The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
In order to qualify for accident benefits one must be able to establish that their injury occurred in the course of the use or operation of an automobile. According to the Statutory Accident Benefits Schedule (SABS), 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 definition has been the subject of much debate, particularly with respect to what constitutes the “use or operation of an automobile”. The interpretation and application of this definition is significant in that in certain situations this will determine whether an injured person is able to receive accident benefits, which may include housekeeping, caregiving, attendant care, income replacement and medical-rehabilitation.
In the recent case of Webb v. Wawanesa this issue was considered at a FSCO arbitration hearing. In this case, Ms. Webb stated that she exited her car on the driver’s side, locked the door and walked around the car to the front. She stated that she has a compact car and it took her, a few seconds, two or three steps to get to the access point. When she put her foot onto the access point, she slipped on ice and fell backwards. As a result of this fall, Ms. Webb broke four bones in her right foot.
Ms. Webb argued that the process of getting out of her car falls within the ambit of the ordinary use or operation of a motor vehicle. She argued that that disembarkation is complete when one has reached a point of safety, and that she had not reached a point of safety, i.e. the sidewalk, when she fell.
In her decision, the arbitrator emphasized the fact that getting out of a car is a normal activity required by the use or operation of that car. On the facts of this case, the arbitrator found that Ms. Webb was still in the course of disembarking from her car when she fell on the roadway. She found that Ms. Webb had not safely and completely disembarked from her vehicle when she fell. Accordingly, the arbitrator ruled that Ms. Webb was injured as a result of a motor vehicle accident pursuant to subsection 2(1) of the SABS, and therefore she is eligible to receive accident benefits as set out in the SABS.
This case is an important one for anyone who has suffered an injury in the course of getting out of a car, getting off a bus or disembarking from any other type of automobile. If the injury was sustained in these circumstances, and there was no intervening cause between getting out of the vehicle and the injury, the injured party will be eligible to receive accident benefits. This can provide a huge benefit to the injured party, because accident benefits are “no-fault” benefits. This means that the injured person will be able to access insurance money through the accident benefits even if they are unable to prove that the injury was caused by someone else’s negligence.
* This blog is for informational purposes only and is not meant to substitute legal advice. Please read our disclaimer for further information.
* All of our lawyers are licensed by The Law Society of Upper Canada
* Office in Toronto and able to represent people in the province of Ontario