FSCO Director’s Delegate Lawrence Blackman has restored some sanity to the ongoing saga of whether a “slip and fall” incident is an “auto accident”.
In Webb v. Wawanesa, Arbitrator Joyce Miller held that the claimant who slipped on some ice several steps away from her vehicle was involved in an “accident” for the purpose of claiming accident benefits. For clarity, the SABS 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; [emphasis added]
Webb testified that on the date of loss she was going to visit a friend. There was no snow or ice on the road. However, there was a snowbank, two feet in height and over a foot wide going from the road to the curb that ran the length of the north side of the street. The only way to get onto the sidewalk was through access points that had been shovelled out. To the best of her knowledge the city clears these access points. There was no other way to access the sidewalk than through these access points.
She testified that she was able to park her car directly in front of an access point, in front of another vehicle. She stated that she exited her car on the driver's side, locked the door and walked around the car to the front. She stated that she has a compact car and it took her, a few seconds, two or three steps to get to the access point. When she put her foot onto the access point, she slipped on ice and fell backwards. As a result of this fall, Ms. Webb broke four bones in her right foot.
The arbitrator found that the claimant met the requisite “purpose” and “causation” tests for establishing that she was in an “accident”:
I find that when Ms. Webb was compelled to park at the access point it created a risk that set in motion an unbroken chain of events which resulted in her tripping on the roadway at the access point. Although the tripping on the roadway at the access point caused Mrs. Webb's injuries, I find as a fact that this was "ancillary" to her being compelled to disembark at the access point. I find that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation. Accordingly, I find that the use of a motor vehicle caused an uninterrupted chain of events ending in Ms. Webb's injuries.
On appeal, the Director’s Delegate refused to intervene with the arbitrator’s finding on the “purpose” test, but held that she was wrong on the causation test:
In this case, the Respondent had parked her vehicle, physically exited it, closed the car door, locked it, put her keys in her purse, walked up the side of the car, crossed in front of the car without incident and had proceeded to an access point a foot ahead of the front bumper of the car, when she fell.
The Respondent was not in the process of actually alighting from the vehicle when the incident took place. The Respondent was not intending to momentarily return to her vehicle. No automobile contributed physically to her injuries. There was a temporal distance between the physical exiting of the car and the injuries. The Respondent's car was not blocking the access point. The vehicle was not an obstacle. At no time during the incident did the Respondent touch her car.
Applying the Arbitrator's prior reasoning in Mahadan, there was a "new and independent source" of the Respondent's injuries other than her car, namely, ice and snow at a pedestrian access point resulting from the weather conditions that, in the circumstances of this specific case, broke the chain of causation. Prudently, the Respondent has commenced a law suit against the municipality and the maintenance contractor.
Insurers still need to remember that these issues are fact driven, meaning some "slip and falls" might still be considered to be "accidents" under the SABS.
The case is available on the FSCO Web site.