

Result:

Ms. Wong was not injured as a result of an “accident” as defined in section 2. (1) of the Schedule.

EVIDENCE AND ANALYSIS:

There is no dispute that Ms. Wong was a passenger on a motorcoach owned by AZ Bus Tours, run by Tai Pan Tours and insured by St. Paul on the day that she suffered certain injuries.

She was travelling back to Toronto from Casino Rama early in the morning of March 13, 2008. The bus had a number of drop-off points in Toronto including the parking lot of a Kentucky Fried Chicken (“KFC”) outlet on Gerrard Street East, where Ms. Wong intended to leave the bus.

It was early, well before dawn on a cold grey morning when Ms. Wong descended the bus steps past the tour guide, Mr. Tim Leung, and began to walk across the parking lot, whose surface, unbeknownst to Ms. Wong, was covered with black ice.

At some point Ms. Wong fell, injuring herself. Counsel for Ms. Wong asserts that there is some dispute as to whether she slipped and fell immediately upon disembarkation, or whether she had begun to traverse the parking lot before she lost her footing and fell. He suggests that the former scenario is more likely what happened.

From the point of view of eligibility for accident benefits, the manner and timing of Ms. Wong’s fall is crucial. Accident benefits are only available to persons whose injuries arose from a motor vehicle accident. The Schedule defines such an accident as follows:

(1) In this Regulation,

“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; (“accident”)

In this matter, Ms. Wong alleges that any impairments she suffered as a result of her fall were directly caused by the use or operation of the motorcoach in which she travelled from Casino Rama to Toronto. St. Paul on the other hand takes the position that however unfortunate Ms. Wong may have been, she actually suffered a slip and fall on an icy parking lot that was not in the control of the operator, and which was not occasioned by the use or operation of a motor vehicle.

In this matter, while Ms. Wong has the general onus of proving that her injuries come within the ambit of the Schedule, St. Paul, however brought this as a motion for a declaration that the incident out of which this claim arises was not an “accident” as defined by section 2. (1) of the Schedule. Consequently, St. Paul has the burden of proving any facts it relies upon in support of the above assertion.

In this matter however, the facts speak for themselves. Indeed as Lord Dunedin observed:

Now, in conducting any inquiry, the determining tribunal, be it judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on the side of the other, or, as it is often expressed, that in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.²

Several documents were filed as evidence in this hearing. In addition, St. Paul called the tour guide, Mr. Leung, to testify as to the circumstances surrounding Ms. Wong’s disembarkation from the bus. Neither Ms. Wong nor any other witnesses testified on her behalf.

Although no agreed statement of facts was filed, there was little controversy about the timing and circumstances surrounding Ms. Wong’s departure from the motorcoach. The real issue is whether Ms. Wong’s slip and fall on the ice of the parking lot arose directly from the use of the motorcoach.

An initial incident report created following the incident notes that at 6:55 a.m. the bus arrived at the designated drop-off point. Mr. Leung, the tour guide, got off the bus first and “carefully assisted all customers off the bus.” Mr. Leung added:

While I was helping customers off, Wong Fee Nung (887537) who have already got off from the bus safely, she fell down about about [sic] 3 steps away from the bus. Immediately I went over to help her up and ask whether she is ok. She didn’t give me an answer and took off with her taxi which I have prepared for her.

In a more detailed report dated July 23, 2008, Mr. Leung elaborated:

I stand at the bottom of the steps and for those that need assistance I will give them my hand and help them down. I helped that lady down. I gave her my hand and she held it. She was the 3^rd person that got off of the bus. I helped her and she stepped off of the bus and on to the ground. She walked away and I continued to help people down. I helped one more person after her from the bus and then I heard a noise. I turned around and the lady that I was just helping down went over to Wong Fee Nung. Where Wong Fee Nung fell was at least a distance of one to two metres away from the door of the bus. She didn’t fall her first step down when getting off of the bus. She walked away from the bus and fell in the parking lot of the KFC Restaurant.

While Mr. Leung’s testimony was submitted to extensive cross-examination, there is no alternative evidence before me that would establish any different fact situation. I also emphasize that I found Mr. Leung’s testimony to be credible.

While Ms. Wong would have me believe that her fall was intrinsically associated with her disembarkation from the coach, she did not testify, nor did she tender other evidence tending to show that the accident happened in a manner substantially different than that outlined by Mr. Leung.

The core of the issue before me then is whether someone, having stepped off a bus and proceeded “at least a distance of one to two metres away from the door of the bus” before falling, was involved in “an incident in which the use or operation of an automobile directly causes an impairment”.

Someone may well be responsible to compensate Ms. Wong for her injuries, but in St. Paul’s eyes it is not its role to do so.

Not surprisingly, there is a significant jurisprudence on this issue since it is the key to obtaining at least some compensation for injuries where an automobile may be involved.

The Chisholm³ decision at the Court of Appeal level provides guidance in differentiating between accidents which were merely related or coincidental to the use or operation of a motor vehicle and ones where there is a direct causal link between the accident and the use or operation of a motor vehicle.

Chisholm involved a person who was severely injured in a drive-by shooting who claimed entitlement to statutory accident benefits from his own insurer. Laskin J.A. dealt squarely with the interpretation issue at the heart of this arbitration:

That brings me to Chisholm’s final submission, a submission that, in my view, goes to the heart of this appeal because it focuses on the meaning of “directly causes”. Chisholm submits that the use or operation of his car is a direct cause of his injuries because he would not have been wounded unless he had been confined in his car. In substance, Chisholm contends that the direct cause requirement can be satisfied by the “but for” test of causation. But for being in his car he would not have been injured. I do not accept this submission.

