Birthday Party Fall from Fire Truck not an “accident”0 November 6, 2015 at 4:37 pm by Daniel Strigberger
In Carr v. TD, the five-year-old claimant was attending a birthday party for a classmate at her classmate’s home. Her classmate’s father and grandfather were volunteer firefighters for the Town of Niagara-on-the-Lake. After obtaining the necessary permission, they brought a fire truck owned by the Town to the birthday party. The children attending the birthday party were invited to tour the fire truck. When the children were touring the truck, the truck was stationary and the engine was off. As the children toured the fire truck, the classmate’s grandfather walked around talking to their parents and educating them on the use of the truck. The claimant apparently lost her footing and fell as she went down the steps getting off the truck. She was injured when she hit the ground.
As a result of the incident, the claimant applied to TD (her father’s insurer) for accident benefits. TD denied the claim on the basis that the claimant was not involved in an “accident”, as that term is defined in section 3 (1) of the SABS:
3. (1) In this Regulation,
“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.
The arbitrator considered the “purpose” and “causation” tests that have evolved in the jurisprudence over the years. For the “purpose” test, the question is whether the incident resulted from the ordinary and well-known activities to which the automobile (fire truck) was put.
The arbitrator agreed with the claimant that getting out of a fire truck is the normal use of a vehicle, and in determining normal use and operation, the individual characteristics of the truck must be taken into account. The arbitrator accepted that the use of the fire truck at the birthday party was a normal use of the truck in the circumstances.
However, the arbitrator held that the use of the truck in this instance did not involve the fire truck being used as an automobile. She found that the vehicle was being used as a “display for entertainment and/or educational purposes”. She held, “Although the evidence indicates that this was a legitimate use of the truck, it was not a type of use or operation contemplated by Section 3(1).”
The ongoing saga continues as to whether unusual incidents involving vehicles are automobile “accidents”.
See Carr v. TD, FSCO A14-003622
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