( Disponible en anglais seulement )
There is a new Superior Court decision determining whether a trip-and-fall incident is a “motor vehicle accident” for the purpose of claiming statutory accident benefits.
In Dominion of Canada General Insurance Company v. Prest, the claimant was insured under a standard automobile policy issued by Dominion. He had parked his vehicle in his parking spot at his residence in order to wash it. He exited the vehicle and walked to the end of his car. He then tripped over a concrete curb that “sticks out” from the wall of the parking garage. He stated his right hand was touching the car when he tripped. There was no issue he suffered an impairment as a result of the incident.
As a result of the incident, Prest applied to Dominion for accident benefits. Dominion then sought a determination in Court as to whether the claimant was involved in an “accident” pursuant to section 3 of the SABS. That section defines “accident” as follows:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment …; [emphasis added]
In Chisholm v. Liberty Mutual Group and Greenhalgh v. ING Halifax Insurance Co., the Court of Appeal set forth a two-part test that involves a consideration of the following questions:
(a) Did the incident arise out of the use or operation of an automobile (the “purpose test”); and
(b) Did such use or operation of an automobile directly cause the impairment (the “causation test”).
The judge found that the Prest failed to meet the “purpose” test. He found that the incident or accident did not result from the ordinary and well known activities to which automobiles are put. The judge found that at the time of the incident the vehicle was neither being used nor operated (it was parked). He noted:
A parking spot at one’s residence is typically where a car is put when there is no intent to use it.
The judge also found that the causation test was not met. He found that the car’s use had ended without injury. The trip-and-fall was an intervening act.
What’s interesting about this case is that the insurer took a pro-active approach to get a resolution: The accident happened on April 13, 2012 and only nine months later the Superior Court released a decision on the issue.
In my experience, the issue usually takes much longer to resolve: The insurer denies a claim on the basis that it was not caused by an “accident”. The claimant (who isn’t getting benefits) then applies to FSCO for mediation and when that eventually fails (emphasis on eventually), the claimant applies for arbitration at FSCO. When the insurer loses at FSCO, it becomes exposed to several years of interest.
Kudos to Dominion for getting an answer to this issue so fast. I suspect we will be seeing more insurers take this approach.