17-006380 v. Liberty Insurance, 2018 CanLII 97835

Date: 2018-08-09

Tribunal File Number: 17-006380/AABS

Case Name: 17-006380 v Liberty Insurance

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:

Applicant

Applicant

and

Liberty Insurance

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: APPEARANCES:

Rupinder Hans

For the Applicant:

Gurdeep S. Nanua, Counsel

For the Respondent:

Aaron S. Murray, Counsel

Heard In-Writing:

March 19, 2018

I. OVERVIEW

1On September 14, 2016, the applicant was struck in the head by an unidentified cyclist travelling on the sidewalk while she was either taking something out or putting something into her work vehicle, and she sustained physical and psychological injuries.

2The applicant applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), including for occupational therapy, psychological services, physiotherapy services, and attendant care benefits. The respondent Liberty Insurance denied payment for two reasons.

3The first reason for the denial is that the circumstances of the loss did not fall under the definition of an “accident” as defined by section 3 of the Schedule. The insurer stated that the direct cause of the injury was a cyclist, an independent intervening event that did not emanate from, or arise out of, an ordinary use normally attached to an automobile.

4The second reason relates to section 61(1) of the Schedule, which stipulates that an insurer is not required to pay benefits to an insured person who is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”), S.O. 1997, c. 16, Sched. A, unless the applicant opted out of the WSIA for the purposes of bringing a tort action against the responsible party. The respondent, in its submissions, has conceded this issue and as such I do not need to make a finding on this issue.

5The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”). A case conference was held on January 11, 2018, and the parties were unable to resolve the issues in dispute. A written preliminary hearing was scheduled.

6A review of the evidence and submissions forms the basis for this preliminary issue decision.

II. PRELIMINARY ISSUE

7Does the incident meet the definition of an accident under section 3(1) of the Schedule?

III. RESULT

8I find that the incident meets the definition of an “accident” as defined in section 3(1) of the Schedule.

IV. DISCUSSION

A. The Facts

9Certain facts are not in dispute. At the time of the incident, the applicant was working as a letter carrier for Canada Post Corporation (“Canada Post”). On September 14, 2016, in the course of her employment with Canada Post, the applicant parked her Canada Post vehicle next to a sidewalk. She got out of her vehicle and circled around it until she was standing on the sidewalk. She was standing on the sidewalk either taking something out of the vehicle, or putting something back in, when she was suddenly struck in the head by an unidentified cyclist travelling on the sidewalk. She lost consciousness immediately. Her next memory was of waking up in an ambulance on the way to the hospital, and then she lost consciousness again. She has no memory of what happened after she was struck in the head until she woke up in the ambulance.

10The applicant suffered a traumatic head injury, and provides the Hospital discharge summary dated September 18, 2016, which contains the diagnosis of subdural/slash subarachnoid hemorrhage secondary to traumatic head injury, seizure secondary to traumatic head injury, and left frontal and left temporal lobe contusion secondary to traumatic brain injury. She also suffered a seizure while in the emergency room.

11There is a disagreement between the parties as to whether or not any part of the applicant’s body made contact with the vehicle. The respondent submits that there is insufficient evidence to establish that the applicant made contact with the vehicle, or that such contact was a cause of any injury. The respondent points to several documents which make no mention of the applicant’s body coming into contact with the vehicle, including the Ambulance call report, the Hospital discharge report, the application for accident benefits, the applicant’s examination under oath, information that she provided to various physicians and WSIB, and the report to the police. Instead, the respondent asserts that the documents suggest that after impact the applicant was knocked to the ground, or fell onto concrete. The respondent further points to the applicant’s statements that she lost consciousness immediately, and had no memory of what happened to her body after she was struck in the head. The respondent states that the only evidence from the applicant is her “self-serving” affidavit.

12Based upon the evidence before me, I find the applicant’s affidavit evidence is convincing. I am persuaded by the applicant’s assertion that her mail is sorted and kept on the passenger side of the vehicle where she normally goes to retrieve it, and return it after delivery. She states that she was standing on the sidewalk with the passenger door open, and was either still in the process of dealing with the mail, or about to close the passenger door when she was struck by the cyclist. There is no dispute that the applicant was either taking something out or putting something into the vehicle. She states that she believes that her right shoulder (along with other parts of her body) made contact with the passenger door of the vehicle as she was falling after the blow to the left side of her head, causing her to suffer a dislocated shoulder. I see no reason to doubt the applicant’s evidence, and find it convincing.

