January 30, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: January 4, 2016
Heard Before: Adjudicator Jeffrey Musson
REASONS FOR DECISION
Ms. Malaya Roberts was injured in an accident on August 13, 2011 and sought accident benefits from Intact. When the parties were unable to resolve their disputes through mediation Ms. Malaya Roberts applied for arbitration at the FSCO.
The issues in this Hearing are:
Was Ms. Malaya involved in an “accident” as defined in Section 3(1) of the Schedule?
Ms. Malaya was involved in an accident as defined by Section 3(1) of the Schedule.
On the evening of Friday August 12, 2011, Ms. Malaya Roberts, 19, and a group of friends were out for a night of socializing and drinking at a bar. At approximately 2:00 a.m. they all travelled to Sand Lake. Once at the lake, Mr. K backed his pick-up truck on to the beach with the tailgate extending over the water of the lake, allowing the people in the group to jump into the lake from his truck’s tailgate and box. When Mr. K backed up his truck to the lake, the rear tires of his truck became stuck in the sand and water. Using a tow-rope another pick-up truck towed Mr. K’s truck a couple of feet to free it from being "stuck" in the sand and water. Mr. K’s truck remained backed up to the lake, with the engine off but music playing out of the truck's stereo. The individuals in the group used the box and tailgate of Mr. K's truck to run and jump into the lake, doing "cannonballs". The other truck was positioned in such a way that the headlights of the truck provided some illumination while the individuals were swimming. Because it was in the early morning hours, the bottom of the lake was not visible from the edge of the lake, thereby making it difficult to judge the depth of the lake.
Everyone except Ms. Malaya proceeded to jump in and out of the lake numerous times. At one point friends recalled seeing Ms. Malaya standing beside and then she stepped into the back of Mr. K’s pick-up truck and was standing up in the box of the truck bed. A minute or so later Ms. Malaya was found floating face down in the lake about 10-20 feet away from the shore. A friend swam out and turned her. Ms. Malaya gasped, took a breath and started talking right away and said that she could not feel anything. The friends kept her floating in the water until paramedics arrived.
Based on the severity of Ms. Malaya’s injuries and where she was last observed standing up in the bed of the truck, it is within the balance of probabilities that Ms. Malaya had jumped into the water from the tailgate of the pick-up truck in a similar manner to others in the group that night. Unfortunately, it was determined that after jumping into the lake, Ms. Malaya landed in water that was approximately a foot in depth.
Intact is the automobile insurer of Mr. K's truck, however Intact disputes that the incident is an “accident” within the meaning of the Schedule. Intact also argues that Ms. Malaya is neither a spouse of Mr. K nor is she named on the insurance policy. The Arbitrator did not accept this argument.
Both parties agreed to a statement of facts related to this incident. Where there is disagreement is whether this incident should be considered an automobile accident as defined under the Schedule. In order to determine if an accident occurred, both parties are in agreement that the two part test as established by the Supreme Court of Canada should apply to this incident.
An accident is defined under Section 3(1) of the Schedule as: 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. Intact argues the definition has been narrowed such that it must be shown to be a direct cause by the use or operation of a vehicle.
Part one of the two-part test relates to the purpose or use test. Did the incident arise out of the use or operation of a vehicle in the ordinary and well-known activities to which vehicles are put (“the Purpose Test”)? From Intact’s perspective Ms. Malaya does not pass this test. They disagree with Ms. Malaya’s position that using the bed of a pickup truck for tailgating falls under the definition of ordinary use. Intact relied on case law and the Schedule in which to prove that this incident should not be considered an accident. They challenge that Ms. Malaya fell from the truck bed while disembarking and argue she has the burden of proof showing this occurred.
Based on the evidence presented the Arbitrator was of the opinion that a reasonable inference can be drawn concluding that Ms. Malaya jumped into the lake from the tailgate of Mr. K’s pick-up truck, and that there were no intervening occurrences between Ms. Malaya disembarking from the tailgate of the pick-up truck and landing in the water. The last activity before hitting the water was disembarking from the truck. In the Arbitrator’s opinion Ms. Malaya passes the ordinary use test. Ms. Malaya’s Counsel succinctly stated at the Hearing, automakers are promoting the use of trucks for recreational purposes by installing accessories in a pick-up truck box such as cup holders for people to use. The Arbitrator accepted this argument as well.
The Arbitrator also noted that a person disembarking from a vehicle can disembark onto various surfaces. That surface could be asphalt, gravel, concrete, ice, grass or a multitude of other types of surfaces including water. There is not a provision that states that a person’s insurance coverage is void if an individual disembarks onto one surface as opposed to another. This type of limitation does not exist, so in this case, Ms. Malaya disembarked into water, which is not prohibited. The Intact believes that in fact it should make a difference how a person disembarks and onto what surface the person disembarks because a specific surface is tied in with uses that the vehicle is a part of.
The Arbitrator concluded that Ms. Malaya, Ms. Roberts, does pass the ordinary use test and therefore she must also pass the causation test in order for the incident to be considered an accident as defined by the Schedule.
Part two of the two–part test relates to causation. Was the use of the truck the direct cause of Ms. Malaya’s injuries? If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
Intact is of the opinion that Ms. Malaya does not pass the causation test because the manner in which Ms. Malaya used Mr. K’s truck should be considered an intervening event from the journey to the lake. The Arbitrator disagreed with the Intact’s position. In the Arbitrator’s opinion, the truck is not an intervening act because from the time the truck was driven to the lake up until the incident, the truck was continually in use, and therefore it does not absolve the Intact of liability. In this case there is no intervening act between disembarking and injury.
Based on the evidence submitted and the jurisprudence provided, the Arbitrator concluded that Ms. Malaya was involved in an accident as defined in Section 3(1) of the Schedule. Ms. Malaya is therefore is entitled to submit a claim for benefits against Mr. K’s automotive insurance policy.