Canadian Underwriter

Woman falling on ice outside vehicle not an “accident”: FSCO delegate

August 24, 2012   by Canadian Underwriter

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A woman who slipped on ice after exiting her car is not eligible for auto accident benefits in Ontario because the incident does not constitute an “accident” under insurance regulations, a director’s delegate of the Financial Services Commission of Ontario (FSCO) recently ruled.

In Wawanesa Mutual Insurance and Webb, Daphna Webb was injured when she parked in a residential neighbourhood. After parking at a pedestrian access point along a snowy street, she exited the driver side and walked around the front of her car. Webb slipped and fell on ice, breaking four bones in her foot.

An original May 12, 2011 decision by FSCO arbitrator Joyce Miller found that Webb was still in the process of disembarking from her vehicle when she fell, thus constituting an “accident” under Ontario’s Statutory Accident Benefits Schedule (SABS). 

“Accident” is defined in section 2 of SABS as: “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.”

Miller ruled that “although the tripping on the roadway at the access point caused Mrs. Webb’s injuries, I find that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation. Accordingly, I find that the use of a motor vehicle caused an uninterrupted chain of events ending in Ms. Webb’s injuries.”

Wawanesa appealed the decision and argued the fall did not involve the use or operation of an automobile and that the arbitrator erred in misapplying the purpose and causation tests.

In a July 18 decision, director delegate Lawrence Blackman found in favour of Wawanesa and rescinded the earlier decision. Specifically, he held that here was a “new and independent source” of Webb’s injuries other than her car, namely, ice and snow at a pedestrian access point resulting from the weather conditions that, in the circumstances of this specific case, broke the chain of causation.

Blackman concluded Webb’s injury falls outside the scope of the applicable definition of “accident” and that the arbitrator erred in law in reaching the contrary conclusion.