January 28, 2013

Accident Benefits Update- To Have Been Or Not To Have Been In An Accident, That Is The Question

ACCIDENT BENEFITS UPDATE 

For the week of January 28 to February 3, 2013

 To Have Been Or Not To Have Been In An Accident, That Is The Question

In Dominion of Canada General Insurance Company v. Prest (2013), the Court was faced with the task of determining whether the Plaintiff was involved in an Accident as defined in the SABS. The Plaintiff was involved in a slip and fall which occurred in April 2012 while the Plaintiff was attempting to wash his vehicle. He parked his vehicle in a parking space at his residence, and tripped and fell on a curb while walking around his vehicle.

Subsection 3(1) of the SABS defines Accident as “an incident in which the use or operation of an automobile directly causes an impairment…” The Court reiterated the test for determining an Accident as set out in Chisholm v. Liberty Mutual Group (2002) and Greenhalgh v. ING Halifax Insurance Co. (2004), a two part test:

(a) Did the incident arise out of the use or operation of an automobile (the “purpose test”); and

(b) Did such use or operation of an automobile directly cause the impairment (the “causation test”).

The Court decided the incident failed the first part of the test, based on the facts of the case. The Court noted: “In examining the purpose test, the court must determine whether the incident or accident resulted from the ordinary and well known activities to which automobiles are put.” The Court found that, at the time of the incident, the vehicle was neither being used nor operated. As the Court stated: “A parking spot at one’s residence is typically where a car is put when there is no intent to use it.”

The Court also went on to opine on the second part of the test, finding:

Here the only role played by the motor vehicle was that the respondent drove it to the general location of where the incident occurred. The use of the car had ended without injury being suffered. Mr. Prest had left the car and then was injured by a new intervening act, namely when he tripped over the curb that in the respondent’s words “sticks out”. He parked the car in its usual spot and that did not create any special risk beyond the risk faced by Mr. Prest every time he parked his car in his parking spot. If that curb is in a bad location or is otherwise dangerous, that is an occupier’s liability issue.

Analysis

Cases such as this turn on the particular facts of the case. A different judge may very well have reached a different conclusion. Regarding the first part of the test, while parking his vehicle in a parking spot in his complex may have signified the Plaintiff’s intention to stop using his vehicle, washing his vehicle would surely involve the use of his vehicle. The vehicle is intrinsic to the act itself. There is no act without the vehicle. Similarly with the second part of the test, the Plaintiff would not have been in the vicinity of his vehicle but for his intention to wash his vehicle. By extension, the Plaintiff would not have suffered the injury had he not intended to wash his vehicle.

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