April 1, 2007 by Donna Ford
Two recent arbitration decisions from the Financial Services Commission of Ontario (FSCO) are heading for appeal: Webb and Lombard General Insurance Company of Canada and Mariano and TTC Insurance Company Limited. Both cases involve slip-and-fall accidents on the roadway outside of vehicles. The cases, in my view, represent costly precedents in terms of widening the definition of an “accident” for the purposes of collecting accident benefits under the Statutory Accident Benefits Schedule (part of Ontario’s Insurance Act).
In Webb, the claimant was a front-seat passenger in a cab that took her to a hotel in March 2005. The driver stopped the cab under a carport awning that extended out from the area of the main lobby entrance. The passenger side of the cab was facing away from the hotel.
The claimant, Webb, paid the driver, exited the front passenger seat and started walking around the cab. She noticed little patches of ice under the cab but she did not slip. When she reached the back of the cab, she turned to walk toward the lobby entrance. She noticed more big patches of ice.
Past the midway point of the vehicle’s rear, one of her feet slipped on the ice. She reached out with her right hand and her fingertips touched the bumper, but she was unable to break her fall. She fell on both knees. She testified she fell “maybe one minute” after she exited the cab.
On Nov. 10, FSCO arbitrator Robert Bujold found the use and operation of the cab was one of the direct causes of Webb’s slip and fall. He found the location, orientation and continued presence of the vehicle clearly initiated and directed an uninterrupted chain of events that led Webb to the point where she fell.
FSCO made a similar finding in Mariano, which also analyzed a slip-and-fall case. Arbitrator Joyce Miller decided on Sept. 15, 2006 that Victor Mariano, a cleaner, was entitled to accident benefits after a slip-and-fall incident immediately following a city bus ride.
Mariano boarded a Toronto Transit Commission bus heading northbound in the early morning on his way to work in May 2005. He intended to switch to a westbound bus on Bloor Street. But when his northbound bus arrived at Bloor Street, the driver could not stop at the bus bay because of an illegally parked truck. As a result, Mariano was discharged onto the roadway.
After exiting from the rear door, Mariano testified at the hearing that he took two steps on the roadway when his right foot tripped over a raised hump in the asphalt. He fell forward and hit his head on the curb. It was still dark outside, and he fell within one to two seconds after he got off the bus.
In the legislation under which Webb and Mariano made their claims, an accident “means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.” This wording, introduced in 1996, replaced the wording in earlier legislation that allowed for such accidents caused “directly or indirectly” through the use or operation of an automobile.
Neither Webb nor Mariano were insured under their own auto insurance policies. Therefore, TTC Insurance Company Limited will pay Mariano’s claim and the cab’s insurer, Lombard, will pay Webb’s claim. The appeals of these decisions will be watched closely by auto insurers and personal injury lawyers in Ontario.
The issue of what constitutes an “accident” under the insurance legislation has been tested many times in court and at arbitration.
In 2002, Ontario Court of Appeal Justice John Laskin wrote in Chisholm and Liberty Mutual Group: “The legislative history of the Schedule shows an intent to differentiate between direct and indirect cause. Undoubtedly, as a cost-saving measure, the 1996 Schedule limits coverage to incidents in which the use or operation of an automobile directly causes an injury.”
In Clementina Pinarreta and ING Insurance Company of Canada, FSCO arbitrator Rosemary Muzzi decided in 2005 that Pinarreta was involved in an “accident” when she slipped and fell while exiting a TTC bus. The arbitrator made this finding even though Pinarreta had placed both of her feet outside the bus onto a snow bank present at the bus stop.
A parallel fact situation led to an entirely different result in Andrew Mahadan and Co-Operators General Insurance Company. In Mahadan, FSCO arbitrator Joyce Miller decided in 2001 that Mahadan was not entitled to accident benefits. He had parked his car in his usual spot in the parking lot of his condominium, took his groceries out of the trunk, closed the trunk and turned away from the car. He fell when his left foot twisted in a groove cut out of the pavement. As he fell, his right arm hit the trunk of the vehicle.
Arbitrator Joyce Miller found that what caused Mahadan to trip and fall was the crack in the pavement, not the use and operation of the motor vehicle.
Assuming the injuries to Webb and Mariano were not caused as a “direct” result of an “accident” within the meaning of the legislation, the insurance industry would therefore be hoping the appeals are successful.
The Webb appeal is scheduled for Apr. 27, 2007, and Mariano for July 11, 2007, both at the Financial Services Commission of Ontario.
Donna Ford is a chartered insurance professional, member of the Law Society of Upper Canada, and freelance writer who worked for years in the insurance industry.