The License Appeal Tribunal has held that a person who tripped over stone blocks and fell into a parked Honda vehicle was involved in an “accident”, making him entitled to receive accident benefit under the Statutory Accident Benefits Schedule.
In D.S. v. TD Insurance, the applicant was running down a street in the early hours of September 28, 2015. He entered onto private property towards a low wall of stone edging blocks, which separated two private properties. As he was running, he tripped over the stone blocks, lost his balance, and fell head first towards a Honda sedan parked on the driveway. As a result of crashing into the parked car, he sustained catastrophic injuries.
DS applied to his insurer for accident benefits. The insurer denied the claim on the basis that DS was not involved in an automobile “accident”, which the policy defines as:
“…an incident in which the use or operation of an automobile directly causes an impairment …”
The LAT Adjudicator disagreed with the insurer and found that the claimant was involved in an “accident”.
One of the issues in the case was whether the claimant actually made contact with the parked vehicle. After considering the expert and other available evidence, the adjudicator found that the injuries occurred as a result of the claimant’s “contact” with the parked vehicle.
What is an “Accident”?
The meaning of the phrase “use or operation” and “(directly) causes” has been discussed at length in many cases across Canada, in all levels of tribunals and courts. It can safely be said that each case must be decided on its own facts, although some overriding principles apply.
In Ontario, the “test” for determining whether someone was involved in an “accident” for the purpose of coverage under the SABS is:
- Did the accident result from the ordinary and well-known activities to which automobiles are put? (purpose test)
- Was the use or operation of the vehicle a cause of the injuries? (causation test)
- 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 injuries? (direct causation test)
The Purpose Test
The adjudicator relied on the Court of Appeal’s decision in Economical Mutual Insurance Co. v. Caughy (2016) to find that parking a vehicle is an ordinary and well known activity to which automobiles are put. Accordingly, the claimant met the “Purpose Test”.
Of note, the adjudicator found in the context of the “Purpose Test” that falling into the car vs. over the car was irrelevant:
Further, does it matter that the applicant in this case collided with a parked vehicle as opposed to tripping over a parked vehicle as in Caughy? I find it does not for the purposes of the purpose test. The Court in Caughy noted that there was no ‘active use component’ to the purpose test. But I examine this in more detail in the causation aspect of the test.
The Causation Test
The adjudicator found that the injuries were caused by contact with the vehicle. The adjudicator found that the impact with the vehicle was not an intervening event that would break the chain of causation, finding that the impact with the car was part of the same chain of events. Further, the adjudicator found that the parked vehicle was a dominant feature of the accident, seeing that the impact with the vehicle caused all the injuries. The adjudicator concluded, “ I find that on a balance of probabilities that his injuries were caused by contact with the vehicle.”
The Court of Appeal decided in Caughy that parking a vehicle is part of the ordinary and well well-known activities to which automobiles are put. Therefore, it was open for the adjudicator to find that the act of parking the Honda met the Purpose Test.
However, and with the greatest of respect, I could not disagree more with the adjudicator’s findings on the Causation Test.
Firstly, the “Causation Test” asks whether “use or operation of the vehicle was a cause of the injuries”. The use or operation of the vehicle must be a cause of the injuries. Not just the vehicle itself.
It appears that the adjudicator in DS found causation because the vehicle itself caused the injuries – not its use. The adjudicator made the following finding:
This part of the causation test is met. As stated earlier, based on the evidence, the injuries could not have been caused by contact with the ground, and given that there is no other explanation before me, I find that on a balance of probabilities that his injuries were caused by contact with the vehicle. [emphasis added]
There was no finding that the parking of the vehicle (its use) was a direct cause of the injuries. There was no evidence that the vehicle was parked in a way that caused the injuries. It was the vehicle itself that caused the injuries (I assume because the vehicle was harder and more solid than DS) and not its use.
Secondly, as noted above the adjudicator found in the context of the Purpose Test that it made no difference whether the claimant feel over or fell into a parked vehicle. However, the distinction is very important under the Causation Test because tripping over a parked vehicle might have something to do with how the vehicle was parked.
For example, in Caughy, the Superior Court found that the use of the motorcycle (i.e., parking it so that it obstructed a path) was a direct cause of the fall. In other words, if whoever parked the motorcycle on the path hadn’t have done so, the fall likely would not have occurred. It was the (negligent) “use” of the parked vehicle that ultimately caused the claimant to trip over it, which caused his injuries.
This finding was not challenged on appeal.
Put another way, in Caughy the “dominant feature” of the incident was that the claimant tripped over a parked motorcycle that was obstructing his path. In DS, my opinion is that the dominant feature of the incident was that the claimant tripped over a stone block and happened to crash into a car. The car was ancillary, at best.
Following Caughy, I opined that the decision dilutes the Purpose Test to some degree. If the Purpose Test is designed only to rule out any aberrant uses of vehicles, one wonders whether there is any real purpose for the Purpose Test, especially if a parked vehicle that is not being used at all is found to be “use”.
Caughy might have been decided differently under the Causation Test if the motorcycle was not parked in a way that obstructed a pedestrian’s path.
But DS takes the cake.
If DS stands, insurers might consider charging much higher premiums if their insureds park their vehicles anywhere other than inside maximum security garages.
See DS v. TD Insurance, 2017 CanLII 43837 (ON LAT)