Tribunal File Number: 17-009102/AABS
Case Name: 17-009102 v Western Assurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
N.M.
Applicant
and
Western Assurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: Louis Del Signore Jr.
Counsel for the Respondent: Lora Castellucci
Written Hearing on: June 25, 2018
OVERVIEW
1The applicant, N.M., was injured in an incident on September 5, 2017 when she tripped and fell in the open but netted service bay of a mechanic’s garage while seeking an emissions test on her vehicle. As a result of her fall, she suffered three fractures to her right foot, one fracture in her left foot and bruising to her lower body. N.M. sought benefits from the respondent, Western Assurance, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2N.M.’s application for benefits was denied by Western on the grounds that the injuries sustained did not occur as a result of an accident, as it is defined by the Schedule. It is on this ground that Western sought a preliminary issue hearing before the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for determination of whether the incident that led to N.M.’s injuries was an accident. The parties participated in a case conference but were unable to resolve the issue, and proceeded to this written hearing.
ISSUE TO BE DECIDED
3The following is the sole issue to be decided, as per the case conference order of Adjudicator Kowal, dated May 11, 2018:
i. Was the incident which occurred on September 5, 2017 an “accident” as defined in s. 3(1) of the Schedule?
RESULT
4I find on the evidence that N.M.’s injuries were not sustained as a result of an accident, as it is defined by the Schedule.
THE INCIDENT
5The facts of the incident are not in dispute. On September 5, 2017, N.M. drove her vehicle to Oil Changers for an emissions test. Upon pulling into the service bay, she turned off the engine, left the keys in the ignition and exited her vehicle. Upon exiting the vehicle, she spoke with an attendant beside her vehicle and was handed a clipboard of information and instructed to proceed to the waiting area.
6With clipboard in hand, N.M. walked around her vehicle towards the waiting area, which was located on the opposite side of the garage. As she moved away from her vehicle, N.M. tripped on the netting that overlaid the open service bay, falling into the netting. As a result of this fall, she sustained her injuries.
7The parties agree, and the surveillance photos confirm, that at the time of the incident, N.M. was not touching her vehicle, was facing the waiting area away from her own vehicle, was not in contact with or in close proximity to another vehicle and was not attempting to avoid another vehicle while walking.
ANALYSIS
Was the incident an “accident” as defined by the Schedule?
8I find that the evidence indicates that the incident was not an accident, as defined by the Schedule, because the use of her vehicle was not the direct cause of N.M.’s injuries and that the netting on which she tripped was an intervening cause.
9The Schedule defines an “accident” as 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.2
10The test for accident determination is well-settled. In the Supreme Court case of Amos v. Insurance Corporation of British Columbia,3 the Court set out a two-part test to determine whether an insured was in an accident that entitles them to statutory accident benefits: the Purpose Test (did the accident result from the ordinary and well-known activities to which automobiles are put?) and the Causation Test (was there some causal relationship between the applicant’s injuries and the ownership, use of operation of the vehicle, or was it merely incidental or fortuitous?).
11More recent jurisprudence has narrowed the causation element, setting out a two-branch test: 1) was the use or operation of the vehicle a cause of the injuries? and, 2) if so, was there an intervening act that cannot be said to be in the “ordinary course of things” that led to the injuries?4 The onus is on N.M. to prove that she sustained her injuries as a result of an accident.
Purpose
12I find that it is quite clear that the incident resulted from an ordinary and well-known activity to which automobiles are put.
13It is well-known that an owner of a vehicle in the province of Ontario is required to secure an emissions test for older vehicles at scheduled intervals. In addition, the parties agree that N.M. was in attendance at Oil Changers on the day of the incident in order to get an emissions test. N.M.’s vehicle was parked in the bay for service, which is a well-known use or activity of a vehicle.5 There is nothing unusual or aberrant about N.M.’s reason for being at Oil Changers.
14Accordingly, as there is no active use component to the purpose test, I find that the incident resulted from an ordinary and well-known activity to which automobiles are put, namely, receiving service. The parties’ disagreement rests on causation.
Causation
15I find, on the evidence, that N.M. does not satisfy the causation test because her injuries were not directly caused by the use of her vehicle and that the netting covering the open service bay on which she tripped was an intervening cause, sufficiently removed from her operation of the vehicle.
16By all accounts, I find that N.M. drove into the Oil Changers service bay, where she parked, turned off her engine and exited her vehicle, without incident. After a discussion with the attendant, she was handed a clipboard and instructed to walk away from her parked vehicle towards the waiting area. In my view, upon walking away from her vehicle, N.M.’s use and operation of her vehicle came to an end because the use and operation transferred to the Oil Changers’ attendant in order to conduct the emissions test.
