Volume. 5 Issue. 34- July 28, 2021
In this week’s edition, an all ‘accident definition’ issue, the LAT rules on two cases involving falling off and falling into a car respectively. The misfortune of falling is considered in the context of the purpose and causation test. One meets the test and one does not. What distinguishes these two cases?
In the last case, the purpose test is the main consideration, as the vehicle involved, which was being loaded onto a trailer, had ceased being a “motor vehicle”.
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In Trending – Does Falling Off/Into Car or Loading Inoperable Vehicle 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.”
Vehicle Ceased Being a Motor Vehicle – Finally, in Northbridge v Robinson (19-009743), the Tribunal considered a matter wherein Robinson was rendered a paraplegic as a result of an incident involving he and two friends attempting to load a vehicle onto a trailer, in order to move it to a location to be repaired. The insurer submitted that it had been paying benefits as a “goodwill gesture”, as it was their belief that the injuries sustained were not as the result of an “accident”, as defined under the Schedule.
Robinson argued that the insurer was “only interested in having a determination as to whether or not the vehicle it insured was in an accident…this is too narrow and the Order is too narrowly worded”, as there were other vehicles involved for which a priority dispute was in progress. Therefore, “(t)he fact that the vehicle was inoperable doesn’t really matter.” In Robinson’s view, the question to be determined is “did an accident take place?” Notwithstanding, the Tribunal found that the preliminary issue “is a threshold issue to the dispute between the two parties to this application and is properly before me for determination.”
The insurer contended that the incident met neither the purpose nor causation test, as the vehicle they insured (the one being lifted) was not roadworthy, had not been for some time prior, and the injuries were sustained as said vehicle was being loaded onto a trailer. Robinson countered that the trailer was a vehicle, attached to an operable truck. The injuries would not have occurred “but for the use of the trailer attached to the Dodge truck and [Robinson]’s injuries are a direct result of the use of the vehicle.” The Tribunal confirmed that the “but for” test does not establish legal causation, rather “serves to “screen out factors that made no difference to the outcome.” Further, this would not be relevant in cases such as this, where the “purpose test” was not met.
The Tribunal found that “the moving of a vehicle incapable of motoring does not constitute in my view the ordinary use or operation of the vehicle…the vehicle had ceased to be a motor vehicle that could be motored in and became an object that used to be a motor vehicle.” In order to satisfy the definition of “accident”, the use or operation of the vehicle must be a direct cause, and “(m)anually moving the vehicle with human power assisted by tools is not equivalent to operating the vehicle but instead is the opposite of operating it… Taken in totality, the weight of the [insurer]’s evidence is clear that [Robinson]’s injuries did not arise out of the ordinary use or operation of the vehicle and I so find.”
Related LAT inFORMER issues:
No AB Entitlement for Vehicle Not Used for Motoring Purpose
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