Special Edition – October 26, 2021

In this “Definition of Accident” Special Edition LAT inFORMER Issue, the Tribunal rules on what meets the definition:

1. Lifting and securing child in car seat, and pressing down on the accelerator an incident acknowledged as not having the conventional “feel of an accident” nonetheless meets the definition.

2. TA rather “bumpy” prison transfer journey also meets the definition. The Tribunal considers in some detail what constitutes a “dominant” feature to meet the definition.

3. Two cases where a fall is, and is not, considered to meet the definition.

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Doesn’t Feel Like an Accident, However…

Doesn’t Feel Like an Accident, However… – In Sterling v Heartland Farm Mutual (20-000672), Sterling, after having lifted and secured her son into his car seat, alleged that she experienced intense neurological pain in her back and a loss of sensation in her right leg and foot, after pressing her foot onto the accelerator. As it turned out, two months later, she underwent back surgery. As a result, she sought accident benefits, suggesting that she had been involved in an “accident” in accordance with the Schedule. The Tribunal, acknowledging that “this matter does not have the conventional ‘feel’ of an accident”, nevertheless agreed that the incident meets both the purpose and causation tests, and thereby meets the definition of an accident.

The Tribunal agreed with Sterling that “there is no active use component to the purpose test”, and that lifting and securing her son in the car seat was “an ordinary and well-known task to which automobiles are put and was the first instance of her pain.” She then got herself into the car, starting same and drove away, resulting in the “second instance of more excruciating pain.” The Tribunal thereby reasoned on these facts that there was “no dispute that this chain of events was uninterrupted.” Further, “there was no ‘intervening’ or ‘distinct’ act that was not part of ‘the ordinary course of things’ and that the pressing of the accelerator was not merely ancillary or fortuitous to her injury.”

Therefore, the Tribunal accepted “on a balance of probabilities that the rather mundane tasks of lifting her 30 pound son into her vehicle, followed by the extension of her foot onto the pedal at just the wrong angle resulted in excruciating pain in her back and leg and, according to the MRI report, reinjury to her L5-S1 paracentral disc…I find no evidence to dispute her assertion that, but for the incident, she would not have suffered her impairment. As a result, I find she meets her causation burden and satisfies both prongs of the accident test.”

*This was upheld on reconsideration – released October 7, 2021

Multiple Standard Prisoner Transfers Deemed “Accidents”

Accidental Prisoner Transport – While the Court in Porter v Aviva, provided some much needed clarity in terms of what constitutes a dominant feature to meet the definition of an “accident” in accordance with the Schedule, the Tribunal continues to wrestle with the concept. In M.N. v Aviva (19-001788), the Tribunal considered two instances in April and October 2016 involving the transport of a prisoner between the Detention Centre and the Correctional Centre/Court. In both instances, M.N. submitted that the events triggered severe back pain and exacerbated his pre-existing injury. The Respondent submitted that the events in question were not “incidents” and therefore cannot qualify as accidents.

The Respondent further submitted that “nothing unusual occurred…the applicant was merely using the seats of the vehicles as they were designed to be used”. M.N. countered however that the discrete event constituting the “incident” was him “being forced to ride in an awkward position. The incident was shaped by a combination of factors including the hard material of the seating, the absence of a safety restraint, the applicant’s pre-existing medical conditions, and his inability to reposition or stabilize himself or move around for relief.”

The Respondent referenced yet another similar incident in March 2016 in which the vehicle hit several potholes, causing M.N. to fly upward, hit his head on the ceiling and strike his lumbar spine on the edge of the metal bench on the way down, that they accepted as an “accident”. The Tribunal however did not find that this differentiated the two events in question. Reference was made to M.N. having described the events during a neuropsychological assessment in 2020, roughly four years after the fact.

Not accepting the Respondent’s contention that the dominant feature was M.N.’s degenerative spine condition, the Tribunal rather found the dominant feature to be the use and operation of the vehicle in question. This was found as “instrumental in exacerbating the applicant’s pain…(and) sufficiently proximate to the resulting impairment to be considered a direct cause of that impairment.”

Does Falling Off/Into Car Meet The ‘Accident’ Definition?

A Fall is Just a Fall – In Madore v Intact (20-000703), the Tribunal considered a matter in which Madore was on the roof of his trailer checking the roof and slide-outs when he fell onto the ground and sustained significant injuries. The Tribunal did accept that the incident met the purpose test as the inspection and cleaning was determined to be part of the ordinary activities to which a trailer would be put. However, the Tribunal agreed with the Respondent that the injuries were the result of Madore having fallen from the roof of the trailer and landing on the ground.

It was determined that the incident did not involve “using or operating an automobile” that directly caused the injuries, for the purposes of satisfying this branch of the causation test. Further, “(t)he mere location on or near a vehicle at the time of an incident does not automatically meet the requirements of the causation test.” There would need to be evidence that the “fall was as a result of tripping on some part of the trailer and the injuries were directly caused by the trailer.” Absent evidence in support of same, “the loss of footing, due to misfortune, is an intervening act and not at all directly caused by the trailer…(and) losing his footing on top of the trailer is not part of the ‘ordinary course of things’.”

Parked Car as “Dominant Feature” – In Montesano v Western Assurance (19-006780), the Tribunal considered an incident in which Montesano, after smoking a cigarette, proceeded up her driveway towards her house, then tripped and struck her face against the rear bumper of the vehicle before falling to the ground. Montesano contended that the fact of the car being parked in the driveway satisfied the purpose test, and but for this fact she would not have struck her face, there was no intervening event breaking the causal link, and the vehicle was the dominant feature of her injuries.

The Respondent submitted that the presence of the vehicle did not satisfy the purpose test, as “she was simply smoking a cigarette near her vehicle and incidentally tripped into it.” Further, Montesano’s “end of journey” was 3.5 hours prior, and there were no plans to use the car that day. There was also no evidence to support the contention that the “use or operation of the vehicle had been uninterrupted”. The Respondent also relied upon a note in the family doctor’s records that she had tripped on a water control pipe. The Respondent relied upon a number of prior decisions, however the Tribunal found all such to be “easily distinguishable because none of the insured’s injuries were caused by striking or even making contact with a vehicle.” In the matter at hand, it was however found difficult to overlook two cases, Caughy and D.S., wherein injuries were actually caused by falling into a parked vehicle, thereby satisfying both the Purpose and Causation tests.

The Tribunal found that Montesano’s journey or potential journey was not relevant when there is a direct collision with a vehicle causing impairments, and further that the cause of the trip and fall was not a relevant consideration “when there is no dispute that the applicant’s impairments were caused by an impact with a parked vehicle.” Therefore, but for the vehicle’s presence, Montesano would not have struck her face on the bumper when she fell. There was “no intervening act or event from an independent source that breaks up the causal link between her trip and fall and her injuries.” In addition, “the rear bumper on which she struck her face was the dominant feature causing her injuries.”

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