13I am also persuaded by the applicant’s submission that at the time of her providing information for the Ambulance call report and the WSIB application she was disoriented and suffering from post-concussion symptoms from a head injury. I note that the applicant suffered a seizure at the hospital the same day she signed the WSIB application. Similarly, the medical reports at the hospital were completed based upon the ambulance report and the statements she made while suffering from a head injury.

14With regards to the statement to the police, the applicant was not asked to specify in detail how the accident occurred, and what specific injuries she suffered.

15The applicant asserts that the In-Home assessment and psychological assessments were not completed for the purposes of assessing the causation test, and that questions of what part of her body struck and where, were never asked. I note that the focus of the assessments was to assess the applicant’s injuries/impairments, and not make a determination as to causation.

16With regards to the application for accident benefits, the applicant is correct in stating that information was provided to indicate the injuries the applicant suffered, and the application does not ask any direct questions related to the “causation” test, and what body parts were impacted, and where.

17The applicant points out that during her examination under oath she answered all questions honestly, and that no follow up questions were asked with regards to whether she now knows what caused her specific injuries.

18Based upon the evidence before me, I find that the applicant’s body did make contact with the vehicle. She was retrieving something from, or putting something into the passenger side of the vehicle (most likely mail), with the passenger door open. In my view, her assertion that when she was struck by the cyclist, she came into contact with the passenger door is convincing.

B. The Law

19In order to qualify for benefits under the Schedule, a person must be an insured person who was involved in an “accident.”

20Section 3(1) of the Schedule defines an “accident” as follows:

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.

21The parties agree that the two-part test to determine whether the applicant was involved in an accident was originally set out by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, (1995) 1995 CanLII 66 (SCC), 3 S.C.R. 405:

• The purpose test: did the accident result from the ordinary and well-known activities to which automobiles are put?

• The causation test: is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?”

22In Amos, a direct or proximate causal relationship is not necessarily required between the plaintiff’s injuries and the ownership or use or operation of a vehicle.

23Since the time of this decision, while the purpose test has remained relatively constant, the case law has evolved with regards to the causation test. The parties reference Chisolm v. Liberty Mutual Group, (2002) 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (ON CA); Greenhalgh v. ING Halifax Co., (2004) 2004 CanLII 21045 (ON CA), O.J. No. 3485 (ON CA), Economical Mutual v. Caughy, 205 ONSC 3251, and Downer v. The Personal Insurance Company, 2012 ONCA 302, which have all framed the causation test more narrowly.

24In addition, Section 3(1) requires a direct cause between the insured’s injury and the use and/or operation of a vehicle.

25At this time, and as set forth in Greenhalgh, and reiterated in Downer, the causation test requires two questions to be answered:

[i]. Was the use or operation of the vehicle a cause of the injuries?

[ii]. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries.

26Downer makes clear that:

Under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.

27Finally, the applicant has the onus of establishing that her injuries were the result of an “accident.”

C. Analysis

28Based upon the evidence before me, I find that the applicant has met her burden and established that the incident was an “accident” as defined in section 3(1) of the Schedule. Based upon a balance of probabilities she has met both the purpose test, and the causation test. My reasoning is below.

i. The Purpose Test

29The respondent concedes that the purpose test is met as the applicant was engaged in an ordinary and well known activity attached to a vehicle if she was retrieving mail from her vehicle. There is, therefore, no need to further discuss this test.

ii. The Causation Test

30The parties diverge as to whether the applicant has met the causation test.

31The respondent submits that the applicant does not meet the causation test because it cannot be said that the vehicle was a direct cause of the applicant’s injuries. Even were it to be found that the applicant had contact with the vehicle, which the respondent disputes, the intervening act of the cyclist striking the applicant was the cause of the injuries, and not the operation or use of the vehicle. For the reasons set forth below, I find that there was a direct causal link between the vehicle and the applicant’s injuries.

32With regards the test for causation, both parties rely upon Greenhalgh v. ING Halifax Insurance Co., which provides the following considerations as guidance in determining whether or not the causation test is met:

a. The “but for” test.

b. The “intervening act” consideration. An intervening cause that may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile.

c. The “dominant feature” consideration. Was the use or operation of the automobile the dominate feature of the incident?

