Volume. 8 Issue. 30 – August 14, 2024
This week the Tribunal provides additional clarity with respect to incidents involving a “slip and fall” on ice, echoing the court in Davis v. Aviva featured this past June.
Read the full story complete with relevant stats on decisions regarding ‘slip and fall’ on ice as the ‘intervening cause’.
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Reconsideration Varies Decision Regarding “Accident”
Ice Not Intervening – In June, we featured the court’s decision in Davis v. Aviva, In that decision, the court reversed adjudicator Kaur’s decision that Davis had not been involved in an “accident”. Davis was a slip and fall on ice claim, with the adjudicator reasoning that “the ice on the ground was therefore an independent intervening event that broke the chain of events.” The court however found for a fact that “Adjudicator Kaur’s conclusion on the application of the law to the facts was an error of law because she failed to find on the most recent authorities that Ms. Davis was injured during the direct use of her automobile. It is undisputed that she was holding the electronic key fob to open the car door, if she had not already done so, to enter the car and to operate it. This is an ordinary and well-known use to which an automobile is put. The black ice Ms. Davis slipped on was fortuitous, but not an intervening cause or event.”
In 23-003500 v Aviva, the Applicant Singh sought reconsideration of a decision by the same adjudicator for a markedly similar fact situation. The Tribunal ultimately varied this decision, finding that Singh was in fact involved in an “accident”. The reconsideration found that the Tribunal “erred in law; the error was significant to the extent that had the error not been made, the Tribunal would likely have reached a different result, but for the Tribunal’s error in law.” Specifically, the Tribunal found that “a slip and fall in the presence of ice while entering or exiting a vehicle, does not meet the test of an “intervening act” as a break in the chain of causation. Accordingly, the decision adjudicator erred in law in the application of the “intervening act” test.”
Porter v Aviva
The Tribunal found that in the original decision, the adjudicator found the case law cited by the respondent to be persuasive, and specifically gave more weight to the Porter line of case law. However, the Tribunal found that “the adjudicator erred in law in the interpretation of the Porter case. Porter stands for the proposition that the “but for” test cannot be conflated with the direct causation test, and not the proposition that a slip and fall on ice is necessarily an “intervening act”. In addition, the Tribunal further found that “the adjudicator erred in the consideration of the applicant’s submissions in respect to the Madore case. The applicant clearly explained… the importance of the Madore case to jurisprudence and how it applied to the circumstances herein.”
Harland-Bettany v Aviva
The applicant submitted that in Harland-Bettany v Aviva Insurance Company the Tribunal “correctly identified that the Porter case does not stand for the proposition that slip and fall incidents on ice are a bar to direct causation as an “intervening act”, and cautioned to do so could lead to absurd interpretations. I find the Tribunal made an error in law in its initial decision, as ice is a common and well known risk in the act of entering or exiting a vehicle.” Further still, the Tribunal found that the adjudicator “erred in the analysis of the applicant’s submission on Harland-Bettany. The applicant explained the importance of the decision and related it to this case… where it is noted that an “intervening act” cannot arise from a common and well-known risk of an activity, such as entering and exiting a vehicle in the presence of ice.”
Aviva suggested that Harland-Bettany was distinguishable on its facts, as it involved the process of exiting, not entering, the vehicle in question. The Tribunal however found that the adjudicator “erred in fact and in law in its initial decision, as the process of entering a vehicle is a most similar act to exiting a vehicle, with both acts essentially related to each other.”
Accordingly, the Tribunal found that Singh had established grounds for reconsideration under Rule 18.2(b). It ordered “that the decision is varied, to find that the incident on January 13, 2023 constituted an “accident”, as defined in section 3(1) of the Schedule. Therefore pursuant to Rule 18.4, the hearing on the substantive issues would proceed, with the three day video conference restored as per the Case Conference Report and Order dated October 27, 2023.
Interestingly, this decision makes no reference at all to Davis. Of note, a brief search of inHEALTH’s LAT compendium confirms that adjudicator Kaur has had a total of 16 decisions that directly consider “intervening act”, with 15 of the 16 being decided against the Applicant. With respect to decisions considering “definition of accident, the adjudicator’s decisions confirmed that 41/45 of these decisions were against the Applicant.
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