Causation test met - Hood falling on Driver filling washer fluid reservoir is an ''accident' pursuant to the SABs - Davis v. Aviva Canada Inc., 2017 ONSC 6173 (CanLII)
December 04, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Davis v. Aviva Canada Inc., 2017 ONSC 6173 (CanLII)
Date of Decision: October 16, 2017
Heard Before: C.T Hackland J.
DEFINITION OF ACCIDENT: checking fluid levels is an ordinary and well known activity to which cars are put; Purpose test met; causation test met; accident occurred pursuant to the SABs
Davis appeared before the Court to seek a summary judgement that her injuries were due to an ‘accident’ as defined in the SABs, which occurred while she was using her car. Aviva made a cross motion for summary judgment dismissing the proceeding on the basis that the injuries did not occur in an ‘accident’ as defined in the SABs.
Davis was hurt when the hood of her vehicle collapsed on her while she was refilling her windshield washer fluid. The car was parked in her driveway, the engine was off and the plaintiff was not planning to go anywhere. It was her practise to check the vehicle’s fluid levels from time to time. She claims this is an accident under the Schedule since opening a hood and topping up the fluids is a well-known and ordinary task to which cars are put, and this satisfies the ’purpose test’.
Aviva disputes this claim.
The term “accident” is defined in S.3 (1) of the SABS as “an accident in which the use or operation of an automobile directly causes an impairment…”. The cases have clarified that the requirement of “use or operation of an automobile” is known as the “purpose test”. There is also the “causation test”, (“directly causes”), but counsel are in agreement that the causation test is met in this case.
Accordingly, Justice Hackland addressed the question “was Davis engaged in the use or operation of her car when she sustained her injuries”, and concluded that she was. In reaching this conclusion recent cases including Economical v. Caughy, 2016 ONCA 226 were considered. This case concluded that:
The sole questions for determination under that test in whether the incident in issue resulted “from the ordinary and well-known activities to which automobiles are put”. While the active use of an automobile (e.g. driving) would qualify under this test, there is no requirement that the vehicle be in active use.”
Previous decisions have agreed here it is the causation test that did the work, not the purpose test. Justice Hackland accepted and agree with the plaintiff’s position in the present case that opening the hood to check the level of the windshield washer fluid is one of the “ordinary and well known activities to which automobiles are put”. This is all that is required to satisfy the purpose test.
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