Volume. 4 Issue. 26 – July 8, 2020
In this week’s LAT inFORMER, the interpretation of the definition of ‘accident’ was put to the test in 3 unusual circumstances with the 4th case discussed dealing with a staged accident.
While you will find the definition of ‘Accident’ in the SABS as “an incident in which the use or operation of an automobile directly causes an impairment…”, interpretation of said definition has been established by case law.
Follow the 3 cases where the Respondent challenges the definition of ‘accident’ and see how the LAT has applied the established case law to the definition to conclude whether or not there has been an accident.
Relevant considerations in defining an ‘accident’ include:
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- Purpose test – Did the incident arise out of the use or operation of an automobile?
- Causation test – Did the use or operation of a motor vehicle directly cause the impairment?
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- But for: whether the injures would have occurred “but for” the use or operation of the vehicle
- Intervening act: whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the vehicle
- Dominant feature: whether the use or operation of the vehicle was the dominant feature of the injuries
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A Newly Detached Home Creates ‘Accident’
A Newly Detached Home – In 18-010205 v Aviva, the Applicant was injured while stepping out to her back patio to investigate the cause of a collision she had just heard and felt. As a result of the collision, the Applicant’s patio had become detached from the house, and when she stepped out, she fell through the space created between the house and patio. The Respondent argued that steering a runaway vehicle into a back patio was not an ordinary and well-known use of an automobile. However, the Tribunal noted that this defined the purpose test too narrowly, as the operator was nonetheless operating the vehicle, although they may have been doing so negligently.
The Respondent further argued this to have been a subsequent “slip and fall”. However, on the evidence, this was not the case, as she rather fell through the space between the house and patio. Accordingly, the injuries sustained were the “direct result of the use of a motor vehicle which impacted her residence’s back patio, leading her to hear a loud noise and feel her house shake, leading her to investigate and fall.” The vehicle in this instance caused an unbroken chain of events, with injuries sustained as a direct result of the vehicle hitting the house and detaching the patio.
The discussion of relevant case law in this decision clearly points to the Applicant having experienced the initial collision itself appearing as central to the finding of the Tribunal. Ultimately, the Tribunal found the matter at hand analogous to a FSCO decision where the claimant fell down the stairs after hearing a loud noise that apparently resulted from a motorist crashing into his garage. One suspects that had the Applicant been unaware of the collision, and fallen some time afterwards, that the Tribunal would have decided the incident was not an ‘accident’.
Parking Space Maintenance Required – In 18-011003 v Intact, the Applicant had reversed her vehicle out of her assigned residential parking spot in order to shovel the spot, which was required by the apartment complex. The Tribunal confirmed that such requirements “cannot be used to expand the scope of the well-known activities to which automobiles are put.”
The Tribunal found that once the vehicle had been removed from the parking spot, and the ignition turned off, “she was not operating her vehicle or doing any activity directly related to the operation of her vehicle.” Further, “shoveling an empty parking spot is not part of the ordinary and well-known activities which automobiles are put.” Slipping and falling on ice was found to be an intervening act, as at the time, “the applicant was not maintaining her vehicle, she was maintaining her parking spot.”
Aberrant Use of Vehicle – In 19-000791 v Aviva, the Tribunal considered the case of an individual who, while in a stopped vehicle he had driven off the road, intentionally set fire to the vehicle and ultimately died from smoke inhalation. The Applicant, the driver’s wife, sought death and funeral benefits, arguing that the driver “died as a result of operating his vehicle by simply being in the confines of his vehicle with the windows shut, causing the smoke to remain within the vehicle, and him dying as a result of smoke inhalation.” The Tribunal however found, “Simply being in the vehicle and refusing to leave when smoke occurs from a fire one has set does not constitute operation of the vehicle.”
Further, this was found as “an aberrant use of the vehicle. [The driver] was putting the vehicle to a use that departed “from the ordinary and well-known activities to which automobiles are put.” The setting of the fire was confirmed as an intervening act, with the dominant feature of the death being “the introduction of combustible materials into the vehicle and their subsequent ignition”.
Not Even in the Vicinity – In 19-001049 v The Personal, the Respondent was found entitled to repayment from the Applicant in the amount of $8,884.29, as he was found to have willfully misrepresented the facts of a purported ‘accident’. The Tribunal found that in fact the Applicant was not in the vehicle when the accident occurred. A negative inference was drawn by his failure to call as witnesses two other individuals alleged to have been involved in the ‘accident’. This was found to raise “suspicion that they did not testify because their testimony would not be credible.”
The Tribunal found “extra perplexing” the fact that following the ‘accident’ the two vehicles alleged to have been involved were first towed to a body shop, each though arriving from different addresses. Phone records further established that the Applicant was not in the vicinity of the accident location on the day in question. “In my view, the applicant picked the wrong day to be busy making phone calls as these records completely discredit that he was in the vehicle at all on the date the accident allegedly occurred.” Ultimately, the Tribunal found that “the accident fits the profile of a staged accident and the circumstantial evidence more than just coincidental.”
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