In finding that the Applicant in this LAT dispute was entitled to no-fault accident benefits, Adjudicator Samia Makhamra, determined in 16-000131 v. TD Insurance Meloche Monex, 2017 CanLII 43837 (ON LAT) that falling face-first into a parked vehicle was an incident in which the use or operation of an automobile caused an impairment, thus meeting the definition of an “accident” under s. 3(1) o the SABS.
In this case, the applicant, D.S., was inebriated, and running downhill across private property. In fact, he was trespassing. In the course of his trespass, the Applicant tripped over some stone edging blocks, and fell head-first into a car that was parked in the homeowner’s driveway. He suffered catastrophic injuries as a result.
Adjudicator Makhamra drew heavily from the Court of Appeal decision in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226. The Court found in Caughy that parking a motorbike was an ordinary and well-known activity to which vehicles are put, and therefore, when doing so at a camp site where someone may trip on it in the middle of the night, not an aberrant use of same. “The issue is whether the incident resulted from the ordinary well-known activities for a vehicle […] In this case, like in Caughy, the vehicle was parked, and the applicant’s impact with the vehicle as it was parked, is what resulted in the incident” Adjudicator Makhamra reasoned, at paragraph 37.
Accident benefits were to be provided without regard to fault. Therefore neither arguments of lack of forseeability, public policy rewarding trespass nor the suggestion of an intervening act swayed the Adjudicator. She did note, however, that “[…] the analysis and findings in this decision apply strictly to the unique facts of the case. Not every incident with a vehicle that is parked will necessarily be an ‘accident.’”
The Caughy decision certainly emboldened applicants to pursue accident in situations which at first blush, seemed to involve legally parked vehicles innocently effectively “minding their own business”. Caughy has not been overturned, and has won the endorsement of the LAT.
If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222
