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Nov 25, 2014

Victim who was hit by a parking garage arm is entitled to accident benefits

by Anu Bakshi

A recent case found that the definition of an "accident" for the purposes of receiving accident benefits has been expanded to include being struck by the traffic control arm in an underground parking garage. 

The case of Kasman v. Security National Insurance Co. was released on October 2, 2014. On July 15, 2010, Mr. Kasman walked into an underground parking garage to retrieve his parked car and was struck on the head by the arm that controls traffic entering the garage. Security National denied his claim for accident benefits on the basis that he had not been in an “accident”. There was video evidence that Mr. Kasam was walking under the arm, following a car that triggered the arm to lift. The arm came down because the car Mr. Kasman was following continued into the garage, triggering the sensor that causes the arm to lower. 

Arbitrator Rogers relied on the Court of Appeal decision Greenhalgh v. ING Halifax Insurance Co. (2004), 72 O.R. (3d) 338 and found that two questions must be answered in order to satisfy the definition of “accident” in s. 2(1) of the Schedule: 

  1. Did the incident arise out of the use or operation of an automobile? (the purpose test) and; 
  2. Did such use or operation of an automobile directly cause the impairment? (the causation test). 

The purpose test: In analyzing the situation before him, Arbitrator Rogers stated that the purpose test had been satisfied in this case. He stated as follows: "The purpose test is applied by determining whether the incident arose out of the ordinary and well-known activities to which automobiles are put. There is no doubt that the car entering the parking garage was engaged in an ordinary and well-known activity to which automobiles are put."

The causation test: In his analysis of whether the causation test had been met, Arbitrator Rogers relied on the Court of Appeal decision Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776, which described the approach to applying the causation test as follows: “When one thinks of direct causation one thinks of something knocking over the first in a row of blocks after which the rest falls down without the assistance of any other act.” It is also called the "domino effect": to meet the test the vehicle must knock over the first domino and the other dominoes must continue to fall until the injury occurs. 

Arbitrator Rogers concluded that Mr. Kasman was injured in an “accident” as defined in s. 2(1) of the Schedule. He explained as follows: "I find that the entry of the car that Mr. Kasman followed into the parking garage directly caused his injury. I find no act between the use or operation of the car and his injury. I reject Security National’s submission that the lowering of the arm is an independent act because the arm is operated by a mechanism separate from the car. Had the car hit the arm, which in turn hit Mr. Kasman causing injury, there would be no doubt regarding causation. I see no qualitative difference because the arm is remotely triggered." 

The Arbitrator found that Mr. Kasman had established the direct connection between the lowering of the arm and the car he followed into the garage. Therefore, Mr. Kasman was entitled to accident benefits.


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