33The applicant submits that “but for” the vehicle being parked, and “but for” the applicant being on the passenger side of the vehicle sorting out mail, her injuries would not have occurred. The cyclist who came from behind the vehicle did not see the applicant because the vehicle was parked, impairing his vision, and the applicant was standing at the passenger side of the vehicle and facing it while sorting mail. The applicant points out that she was struck on the left side of her head which demonstrates that she was not directly facing the cyclist upon impact. She was looking into the vehicle and the cyclist came from the left of her. Consequently, the applicant states that using and operating the vehicle on the passenger side was a direct cause of her injuries. The applicant points out that there was no barrier between the street and sidewalk. The collision caused her to fall back and collide with the passenger door of her vehicle, and then fall to the ground. She suffered a dislocated right shoulder and other injuries after being hit.

34The applicant asserts that use and operation of the vehicle was a dominant feature of the incident. I agree. Specifically, the applicant was delivering mail and was using and operating the vehicle when she parked it. Furthermore, she was still using and operating the vehicle when she went to the passenger side, opened the door and was either putting mail into the vehicle, sorting it, or taking it out.

35The applicant submits that the parked car was a direct cause for the cyclist not to see her, and thus hitting her and causing injuries. The applicant submits that there was no break in the causal link, and the entire sequence was one incident.

36By contrast, the respondent views the cyclist, as an intervening factor that interrupted the causal link between the applicant’s injuries, and the use and operation of the vehicle. The applicant further states that the applicant has not provided sufficient evidence to establish that her body came into contact with the vehicle. As discussed above, based upon the evidence before the Tribunal, in my view the applicant did come into contact with the vehicle upon being struck by the cyclist.

37In Chisolm, the Court stated that even if the use of an automobile may be said to be a cause of an insured’s injuries, an intervening event can break the chain of direct causation. The respondent submits that this is what happened in this matter.

38The applicant disagrees and submits that there was no intervening act, which was not part of the “ordinary course of things.” She relies upon Economical Mutual Insurance Company v. Caughy, 2015 ONSC 3251, where the insured was playing with his daughter in the dark, and chasing after her when he tripped over a parked motorcycle and struck his parked truck causing serious spinal cord injuries. The court held that there was an unbroken chain of causation and that the parking of the motorcycle, in these circumstance, was not merely ancillary or fortuitous to the injuries, and that there was no intervening or distinct act that was not part of the “ordinary course of things” or not a normal incident of the risk to pedestrians created by the use or operation of the motorcycle parked in that fashion.

39The applicant further relies upon D.S. v. TD Insurance, 2017 (16-000131/AABS), where the applicant was running down a street when he tripped on stones and fell headfirst into a parked vehicle causing injuries. The Tribunal held that the incident was an “accident” under the Schedule, and there was no intervening act or break in the causal link.

40The respondent distinguishes D.S. v. TD Insurance on the basis that there were no injuries suffered by the applicant prior to his body making contact with the vehicle. In contrast, the respondent asserts that in this matter the applicant was first struck by the cyclist in the head before any part of her body may have come into contact with the vehicle. Thus, the cyclist was the dominant cause of her injuries, and these injuries were suffered after she was struck by the cyclist, and would not have occurred but for the intervening acts of the cyclist. The respondent states that the cyclist represented an intervening act that broke the chain of causation.

41The respondent asserts that the facts herein are more analogous to those in Miko and York Fire & Casualty Insurance Company, FSCO A02-000985, September 18, 2003, where the applicant went to retrieve a package from his friend’s van which was parked on the street. He took the package from the van, locked the door, turned and stepped onto the adjoining sidewalk to walk back towards the house when he was struck by a bicycle.

42In Miko, it was accepted that the applicant was engaged in an ordinary and well known activity attached to automobile use when he retrieved the package from the vehicle; however, his proximity to the vehicle and retrieval of the package was coincidental, and not the direct cause of his injuries. When struck he was simply carrying a package on a sidewalk. The arbitrator held that the bicycle striking the applicant was a new and independent intervening force because it did not emanate from, or arise out of, an ordinary use normally attached to an automobile. The incident was found not to be an “accident” as defined in the Schedule.

43The applicant distinguishes Miko by stating that the applicant in Miko, had already stepped away from the vehicle and was walking on the sidewalk when he was struck by the bicycle. In this case, there is no dispute that the applicant was either taking something out of the vehicle or putting something back in (most likely mail), when she was suddenly struck in the head by a cyclist travelling on the sidewalk. I am persuaded by the applicant’s argument in this regard. She was engaging in an activity involving the use of the vehicle, specifically, loading or unloading, and was standing right next to the vehicle while doing so.

