June 18, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
M.P. v Allstate Insurance Company of Canada, 2020 CanLII 30398 (ON LAT)
Heard Before: Adjudicator Reillay
Date of Decision: April 7, 2020
CAR ACCIDENT: what constitutes a car accident; purpose test; direct causation test; intervening act; SABs;
MP claimed to be in a car accident in March of 2017 when she went to a drive- through at a fast food restaurant and bought a cup of hot tea. The drink was passed over on a tray which she placed on the seat until she arrived at a red light. She noticed that the lid was not securely fixed and claims to have lifted the cup out of the tray, placing it in front of her to secure the lid before putting it in the car’s cup holder.
She held the cup in one hand and pressed down on the lid with the other. At that point the tea spilled on her, injuring her. She made a claim pursuant to the SABs for accident benefits. The insurer denied the claim and MP appealed it to the Licence Appeal Tribunal (the "LAT"). In the hearing the LAT considered the definition of "accident" in s. 3(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "SABS").
Subsection 3(1) of the SABS defines "accident" as follows:
"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
- Was MP’s impairment caused by ‘an accident’ as defined in sec 3(1) of the Schedule
- The impairment is not an ‘accident’ pursuant to the Schedule
Allstate argued that the drive-through employee was negligent in incorrectly placing the lid on the cup and that this act of negligence combined with MP’s attempt to secure the lid while at a red light are the intervening acts that caused her injuries.
MP submitted that there were no intervening acts causing her injuries. She states that having a beverage in the car and using cupholders in the vehicle are an ‘ordinary course of using the vehicle’. She further submitted that this case is no different than those in Dittman v. Aviva Insurance Company 2016 ONSC 6429, aff’d 2017 ONCA 617, leave to appeal to SCC dismissed 2018 CanLII 12956. In Dittman v. Aviva the plaintiff spilled hot coffee in her lap while taking it from the drive through window and putting it into her cup holder. At the time of the accident her car was stopped but still in gear. The Court agreed with the plaintiff and Justice Gordon stated:
I am content that but for the use of the vehicle the plaintiff’s injuries would not have occurred. I come to this conclusion because but for her use of the vehicle she would not have been in the drive-through lane, would not have received the coffee while in a seated position, would not have been transferring the coffee cup to the cup holder across her body, and would not have had the coffee spill on her lap. In addition, but for her being seated and restrained by a lap and shoulder harness she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.
In Dittman there was no intervening act and the plaintiff’s injuries were part of the ordinary course of event. The decision was upheld on appeal. The Court of Appeal indicated that the focus should not be what triggered the event but what caused the problem. In this case they were the use of a vehicle with the engine running, in gear, access to the drivethrough and the seat belt which were all directly to blame and dominant features of the cause of the the plaintiff’s injuries.
The LAT found that the applicant’s impairment was not an ‘accident’ pursuant to the SABs. The Adjudicator noted that unlike in Dittman in MP v Allstate the lid was not improperly secured and the restaurant employee was negligent.
The Adjudicator also noted that in this case MP had ot move her cupin order to secure the lid, noting that MP could have left the cup where it was. Taking the cup out of the tray and trying to secure the lid was ‘out of the ordinary’
The Adjudicator concluded that the actions of the employee and the applicant were intervening acts that caused the injuries.