In the recent LAT decision of S.B. and Aviva, a woman who sustained injuries after retrieving her purse from her car, closing the door, and then falling to ground did NOT meet the definition of “accident” as defined in the SABS. Instead the applicant’s fall in this case was considered to be an “intervening act”, which in turn was the “direct” cause of her injuries and not the use or operation of her automobile.
On November 28, 2017 the applicant arrived at a gas station, put gas in her car, went to retrieve her purse from the front passenger seat of her car in order to pay. She closed the door, turned to walk away, and fell to the ground sustaining injuries. Her body did not come into contact with the car. In determining whether an accident had occurred for the purposes of the SABS, Adjudicator Fricot implemented the well-established two-part “Purpose” and “Causation” test from the Ontario Court of Appeal decision in Greenhalgh v. ING Halifax Insurance Co.
Purpose Test
The applicant relied on the Davis case which held that routine maintenance (checking and topping up fluid levels, checking tire pressure, filling the gas tank) satisfies the purpose test. She further relied on Caughy for the proposition that there was no requirement that the vehicle be in active use to satisfy the purpose test.
Adjudicator Fricot found that Davis was distinguishable because the applicant in that case was injured when the hood of the car collapsed on her while she was refilling her windshield washer fluid, unlike in the case at bar where the applicant had completed refueling and was walking away at the time she was injured. Further, Adjudicator Fricot found Caughy was distinguishable because in the case at bar the applicant had no contact with any parked vehicle when she fell, nor had contact with a parked vehicle caused her to fall.
The Adjudicator agreed with the Insurer that the purpose test was not met because the applicant’s use of the vehicle had ended prior to the fall when she retrieved her purse, closed her car door and walked away.
Causation Test
Of note, neither party made submissions on the applicability of the “but for” test but instead focused on the intervening causes analysis and the dominant feature test. In her intervening cause analysis, Adjudicator Fricot referred to a number of cases where a person had fallen outside a parked car, including Banos, where the arbitrator had concluded that “a common sense view of the facts in this case militates against a parked car that has already been refuelled as constituting a “use” in terms of the two-fold test” and held that the slip and fall on ice was the sole cause of injury, not the use and operation of the vehicle. With respect to the dominant feature test, Adjudicator Fricot found that although the applicant’s fall was very close to her car, she did not come in contact with her car when she fell, nor did the car cause her to fall. Accordingly, the use of her car was neither a dominant feature in her fall nor did her car or the use or operation of that car cause her to fall.
Having not met the purpose and causation test, the application be dismissed.
A copy of the decision in S.B. and Aviva can be found here.
