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What is an Accident? If it looks like a duck...

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Article Summary

In Carr and TD, Director Delegate Feldman covers the field of what constitutes an accident.

Carr and TD  is a recent FSCO Appeal decision of Director Delegate Richard Feldman which focuses on the definition of a motor vehicle accident.  This case also includes a detailed analysis of the “purpose test”; whether an incident resulted from an ordinary and well-known use to which the motor vehicle is put.  The test for what constitutes an automobile accident is a two step one:

1.It must be proven that the incident resulted from the ordinary and well-known activities to which motor vehicles are put (the “purpose test”); and

2.It must be proven that there is a direct causal relationship between the insured person’s impairments and the use or operation of the vehicle in question (the “chain of causation test” or, simply, the “causation test.”)

On June 18, 2011, the Claimant Eleanor Carr, then five years old, attended a classmate’s birthday party.  A firetruck had been parked in the driveway of the home where the party was taking place for the entertainment and education of the children.

Eleanor fell down the stairs and hit her head on the asphalt below, sustaining a head injury.  TD denied the claim on the basis that Ms. Carr had not been involved in an “accident” The hearing Arbitrator agreed with TD and held that this did not constitute an “accident”, and the Claimant was precluded from claiming benefits.  

The decision was appealed.  

The SABS defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…”  

The Supreme Court Case of Citadel General Assurance Company v Vytlingam amongst others establish that to satisfy the purpose test, the activity to which the person is putting the vehicle at the time of the incident must simply be a well-known, ordinary use for that particular vehicle.

In one extreme example, in Economical Mutual Insurance Company v Whipple, in a party bus that provides guests with access to a “stripper pole”, cavorting and doing a headstand with the assistance of that pole was considered to be an ordinary use of that vehicle.     

Vytlingam further confirms that the function of the purpose test is to exclude coverage for off-beat or aberrant uses of vehicles.

Additionally, there is case law which suggests that in order to satisfy the purpose test, the activity to which a vehicle is put need not be active.  In Economical Mutual Insurance Company v. Caughy the Ontario Court of Appeal stated that “parking a vehicle is an ordinary and well-known activity to which vehicles are put.”  In the FSCO decision DiMarco and Chubb Insurance Company of Canada, it was considered an accident when a cyclist fell while swerving around a parked vehicle.

In Carr, TD conceded that Ms. Carr’s impairments were indeed caused by her fall from the firetruck, therefore, the causation test was satisfied.  

With respect to the purpose test, Director Delegate Feldman determined that it was an ordinary and well-known use of firetrucks to be used for educational and entertainment purposes and allow individuals into the passenger compartment.  As Ms. Carr’s use of the stairs to exit the firetruck did not constitute an aberrant use of the firetruck, it was not precluded from meeting the definition of an “accident” within the meaning of the schedule.  As such, Director Delegate Feldman overturned the decision of the hearing Arbitrator and ruled that Ms. Carr was involved in an accident, and was therefore entitled to accident benefits.  

Coverage is sometimes a difficult nut to crack. Your counsel can help you by providing advice and anaysis and gathering evidence through timely EUOs and investigations. Insurers have both s. 32(10) and s. 33 to extend the timelines to make the determiantion of whether an inident is an accident, but time is of the essense when investigating such a crucial issue.

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