October 26, 2010 by Canadian Underwriter
Just a few steps can mean the difference between a slip-and-fall case and auto insurance accident benefits payments, as illustrated in an arbitration decision issued by the Financial Services Commission of Ontario (FSCO).
In Fee Nung Wong and St. Paul Fire & Marine Insurance Company, Fee Nung Wong sought accident benefits after she slipped and fell while getting off a motor coach owned by AZ Bus Tours and insured by St. Paul.
Wong was traveling back to Toronto from Casino Rama in the morning of Mar. 13, 2008. The bus had a number of drop-off points in Toronto, including a Kentucky Fried Chicken parking lot, which was covered in black ice.
“From the point of view of eligibility for accident benefits, the manner and timing of Ms. Wong’s fall is crucial,” FSCO arbitrator John Wilson wrote in his decision.
“In this matter, Ms. Wong alleges that any impairments she suffered as a result of her fall were directly caused by the use or operation of the motorcoach in which she traveled from Casino Rama to Toronto.
“St. Paul on the other hand takes the position that however unfortunate Ms. Wong may have been, she actually suffered a slip and fall on an icy parking lot that was not in the control of the operator, and which was not occasioned by the use or operation of a motor vehicle.”
Testimony at the arbitration suggested Wong had slipped after she had stepped one or two metres from the bus.
“It is plausible that if Ms. Wong stumbled or tripped on the stairs of the coach, and tumbled headlong to the ground, finishing some metres away from the coach, her injuries sustained in ultimately hitting the ground could be found to arise directly from the operation of a motor vehicle – the motorcoach in this case,” Wilson found.
“Such a scenario and such a conclusion would be consistent with Re Polemis. It would not, however, be consistent with the evidence in this arbitration.”
Wong was therefore not entitled to accident benefits, Wilson ruled.
“There was a separation in distance and time from the disembarkation from the coach and the subsequent slip and fall,” he wrote. “I find therefore that the incident that gave rise to Ms. Wong’s injuries did not directly arise from the use or operation of a motor vehicle.”