In a new decision (FSCO 4908) from ADR, Arbitrator Tanja Wacyk takes another swing at purpose + causation = accident. She summarizes the evidence of Ms. Bus thusly:
Ms. Bus testified she fell while exiting her Lincoln Navigator sports utility vehicle, which she had parked in the lot adjacent to a TD Bank, with the intent of conducting some banking. She testified she exited the vehicle “very carefully”, hanging on to both the door and frame of the vehicle. She put one foot on the step of the vehicle, and attempted to step down with her other foot. However, her other foot slipped on black ice, causing her entire body to slide out of the vehicle. Ms. Bus testified that as a result, she fell on her back and hit her head on the step of her vehicle.
She reported the incident to a doctor at a walk in clinic the next day. His notes indicated:
fell on the ice, last night, pain in the left hip, …in pain chest clear, hip pain on extension, abdo [sic] soft no mass, chest clear, pain on the lumbar are and the thoracis spine[sic].
Three weeks later, she saw her family doctor His notes indicate she:
fell down after slipping on black ice 3 weeks ago (on Feb 15th); had a lot of pain in her neck, Lt [sic] shoulder and left hip area.
Four months later, he filled out an OCF-3 indicating Ms. Bus drove to the TD Bank to do some banking, and parked her vehicle in the Plaza parking lot. She then opened her driver’s side door and put a foot outside. Once she placed her other foot, she slipped on ice and fell to the ground. It should be noted that her family doctor’s clinical notes and records indicate an aggressive and litigious attitude by Ms. Bus.
Arbitrator Wacyk starts her analysis by pointing out that the applicant bears the burden of proving her injuries were the result of an accident. She then immediately launches into an assessment of Ms. Bus’ credibility. She found Ms. Bus’ explanation of how her injuries happened to not be credible:
Rather, as detailed in the medical documentation created closest in time to her fall, and prior to her filing her Application for Accident Benefits, I find Ms. Bus successfully and safely exited the vehicle, and subsequently slipped on ice and fell as she walked toward the TD Bank.
I further find the ice upon which Ms. Bus slipped to be an intervening factor, completely independent from her use or operation of her motor vehicle. While I accept Ms. Bus’ vehicle took her to the approximate location of her injury, the cause of the fall was a new and independent source – the ice on the pavement.
Having found she was not exiting her vehicle, Arbitrator Wacyk found Webb v. Lombard (FSCO 3680) to be the closest case, and dismissed her claim. In Webb:
Ms. Webb sat in the front passenger seat of the cab driven by Ms. LeBlanc. The cab pulled in under the canopy that extends out from the main entrance to the hotel. The orientation of the cab was such that Ms. Webb would have to walk around the cab, either in front of it or behind it, to reach the hotel. Ms. Webb testified that she paid her fare as she was getting out of the cab, then left with her belongings, intending to walk around the front of the cab into a side entrance. However, on checking her pocket, she realized she did not have her hotel pass-card, and therefore would have to go around the back of the cab to enter through the main entrance.
As she reached the rear of the cab and turned towards the hotel, Ms. Webb noticed “many big patches of ice.” The arbitrator accepted that the icy patches were “sufficient in size and number to impede her path to the curb.”
Ms. Webb then proceeded to walk behind and perpendicular to the back of the cab. When Ms. Webb reached a point closer to the driver’s side than the passenger’s side of the cab, one of her feet slipped on the ice at the rear of the cab and she began to fall. She tried to reach for the bumper with her right hand. Her fingertips touched the bumper, but she was unable to break her fall and she fell on both knees. She also scraped her left hand on the ground. At the point Ms. Webb fell, she was close enough to the rear of the cab to reach out and touch it and, according to the agreed facts, she was between 3 feet and 10 feet of the curb to the main lobby entrance.
Director’s Deligate Makepeace found this not to be an accident. But is Webb still good law? In Webb (Appeal P06-00038) Director’s Delegate Makepeace found:
…the scope of accident benefits coverage is determined under s. 2(1) of the SABS, which defines “accident” without reference to occupancy status. For example, coverage does not extend to a cab driver who was assaulted by a fare, though both were occupants of the automobile at the time of the assault. Conversely, a pedestrian who is struck by an automobile can claim accident benefits because she was injured in an “accident,” though she was not an occupant of any automobile.
There is a great deal of authority for the proposition that “use or operation” of an automobile extends beyond driving to include, amongst other things, getting into and out of a vehicle, and, for example, repairing and maintaining and loading and unloading a vehicle. However, there was no dispute in this case that “use or operation” of the cab extended from the time Ms. Webb got into the car to the time she stepped out of it and closed the door behind her.
… the prevailing consensus is that use or operation generally ends when the claimant leaves the vehicle without incident and walks away. However, a different conclusion may be reached where use or operation of the vehicle created or added to the risk that befell the claimant…
It is this last idea that Arbitrator Wacyk finds most persuasive, that the easy way to tell when the use or operation of a motor vehicle ends is when the vehicle ceases to create or add to the risk. It takes away all the discussion of end of journey or interrupted journey cases. It makes light work of causation.
However, in a strange twist, Director’s Delegate Makepeace goes on to say:
There is no suggestion that the position of [a motor vehicle] created an emergency or any special risk beyond the ordinary risk faced by anyone who leaves a vehicle in a parking lot and walks towards the entrance of a hotel or a store, and I do not accept that the need to walk around a parked or stationary vehicle is enough, without more, to shift the nature of the risk from occupier’s liability to automobile accident benefits.
We should not leave the discussion of Delegate Makepeace’s views before noting that she was the same delegate who upheld the decision of the arbitrator in Seale v Belair (FSCO 3061) in which Ms. Seale fell on ice walking down a hill to get back to her car, after a Good Samaritan had helped extricate it from a snow bank that Ms. Seale got stuck in. In that case, it was posited that but for Ms. Seale’s car getting stuck, she would never have been outside of the car walking down the hill in inappropriate footwear, and would not have fallen. Thus, it was an accident under the SABS. Other cases have followed, created a line of interrupted journey exceptions to the use or operation of the vehicle.
Seale was in 2003 and Webb was in 2007, ages ago in the development of accident benefits case law. Now we know that tripping over a parked vehicle in a campground is, in fact, an accident. The Court of Appeal just told us so in Economical Mutual v Caughy.
Where does this leave us? The short answer is, who knows? The long answer is unfortunately much longer. Credibility will be a critical issue, as it was here for Ms. Bus. Having said that, it would appear that journeys do end at some point, and in Ms. Bus’s case before she tripped. Tripping over a vehicle seems much more likely to gain coverage than tripping after one exits a vehicle. Suffice to say, these cases will continue to be litigated where the results from decision makers are so divergent.
If you have any questions about this blog or a similar file, please contact Eric Grossman at 416.777.5222.