17After her use and operation of the vehicle ceased, N.M. continued to walk away from her vehicle. She did not have her car keys. She was not in contact with the vehicle. The surveillance timeline photos—which I found very compelling—showed N.M. looking down at the clipboard as she walked. As she moved further away from her vehicle, she walked directly into the centre of the open service bay. Here, she tripped on the edge and fell into the netting laid over the open service bay,6 resulting in her injuries. As she was several metres away from her vehicle at this time, I find that N.M.’s vehicle was not a direct cause of her trip and fall.
18The risks associated with the normal operation of a vehicle must, at some point, give way to the risks associated with simply walking and moving about in the world. Causation under the Schedule can extend out from a motor vehicle, like ripples on a pond, once the insured has disembarked. However, I find that this sphere of causation does not extend out indefinitely once the use and operation of the vehicle has ceased simply because of the environment the vehicle is in. I find support for this rationale in the case law submitted by the parties, specifically, Webb v. Lombard General Insurance Canada7 (finding that the use or operation of a vehicle generally ends when the driver leaves the vehicle and walks away); Mahadan and Co-operators General Insurance Co.8 (finding that, while the driver’s vehicle had led her to the location of her injuries, her injuries were sustained from a new and independent source other than her vehicle); and Stolove and State Farm9 (finding that the location of an incident is not determinative of an accident occurring, where the driver was injured by a garage door in a storage facility).
19N.M. submits that the netting on which she tripped was a normal risk in the use of owning an automobile and that a normal risk is determined by an examination of the physical situation and circumstances surrounding the accident. She argues that the netting over the open service bay constitutes a risk akin to fire hazards, electrical outlets and equipment, which have all been found to be risks associated with the maintenance of a vehicle.10 On this basis, N.M. argues that her vehicle had a continuing causal role in her injuries and remained a dominant feature in the incident.
20I disagree. Although the intervening cause—the netting over the open service bay—is related to the use of an automobile simply by virtue of the emissions test having to occur in a garage, I find the intervening cause was not a “normal” risk associated with the risks of using an automobile, but rather, a troubling and obviously dangerous flaw in the layout of this particular garage and, perhaps to a larger extent, a lack of appropriate signage and warning from the establishment.
21An obligatory emissions test is a normal occurrence for a driver in Ontario; fracturing both of your feet while getting an emissions test is, in my view, not a normal occurrence. Here, something that is not normal intervened and this intervention occurred after N.M.’s use and operation of the vehicle had ceased. As a result, I find that N.M. falling into the netting of the open service bay is beyond the realm of the “ordinary course of things” and acted as an intervening cause in the chain of events that led to N.M.’s injuries.
Misc.
22The parties made a number of submissions on N.M.’s health issues—alleged dizziness, tremors and leg weakness—that may or may not have affected N.M. on the day of the incident, as well as her three previous incidents of slip and fall. While I am alive to these submissions, I ultimately found it unnecessary to rely on this information in determining causation.
23On the evidence, I find that it was the edge and netting covering the open service bay that caused N.M. to trip and fall, leading to her injuries. Further, I find that she was sufficiently removed from the use and operation of her vehicle at the time she sustained those injuries. While this fact situation seems ripe for an occupier’s liability claim, it does not satisfy the requirements for a statutory accident benefits claim under the Schedule, as it was not an accident, as it is defined by section 3(1).
CONCLUSION
24For the reasons outlined above, I find that N.M.’s injuries were not sustained as a result of an accident, as it is defined by the Schedule.
25Accordingly, the application is dismissed.
Released: July 20, 2018
_________________________
Jesse A. Boyce, Adjudicator
Footnotes
- O. Reg. 34/10.
- Id., at s. 3(1).
- 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, at paras. 17-18.
- Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA).
- Economical Mutual Insurance Co v. Caughy, 2016 ONCA 226.
- I note that in submissions, this open area in the garage, covered by netting, has several names: “opening in the floor of the garage”; “netting spread over the opening in the floor of the garage”; “an open great (sic)”; a “hole”; a “man hole”; “netting and or the gap in the floor the netting was spread over”; “floor gap and netting”; and “hole in the garage floor”. For clarity, I have simply opted for “open service bay” and, where applicable, “netting”.
- Webb v. Lombard General Insurance Canada, FSCO Appeal P06-00038.
- Mahadan and Co-operators General Insurance Co., FSCO Arb. A00-000489.
- Stolove and State Farm, FSCO A16-000215.
- Peter Fu and Kingsway General Insurance Co., FSCO Arb. A-04-00002.