If you are injured in a car accident you are entitled to certain “benefits.”  The question in this case is whether or not the driver of a car was entitled to those benefits.

Before answering this question it’s important to note that when you get into a car accident you are entitled to receive certain “benefits” to help reintegrate you into society. If you are in a car accident you can receive car accident benefits like “attendant care” benefits which pays for people to attend to your care if your injuries prevent you from taking care of your needs at home. You can also receive income replacement benefits which helps replaces some of your income. You can also receive medical and rehabilitation benefits to pay for your therapy, medication ect.  These benefits – which are quite numerous – are quite vital to a person’s well being after a car accident.  In this care Mr. Prest was asking a Court weather or not he had “an accident” that would allow him to access these benefits…

What happened – was this a technically a car accident?

In the early afternoon of April 13th 2012 Mr. Prest parked his car in a parking spot in the garage of his apartment building so that he could wash it.  He got out of his car, walked around it and tripped over a concrete curb that “stuck out” from the wall of the parking garage.  He stated his right hand was touching the car when he tripped.  The Court said that there was no issue he suffered an impairment as a result of the incident.

What does the insurance laws say about this – is this a car accident?

Subsection 3(1) of the Schedule defines “accident” as meaning “an incident in which the use or operation of an automobile directly causes an impairment … .”

The Court looked at two Court of Appeal cases in the past –  (from 2002 and 2004) that asked the question a two-part test that involves a consideration of the following questions:

(a)  Did the incident arise out of the use or operation of an automobile (the “purpose test”); and

(b)  Did such use or operation of an automobile directly cause the impairment (the “causation test”).

 What did the Court say? Is tripping over a curb while going to wash your car an accident?

In examining the purpose test, the Court must determine whether the incident or accident resulted from the “ordinary and well known activities to which automobiles are put”. They found that it did not. At the time of the incident the vehicle was being neither used nor operated.  They noted that the car was parked in it’s regular parking spot for the purpose of washing it.  A parking spot at one’s residence is typically where a car is put when there is no intent to use it.

Here the only role played by the car was that Mr. Prest drove it to the general location of where the incident occurred.  The use of the car had ended without injury being suffered.

Mr. Prest got out of his car and then was subsequently injured by a new intervening act, namely when he tripped over the curb that in his words “stuck out”.  He parked the car in its usual spot and that did not create any special risk beyond the risk faced by Mr. Prest every time he parked his car in his parking spot.  If that curb is in a bad location or is otherwise dangerous, that is an occupier’s liability issue.

The answer was no – this was not a car accident. Poor Mr. Prest was not injured in a car accident or by the use or operation of his car and unfortunately he was not entitled to car accident benefits to help him get better. In this instance he had to rely elsewhere for payment of his rehabilitation.

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