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Does falling on snowbank after exiting the car count as an accident?
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In this case, Daphna Webb had parked her vehicle, physically exited it, closed the car door, locked it, put her keys in her purse, walked up the side of the car, crossed in front of the car without incident and had proceeded to an access point a foot ahead of the front bumper of the car, when she fell.

Daphna Webb was not in the process of actually alighting from the vehicle when the incident took place. Daphna Webb was not intending to momentarily return to her vehicle. No automobile contributed physically to her injuries. There was a temporal distance between the physical exiting of the car and the injuries. Daphna Webb's car was not blocking the access point. The vehicle was not an obstacle. At no time during the incident did Daphna Webb touch her car.

This was not a case of an insured person falling while checking whether there was a fire hydrant obscured under the adjacent snow or whether there were any posted restrictions regarding parking. Nor was this a case of an insured person walking back from a "pay and display" machine to place the ticket on the dashboard or feeding a single space meter, or similar situations where the use or operation of the vehicle could be seen to be a dominant feature.

Neither was this a case of a driver owing a duty of care, as a motorist, to a passenger in his or her vehicle, either generally, or, as set out in Kopas, under a higher, more specific duty to more vulnerable members of society such as children or those with a disability.

The time and distance separating the direct use and operation of the motor vehicle in this case and the subsequent, but not consequent, injuries, may not have been great. However, the separation was similar to, if not greater than in Diane Webb, Mahadan or in Wong, where Arbitrator Wilson found that an insured's slip and fall was not directly connected to the use or operation of an automobile when she fell on black ice in a parking lot after descending a motor coach and passing a tour guide.

Falling on ice and snow is part of the ordinary course of things in Ontario winters, unlike assaults or being wounded by gunfire that form the factual basis of some of the leading cases. However, as stated in Diane Webb, "the risk, at some point, must shift from a normal incident of using an automobile and become a risk associated with walking."

Applying the Arbitrator's prior reasoning in Mahadan, there was a "new and independent source" of Daphna 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. Prudently, Daphna Webb has commenced a law suit against the municipality and the maintenance contractor.

As in Greenhalgh, the use or operation of the car can be said to have led to the injuries. It cannot be said that the use or operation of the car directly caused the injuries. Looking at all of the circumstances of the case, with a common sense focus on the nature of the risk covered by automobile insurance, as Delegate Makepeace found in Diane Webb in similar if not possibly stronger circumstances for the insured person, Delegate Blackman respectfully concluded that Daphna 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.

Posted on Monday, Dec 10, 2012 - 10:24:00 AM EST
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