Citation: Duah v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-006610/AABS

Released: February 5, 2021

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:

Kwaku Duah

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Paul Gosio

APPEARANCES:

For the Applicant:

Kwaku Duah, Applicant

Piera A Segreto, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD

By way of written submissions

1The applicant was injured on February 27, 2019 when he slipped and fell on ice while attempting to retrieve his car key from his bag.

2The applicant sought benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010¹ (“Schedule”); however, the respondent denied the benefits on the basis that the applicant was not involved in an “accident” as defined by the Schedule.

3The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The parties could not resolve the issues in dispute, so the matter proceeded to a written preliminary issue hearing.

PRELIMINARY ISSUE IN DISPUTE

4Was the February 27, 2019 incident an “accident” as defined by the Schedule.

RESULT

5Based on the evidence before me I find that the February 27, 2019 was an “accident” as defined by the Schedule. As a result, the applicant is not barred from seeking statutory accident benefits.

FACTS

6On February 27, 2019, the applicant was walking towards his car so that he could make his way to work. The weather was bad and there was snow and ice on the ground. When the applicant arrived at his vehicle, he reached out and grabbed the car door handle but realized that his vehicle was locked. The applicant then proceeded to remove his courier/sling bang from his shoulder so he could retrieve his key. As the applicant took his bag off his shoulder, he slipped and fell on the ice. The applicant struck his right knee on the vehicle when he fell. He was unable to get up on his own and was taken to the Humber River Hospital. He was found to have sustained a displaced spiral fracture of his fibula.

THE LAW

7Section 3(1) of the 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”.

8In Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045(“Greenhalgh”), the Court of Appeal for Ontario laid out the framework for determining whether an incident qualifies as an “accident” pursuant to the Schedule. The test involves the consideration of the following two questions:

I. Did the incident arise out of the use or operation of an automobile?

II. Did such use or operation of an automobile directly cause the impairment?²

9The second question concerns direct causation. What will amount to direct causation will depend on the circumstances of the case; however, some of the following considerations may provide useful guidance in ascertaining whether direct causation has been established in a given case:

I. the "but for" test can act as a useful screen;

II. in some cases, the presence of intervening causes 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; and

III. in other cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called "direct".³

10The applicant submits that the incident meets the requirements of both the purpose and causation test. The respondent concedes that an attempt to open a vehicle falls within the ordinary use and operation of a motor vehicle thereby satisfying the requirements of the purpose test; however, it takes the position that the incident fails to satisfy the requirements of the causation test.

ANALYSIS

The Causation Test – Position of the Parties

11The applicant submits that the incident meets the causation test. In short, his position is as follows:

I. the incident satisfied the “but for” test because he would not have been injured “but for” attempting to get into his vehicle;

II. there was no intervening cause breaking the chain of events between opening his vehicle and the injuries he suffered; and

III. the dominant feature was his attempt to enter his vehicle.

12The applicant relied on several cases in support of its position.

13Applying the principles in Greenhalgh, the respondent submits the following. First, the respondent submits that the applicant’s use or operation of the automobile did not directly cause his impairments. Instead, the respondent argues that but for the patch of ice, the applicant would have removed his messenger bag, retrieved his keys and successfully completed the opening the door of the automobile. Without the ice patch, no incident occurs and therefore no impairments occur. Therefore, the respondent submits that the applicant’s impairments arose from a meteorological phenomenon rather than the direct use or operation of his motor vehicle.

14Second, the respondent submits that an intervening act occurred when the applicant began to remove his bag in order to retrieve his keys, thereby breaking the chain of causation.

15Third, the respondent submits that the dominant feature of the accident was a slip and fall on ice, with the bag removal process being a number of steps removed from the actual use or operation of a motor vehicle.

16Given this, the respondent submits that the incident does not meet the requirements of the causation test as laid out in Greenhalgh and therefore, the incident of February 27, 2019 is not an “accident” as defined by the Schedule

Analysis

17For the reasons provided below, I am satisfied that the use and operation of the vehicle was a direct cause of the applicant’s injuries. I find that the incident was an “accident” within the meaning of the Schedule, and the applicant is entitled to claim benefits under the Schedule.