44The applicant further distinguishes Miko, and Sarkisian and Co-operators General Insurance Company, FSCO A99-000966, September 14, 2000 (where the applicant was found shot to death beside his car), by stating that these FSCO decisions were rendered prior to the Court of Appeal’s Greenhalgh decision where the dominate feature test was outlined as “was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the ‘ordinary course of things’”? The applicant asserts that cyclists are ordinarily riding on streets and sidewalks, especially in residential areas, and it is an ordinary course for a cyclist to be on the street or sidewalk. The existence of a cyclist is not an intervening act because it is in the ordinary course of things, and often accidents happen with cyclists while individuals are operating their motor vehicles, even if just entering or exiting their vehicle, or using their vehicle to retrieve items. Here there was no intervening act or acts that resulted in injuries that cannot be said to be part of the ‘ordinary course of things.’ I agree, and note that Greenhalgh had not been rendered at the time of Miko or Sarkisian, and so there was no provision for the “ordinary course of things.”

45The respondent points to K.B. and Intact Insurance Company, 16-004096/AABS, where the applicant had driven her children to a birthday party, and had parked her car in the party venue’s parking lot. While walking through the parking lot, the applicant tripped in a pothole a few steps away from her minivan. It was held that the fact that the applicant was in close proximity to the parked car when she fell was not enough to meet the causation test. I note that this case is distinguishable as K.B. had moved away from the vehicle, did not strike the vehicle, and was in fact walking in the parking lot.

46The remaining cases cited by the respondent are similarly distinguishable. The respondent relies upon Fu and Kingsway General Insurance Company, FSCO A04-000602, January 12, 2015, for the premise that a human act or intervention that intentionally causes an injury (assailant’s intervention) to the applicant is outside the risks associated with the “normal incident of the use of operation of an automobile.” I note that there is no evidence before me that indicates that the cyclist intentionally stuck the applicant. In Mahadan and Co-operators General Insurance Company, FSCO A00-000489, February 5, 2001, the applicant parked his car and walked to the trunk of the car to retrieve groceries when he turned away his left foot twisted in a groove cut out of the pavement. The respondent also puts forth Waters and Royal & SunAlliance Insurance Company of Canada, FSCO A00-001143, July 5, 2001, where the applicant suffered a heart attack while driving, and suffered injuries. The arbitrator held that the heart attack was a force that emanated from a ‘new and independent source’ that broke the chain of causation. I do not find any of these cases persuasive given that the facts are so different.

47The evidence before me establishes that the applicant had parked the vehicle, circled around to the passenger side and was facing the vehicle, either taking something out of the vehicle or putting something back in, when she was struck by a cyclist. There is no evidence before me to suggest that this was an intentional act on the part of the cyclist, or put another way, that he saw the applicant and proceeded to purposefully strike her. Instead, I am persuaded by the applicant’s submission that the cyclist did not see the applicant because the vehicle was parked impairing his vision, and that “but for” the vehicle being parked, and the applicant being on the passenger side taking something out or putting it back into the vehicle, her injuries would not have occurred.

48The evidence indicates that the passenger door was open as she was taking something out or putting something back into the vehicle, likely mail. I am persuaded by the applicant’s submission that when the cyclist struck her, she came into contact with the vehicle before falling to the ground. I find that using and operating the vehicle on the passenger side was a direct cause of her injuries. The cyclist is not an intervening act that breaks the causation link. As per Greenhalgh, I am persuaded that there was no intervening act or acts that resulted in injuries that cannot be said to be part of the ordinary course of use or operation of an automobile. Instead, the cyclist’s presence on a residential street is not unpredictable.

49Accordingly, in my view, the applicant is correct in asserting that the entire chain of events form one incident without an intervening act, and that the cyclist is not an intervening act that breaks the chain of causation.

50For the reasons stated above, I find that the applicant has met her burden and established that the incident on September 14, 2016 was an “accident” as defined in section 3(1) of the Schedule.

V. ORDER

I order the following:

51The applicant was in an accident as defined by section 3(1) of the Schedule.

52If the parties are not able to resolve the substantive issues in dispute within 30 days of receiving this decision, the matter will be scheduled for a case conference.