This recent Statutory Accident Benefit case was hotly contested, likely because a lot of money was on the line when the claimant sustained catastrophic injuries after falling from the roof of a trailer that he was cleaning and inspecting prior to embarking on a trip. The Licence Appeal Tribunal (“LAT”) ruled that this was not an “accident” as defined in the Statutory Accident Benefit Schedule (“SABS”), thereby denying any recovery for the claimant.
The claimant’s request for a Reconsideration (heard by the same Adjudicator) was dismissed. However, the LAT ruling was overturned on appeal to the Divisional Court, as reflected in this recent decision.
Why the difference in opinion? The Divisional Court concluded that the LAT adjudicator erred in interpreting the law, in two primary ways. First, the Adjudicator incorrectly imposed a requirement that there be some manner of contact between an injured party and a vehicle (the trailer in this instance). This is plainly wrong. The case law is very well settled that contact with an automobile is not a necessary element for an “accident” to have occurred under the SABS.
Second, the Adjudicator incorrectly required the claimant to prove that the fall “was as a result of tripping on some part of the trailer” which is not only contrary to the definition of “accident” in the SABS, but is also inconsistent with the decision of the Court of Appeal for Ontario in Greenhalgh v. Ing Halifax Insurance Co., 2004 CanLII 21045.
There are only two tests to satisfy (as defined in Greenhalgh and elsewhere):
- Did the incident arise out of the use or operation of an automobile (purpose test)?
- Did such use or operation of an automobile directly cause the impairment (causation test)?
In this instance, the claimant was in the process of using his vehicle – he was cleaning and inspecting it.
In this instance, the cleaning of the trailer directly caused his impairment – the injuries were caused when he fell from the rooftop of the trailer.
The trailer didn’t need to “cause” the fall as the Adjudicator required (ie: a jagged edge, or a loose piece of sheet metal, etc). The claimant didn’t need to make contact with the trailer either – losing footing and stepping over the edge would still a derivative of being on the roof for cleaning and inspection. As stated in Chisholm v Liberty Mutual Group, 2002 CanLII 45020 ONCA, “an incident (ie: lost footing) is not an intervening act if it is a normal incident of the risk created by the “use or operation” “(ie: cleaning the roof).
This case is also interesting because the claimant could not explain, due to his brain injury, how or why he fell. But the court considered this inconsequential. He was on the roof to clean and inspect, and fell off: no foul play was alleged. As noted above, if he fell because he tripped on something, or simply stepped over the edge because he failed to properly identify the edge, the result is the same – he was still using the trailer conventionally, and was injured as a result of falling off the trailer during that use.
As summarized by the Divisional Court:
“the test only requires that the Adjudicator consider whether …(the Claimant) … was injured in the course of cleaning and inspecting the roof of the trailer. In fact, the Adjudicator found that … (the Claimant)… was injured in the course of cleaning and inspecting the roof of the trailer. … (The Claimant’s) … injuries flow directly from that purpose.”
Although not addressed in the decision, I think for illustrative purposes it is important to consider alternatives. For example, and by contrast, if the claimant was using the trailer for a purpose it was not intended – ie: to build a skating rink on the top, or to start a rooftop garden, then it is unlikely this would be considered an accident because the vehicle wasn’t being used for its intended purpose, but in this instance, trailer owners must occasionally clean and inspect trailer tops – to inspect for holes (to prevent water damage, to clean ice to prevent damage and ice slabs from breaking off while driving, etc.). To me, this is a very well-known and acceptable risk underwritten by insurance companies: as such, when injuries arise, benefits should flow.
Madore v. Intact Insurance Company, 2023 ONSC 11 (Div. Crt.)
https://www.canlii.org/en/on/onscdc/doc/2023/2023onsc11/2023onsc11.html