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September 2017

LAT Broadens the Definition of Accident as per SABS

Case Comment: 16-00218 v. Aviva Insurance

The recent LAT decision in 16-000218 v. Aviva Insurance broadens the definition of the term "accident" as per SABS and potentially opens doors for accident benefits claims being brought forward that don't necessarily fit neatly into the classic category of what we are used to thinking about as an "accident".

On April 16, 2009, the applicant, a seven-year old elementary school student suffering from cerebral palsy and quadriplegia was picked up by a school bus at her home. Due to her disability, the applicant was attached to a seatbelt and her wheelchair was strapped down on all four corners by the driver. The driver was to take the applicant to school, but instead, with the applicant still in the vehicle, travelled to the driver's own house, got into a different vehicle, and left. The applicant remained in the school bus, alone and unattended, for approximately two hours. The applicant alleged psychological and mental injuries and impairments.

The adjudicator had to ascertain whether the circumstances involving the applicant constituted an "accident" as defined in section 2(1) of the Statutory Accident Benefits Schedule- Accidents on or After November 1, 1996.

The applicant submitted that the incident met the definition of an "accident" as defined in the Schedule and that she should be allowed to claim accident benefits for the impairments resulting from the incident. The respondent submitted that the incident did not qualify as an "accident" because it did not arise out of the ordinary use of an automobile.

The Tribunal determined that the incident on April 16, 2009, did, in fact, conform to the definition of an "accident" as per the Schedule.

The current two-part test used to determine whether an incident qualified as an "accident" as per the Schedule was set out in Chisholm v. Liberty Mutual Group.1 The first part is a purpose test, that is, it must be established that the use or operation of the vehicle was the cause of the injuries.

...the question is whether the use or operation of the vehicle was a "direct cause" of the respondent's injuries.

The second part is a causation test, that is, it must be shown that there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the "ordinary course of things". In other words, the question is whether the use or operation of the vehicle was a "direct cause" of the respondent's injuries.

In Greenhalgh v. ING Halifax Insurance Co.,2 the court suggested a three-prong test to aid in determining the issue of causation. First is the "but for" test. Second, it must be determined whether an intervening cause breaks the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile. Third, it must be determined whether the use or operation of the automobile was the dominant feature of the incident.

In this particular case, the adjudicator found that part of the ordinary use of a disabled transport is that the rider must be loaded and secured until the reverse process takes place. The use of the school bus would, therefore, end when the applicant was unbuckled from her seat and loaded in her wheelchair outside the bus. As such, the use of the school bus had not finished when the applicant was left on the bus by herself.

The adjudicator reviewed the three prongs of the causation test. Both the applicant and the respondent agreed that the but-for-test had been met.

The adjudicator determined that there was no evidence that the applicant's injuries were caused by an intervening act breaking the causation link, and as such, the second prong was met, as well. Further, it was noted that the applicant's injuries began while the school bus was still in motion, and as such, the alleged distress began while the bus was being used for its undisputed ordinary and well-known purpose.

Finally, it was concluded that the use of the automobile was the dominant feature of the incident. It recognized that the school bus driver's negligence was the direct cause of the applicant's injuries; however, it determined that it was through the use and operation of the school bus that the driver demonstrated the negligence.

This decision highlights the broad interpretation that the courts, FSCO and now LAT have given to the definition of the term "accident" as per the Schedule. As such, one can anticipate an increase in claims arising from incidents that would not necessarily meet the classic and expected a description of what an "accident" is – or at least not the types of accidents to which we are accustomed.

1 [2002] OJ No 3135, 60 OR (3d) 776.
2 [2004] OJ No 3485, 243 DLR (4th) 635.


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