While it may be easily said that but for the fact that Ms. Wong was travelling on a motorcoach that fateful morning, she would never have slipped and fell in the parking lot of the KFC store, this is in itself insufficient to establish direct causation.

The “but for” test of causation serves as an exclusionary test. Its purpose is to eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome. If the “but for” test is not met then the injury would have occurred regardless of the act or omission in question. If the “but for” test is met then the act or omission in question is a factual cause of the injury. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability.

Here, in a broad sense, one could say that the use or operation of the car Chisholm was driving was a factual cause of his injuries. As he argued, but for driving his car he would not have been shot. Legal entitlement to accident benefits, however, requires not just that the use or operation of a car be a cause of the injuries but that it be a direct cause.

Laskin J.A. concluded his analysis:

[E]ven accepting that the use of Chisholm’s car was a cause of his impairment, a later intervening act occurred. He was shot. An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car -- if it is “part of the ordinary course of things”. … Gun shots from an unknown assailant can hardly be considered an intervening act in the “ordinary course of things”. The gun shots were the direct cause of his impairment, not his use of his car.

Fortunately, Ms. Wong, unlike Mr. Chisholm, was not shot. She did, however, suffer certain injuries in falling on the ice. Implicit in the Insurer’s argument however is the assertion that the slip and fall which caused Ms. Wong’s injuries was an intervening act that took any injuries out of the realm of motor vehicle accident benefits and into the domain of tort and occupier’s liability.

Laskin J.A. made the following comment in Chisholm:

A direct causation requirement conjures up memories of the famous English tort case of In Re Polemis & Furness, Withy & Co. Ltd., [1921] All E.R. Rep. 40, [1921] 3 K.B. 560, where recovery was allowed for damages that were not a foreseeable result of the defendant’s negligence but were directly caused by it. When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.

If Ms. Wong’s fall was the foreseeable result or the last link in a continuous and direct chain of causation from the disembarkation of the motorcoach, then it might be seen as directly caused by the use or operation of a motor vehicle.

Scrutton L.J. summarized the background in Re Polemis as follows:

The steamship Thrasyvoulos was lost by fire while being discharged by workmen employed by the charterers. Experienced arbitrators, by whose findings of fact we are bound, have decided that the fire was caused by a spark igniting petrol vapour in the hold, the vapour coming from leaks from cargo shipped by the charterers, and that the spark was caused by the Arab workmen employed by the charterers negligently knocking a plank out of a temporary staging erected in the hold, so that the plank fell into the hold, and in its fall by striking something made the spark which ignited the petrol vapour. On these findings the charterers contend that they are not liable for two reasons: first, that they are protected by an exception of “fire” which in the charter is “mutually excepted”; secondly, that as the arbitrators have found that it could not be reasonably anticipated that the falling of the board would make a spark, the actual damage is too remote to be the subject of a claim.

His Lordship concluded:

To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact caused sufficiently directly by the negligent act, and not by the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. This is the distinction laid down by the majority of the Exchequer Chamber in Smith v London and South Western Rail Co, and by the majority of the court in bane in Rigby v Hewitt (1) and Greenland v Chaplin (2) and approved recently by LORD SUMNER in Weld-Blundell v Stephens (6) and SIR SAMUEL EVANS in HMS London (5). In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.

This is not a negligence case however. Foreseeability is not as critical as the direct connection between the motorcoach and the injuries. Indeed it is plausible that if Ms. Wong stumbled or tripped on the stairs of the coach, and tumbled headlong to the ground, finishing some metres away from the coach, her injuries sustained in ultimately hitting the ground could be found to arise directly from the operation of a motor vehicle - the motorcoach in this case.

Such a scenario and such a conclusion would be consistent with Re Polemis. It would not, however, be consistent with the evidence in this arbitration. As noted earlier, the only evidence before me as to the nature of the fall was Mr. Leung’s description of the fall. His evidence is basically uncontradicted, and notwithstanding the fact that it could also be self-serving, it is consistent and credible.

Mr. Leung described a deliberate descent of the stairs from the coach, aided by his arm, with Ms. Wong alighting without distress. There was a separation in distance and time from the disembarkation from the coach and the subsequent slip and fall.

Had there been probative evidence of a different scenario, then Ms. Wong should have adduced it. She did not. Nor did she testify in support of her own claim.

Consequently, I accept Mr. Chadwick’s characterization of the accident as a slip and fall that was not directly connected to her disembarkation from the motorcoach.

While Ms. Wong may rightly question the wisdom of the bus operators letting her off on a dark, icy parking lot, or with KFC for not attending to a potentially treacherous parking lot, those issues are irrelevant in considering whether St. Paul has any liability to pay statutory accident benefits.

I find therefore that the incident that gave rise to Ms. Wong’s injuries did not directly arise from the use or operation of a motor vehicle.

The existence of a motor vehicle accident is a pre-condition for accident benefits.

That being said, in the absence of direct causation from the use or operation of a motor vehicle, there is no basis for Ms. Wong’s claim for accident benefits.

Consequently, I dismiss her application for arbitration.

EXPENSES:

Both Ms. Wong and St. Paul have claimed expenses in this matter. However, no submissions were made by either party as to an award of expenses.

If the parties are unable to agree on the disposition of expenses they may make brief written submissions on this issue provided that notice is given in a timely fashion.

September 30, 2010

John Wilson Arbitrator

Date