V1402 – Recognizing “Accidents” for the Sake of Accident Benefits Claims
The Statutory Accident Benefits Schedule defines an “accident” as being an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. Typically, when we think of accidents, we think of two or more vehicles colliding with one another or single vehicle mishaps such as may occur when drivers encounter black ice or other hazards.
The reality though is that accidents can occur in many ways. While they usually involve passenger cars and trucks, they can also involve employment, construction, and commercial vehicles, snowmobiles, ATV’s, dirt bikes, scooters, tractors, buses, and more. Interestingly, accidents can also be confirmed in quite unusual and extraordinary circumstances such as incidents involving road rage, thefts, carjackings, carsurfing, and other seemingly intentional, mischievous or criminal acts.
When a person is hurt due to any incident that has even a remote connection with a motorized vehicle, it is important to consider that there may be possibility of accident benefits coverage. Such coverage can be generous and life changing afforded to an injured party.
The case of P.H. and Aviva Insurance Company of Canada (Tribunal File No. 18-010205/AABS) recently considered an incident that involved an out of control vehicle striking a residence. When the vehicle struck the home, the force of the impact caused the back patio to detach from the home. At the time of the collision, P.H. was in her home; she heard and felt the impact but was not immediately aware that the impact was caused by a motor vehicle collision. As P.H. stepped through her back door, intent on investigating the impact, she fell through the newly created gap between the patio and the house and she suffered injury.
P.H. brought a claim to her auto insurer for accident benefits. Aviva Insurance Company refused her claim on the basis that the incident was not an “accident” as defined in the Schedule.
In considering whether P.H.’s injuries were suffered as a result of an accident, Adjudicator Rupinder Hans considered the definition of an accident and analyzed the relevant two-part test as established by way of the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, (1995) 3 S.C.R. 405 and as later narrowed by
Greenhalgh v. ING Halifax Co., (2004) O.J. No. 3485 (ON CA). This test is as follows:
The purpose test:
• Did the accident result from the ordinary and well-known activities to which automobiles are put?
The causation test:
• Was the use or operation of the vehicle a cause of the injuries?
• If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries.
In his decision, Adjudicator Hans confirmed, on the balance of probability, that P.H. had met both the purpose and the causation test. With this, the incident was confirmed to have been an accident and accident benefit coverage was thus made available to her.
In his analysis, and with respect to the purpose test, Adjudicator Hans stated as follows:
“The applicant asserts, and I agree, that the motorist operating the Durango was in the process of operating a motor vehicle. Perhaps he was operating the motor vehicle in a negligent manner but, nonetheless, he was operating a motor vehicle. Operating a motor vehicle is an ordinary and well-known activity to which automobiles are put. I find that the applicant has met her burden and satisfied the purpose test.”
With respect to the causation test, Adjudicator Hans stated:
“…the evidence before the Tribunal establishes that the automobile was a direct cause of the applicant’s injuries and there was no intervening act. I note that the space between the applicant’s back patio and her house, through which she fell, existed as a direct result of the vehicle colliding with the back patio of her residence. Further, there is no requirement that the injury occur while the insured has physical contact with the vehicle or that it can only occur while the vehicle is in active use. I find that her injuries were a 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. I agree with the applicant that this was an unbroken chain of events involving the use or operation of an automobile leading to an injury. I find there is no break in the link of causation.”
Decisions that relate to the definition of an accident are often quite interesting in their facts and detailed in analysis. This particular decision is a good read and includes references to several other past cases. It’s informative and fair and reminds us to remain open-minded and aware of the potential for claims for accident benefits.
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