Volume. 5 Issue. 15 – April 7, 2021
This week we examine two instances wherein the Applicant was in the process of either entering or exiting their vehicle when they slipped and fell due to icy conditions. In both cases the Tribunal exhibits a decidedly different take from what appeared at least to be relatively settled precedent within the Tribunal, finding neither met the definition of “accident”.
Are we now perhaps witnessing the “slippery slope” of vehicle related slip and falls? Just when you thought that you understood what an “accident” looked like…Or are we simply facing further examples of inconsistencies exhibited by the Tribunal, frustrating one’s capacity to understand a most fundamental matter.
Read our latest Blog on The 86% Solution – Year 5 LAT Stats
Definition of Accident ‘Slippery Slope’ Inconsistencies
The two-part frame work for determining definition of ‘accident’:
- Did the incident arise out of the use or operation of an automobile? (“Purpose” test)
a) Whether the incident involves “the ordinary and well-known activities to which automobiles are put”
- Did this incident directly cause the impairment? (“Causation” test)
a) The “but for” consideration screens out trivial acts and events that could not be a possible cause of the impairments;
b) The “intervening act” consideration asks the adjudicator to determine if some other event took place that can better explain the cause of the impairments; and,
c) Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity at issue is what “most directly caused the injury”.
In the cases that follow, both Applicants were found to have met the “purpose” test. However, the Tribunal found that the “causation” test was not met, leaving one to question what appeared as established precedent by the Tribunal in such matters.
Follow the Bouncing Ball – In Khamis v Unifund (19-013760), Khamis was in the process of exiting his vehicle when he slipped and fell. The Tribunal found for a fact that the slip and fall on ice was actually an intervening act, thereby breaking the chain of causation between the use of the vehicle in question and the resultant fall.
While noting there to have been “numerous” decisions referenced by both parties, the Tribunal in this matter placed emphasis on R.M. v Certas (18-000468), which itself would appear something of an outlier. This decision by a former part-time member, who upheld her own decision upon reconsideration, held that the ice in the parking lot was an intervening cause, with the act of falling on ice seen as a “foreseeable risk of falling, not a foreseeable risk of motoring”.
In Khamis, the Tribunal found, “Simply because a person is in the midst of exiting their vehicle when an incident occurs that causes injuries does not in and of itself make the incident an ‘accident’…” Khamis relied upon Pinarreta v Ing Insurance and Mariano v TTC Insurance, where the Applicant had fallen while disembarking a bus. In these cases, the resultant fall was said to relate to a snowbank at the exit and an illegally parked car respectively, which were found to have been “external conditions rather than an intervening act… within the realm of risks associated with motoring…”
The Tribunal agreed with the Respondent that G.R. v Economical (18-010779) relied upon by Khamis was distinguishable as the Applicant had in that matter fallen whilst in the process of clearing snow from the vehicle. As the act of clearing snow from a vehicle is itself considered “a part of the normal use of the vehicle”, there was no break in the chain of causation.
Dominant Conflation – In Edmonds v Coseco (20-006226), Edmonds was injured in a slip and fall, this time whilst in the process of entering the vehicle. As was the case in the Khamis decision, the Respondent argued that the ice surrounding the vehicle was an intervening act. However, the Tribunal disagreed with such an interpretation, finding that “there is no ‘intervening act’ at play… if this logic was applied to other circumstances, could it not be said that a driver spinning out of control on an icy highway was not involved in an ‘accident’?” It could therefore be inferred that this adjudicator may well have come to a different conclusion than that reached in the previous case.
The Tribunal in this matter found that the “dominant feature” consideration is “the most appropriate tool”, and that the “dominant feature” of this incident is Edmonds slipping on the ice. The presence of her vehicle was found to be “ancillary to the events that led to her injuries.” As a result, the incident did not meet the definition of “accident”. It was noted that “this conclusion is at odds with the cases presented by the applicant, notably C.K.D. and K.P. …and I have reached a different conclusion than my colleagues.”
Dealing first with K.P. v Aviva (19-004361), the Tribunal had found that K.P. injured while walking down an icy driveway towards a waiting Lyft ride sustained injuries caused by the resultant fall. However, this was found “ancillary to the fact that the Lyft driver stopped the car less than half-way up the driveway requiring the applicant to walk down the driveway in order to enter the vehicle. I find a dominant feature of the accident to be the distance the applicant was required to travel in order to get into the car.” The Tribunal in this matter however indicated that “this conclusion conflates the determinations underlying the ‘but for’ and ‘dominant feature’ considerations.” In fact, the icy conditions were the most direct cause of Edmonds’ injuries.
Turning next to C.K.D. v Wawanesa (18-006988), “beyond the significant weight the adjudicator placed on this applicant’s use of a FOB…I again differ from my colleague over the use of the ‘dominant feature’ consideration.” In C.K.D., the Tribunal held that “While there is no dispute that the slip and fall caused the injuries, this was secondary to the fact that the applicant was getting into the vehicle, the very act that initiated the incident.” Once again, the Tribunal in the present matter indicated that “the adjudicator appears to have conflated the ‘but for’ and ‘dominant feature’ considerations to find that the reason an applicant is present in a set of circumstances must, in turn, be the ‘dominant feature’ of that incident.”
Concluding, “I do not agree that the impetus for why an applicant is present in a certain situation must, necessarily, mean that this impetus is the direct cause for the injuries. Instead, I find that the slip and fall on the icy ground at issue was the direct cause of the applicant’s injuries, and so it is best understood as the ‘dominant feature’ of the incident over the ancillary use of her vehicle.”
Related LAT inFORMER issues:
Exiting a Vehicle Not “Ordinary”?
Not by “Accident” – Ice and Fall as Intervening Causes?
Snow Day
Ice Not Intervening
FOB Is the Key
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