18First, I find that the applicant would not have been injured “but for” being in the process of entering his vehicle. The applicant was not simply walking outside aimlessly; he was walking towards his vehicle for the sole purpose of getting into it so that he could make his way to work when he slipped and fell. My analysis of the intervening act and the dominant feature principles leads me to the same result.

19Second, I find that the incident consisted of one continuous chain of events with no intervening act to break the chain of causation as the applicant was in a continuous process of getting into the vehicle.

20I have considered whether the slip and fall was an intervening act that would disqualify the incident from being an “accident”. In other words, was the slip and fall a separate event with no connection to the operation of the vehicle? I find that it was not a separate event. Again, the applicant was not simply walking outside aimlessly; he was walking towards his vehicle for the sole purpose of getting into it when he slipped and fell.

21Factually, the applicant did slip on ice when he fell. However, in my view, there were two direct causes of the accident, the snow/ice-covered condition of the walkway, and the fact that the vehicle was parked in a location where snow and ice covered the ground. It was reasonably foreseeable that, if the applicant had to walk towards his vehicle to enter it, he might slip and fall and be injured. On the specific facts of this case, slipping and falling on ice formed part of the normal risk created by the use or operation of the vehicle. In other words, I am satisfied that one direct cause of the accident was a result of the use and operation of the vehicle that was parked in and around icy conditions.

22Furthermore, the facts of this case clearly indicate that the applicant had clearly moved from the act of walking towards his vehicle to the act of getting into the vehicle. This is evident from the fact that the applicant had reached out and grabbed the car door handle of his vehicle. When he realized that his vehicle was locked, he proceeded to remove his courier/sling bag from his shoulder so he could retrieve his key. This is when he slipped on the ice.

23As a result, I find that the dominant feature of the incident is the applicant’s attempt to get into his vehicle. While there is no dispute that the slip and fall caused the injuries, this was secondary to the fact that the applicant was getting into the vehicle, the very act that initiated the incident.

24In support of its position, the respondent relies on the case of R. M. v. Certas, 2019 CanLII 94132 (ONLAT) (“R.M.”). The facts of R.M. are laid out at paragraph 6 of the Tribunal’s decision:

On February 14, 2017, as the applicant walked towards her parked car, she unlocked it using her key fob. She placed her hand on the car door handle and, at that point, slipped on ice and fell beside the driver’s side door, tearing a tendon in her left shoulder.

25The adjudicator ultimately held that the applicant had satisfied the purpose test but not the requirements of the causation test. In doing so, the adjudicator noted the following at paragraph 30 of the decision:

“I find that in this case the ice in the parking lot was an intervening cause, and not a foreseeable risk of motoring, that broke the chain of causation. It was ice in the parking lot, and not the use or operation of her car, that was the direct cause of her injuries.”

26At paragraph 33 of the decision, the adjudicator noted:

“I find that the direct cause and the dominant feature of the applicant’s fall and her injuries was the icy condition of the parking lot and not the use or operation of a car.”

27R.M. was upheld on reconsideration as the adjudicator found no errors of fact or law. Respectfully, I have come to a different conclusion than this adjudicator. The case law in this area is admittedly superficially confusing with similar fact situations leading to opposite conclusions. These decisions, however, must be decided by applying the law to the specific facts of the case. Applying the law to the specific facts in this case have led me to conclude that the applicant’s use and operation of the vehicle was a direct cause and the dominant feature of the applicant’s injuries. Again, I also find that the ice was not an intervening cause but foreseeable risk of motoring that did not break the chain of causation. As a result, this was an “accident” as defined by the Schedule.

CONCLUSION

28For the reasons outlined above, I find that the incident that occurred on February 27, 2019 is an “accident” as defined by the Schedule. As a result, the applicant is not barred from seeking statutory accident benefits.