June 26, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Zenith and McAlpine
ACCIDENT: ATV spooks horse; but for test; causation; incident ruled an accident pursuant to SABS
Date of Decision: May 9, 2017
Heard Before: Adjudicator David Evans
- The Arbitrator’s Order of October 2, 2015 is confirmed and this appeal is denied.
REASONS FOR DECISION
Ms. McAlpine was riding her horse when an ATV drove past on a concession road. Shortly after they passed one another the horse spooked throwing Ms. McAlpine from the horse. She was then trampled and suffered a head injury. She has no memory of the accident. She claimed car insurance benefits from her insurer Zenith.
The issue at the arbitration hearing was whether this was an “accident” as defined in the Schedule and did the ATV directly caused an impairment. The Arbitrator found that this was an accident because:
- The ATV was being put to an ordinary use
- But for its use, Indigo would not have been spooked
- The chain of causation was not broken by Indigo slipping on the mud
- The ATV was the dominant feature of the incident
- The incident was therefore covered under automobile insurance
For the reasons set out below find the Arbitrator did not err in her finding.
Ms. McAlpine was riding her horse with here sister when driving south on the same road was Mr. Musclow in his racing ATV, with Ms. Sarah Nichols seated directly behind him. Mr. Musclow testified that while he had never before encountered a horse on the road while on his ATV, his father had taught him over the years to be quiet around horses. Accordingly, he knew to pull in his clutch to quiet the sound of the ATV when approaching the horses to avoid startling them.
The witnesses agreed that Mr. Musclow declutched, the ATV coasted past and about six to eight feet away from the horses, and then Mr. Musclow and Ms. Nichols looked back to see if the horses were okay. The witnesses also agreed that the horses got spooked, leading to Ms. McAlpine landing in the ditch, and that the entire incident, from the time the ATV passed the horses until the time Ms. McAlpine lay injured in the ditch, took only a matter of seconds.
However, with respect to what happened as the ATV passed the horses, the Arbitrator preferred the evidence of Ms. Prentice. She testified that she heard Mr. Musclow’s loud ATV before it crested over a hill in the distance, moving quickly toward them. As he approached, Mr. Musclow stood up on his ATV and, about 25 feet ahead, declutched to quiet and slow the ATV. When Mr. Musclow had just passed her, the muffler came up loud and the ATV’s tires spun up gravel and dust. This spooked the horse, who then bumped the other horse. Both horses turned towards the ditch. As this happened, Ms. McAlpine was thrown off before she fell and was trampled.
The Arbitrator then turned to the legal tests used to determine if an incident was an accident. She set out the two-part test – purpose and causation – to be applied in considering whether the incident was an “accident” and concluded that Ms. McAlpine was involved in an “accident” when the ATV passed her and she was tossed from her horse.
The Arbitrator considered the purpose and the causation tests. The starting point is the “purpose” test set out in Amos. Zenith submits that the Arbitrator paid too little attention to the purpose test, as Ms. McAlpine’s injuries did not result from the ordinary and well-known activities to which automobiles are put, but directly resulted from a horseback riding accident. However, as the Arbitrator noted, the ATV, which no one disputed was an automobile, was being used in an ordinary and well-known way. Zenith also submits that this is not the sort of loss that the legislature intended the SABS to cover. That is more appropriately dealt with under the dominant feature test. Arbitrator Evans found the Arbitrator was correct in finding this incident passes the purpose test.
Zenith argues the “but for” test, submitting that but for the mud, the horse would not have been stuck, would not have panicked and would not have thrown and trampled Ms. McAlpine. The horse and the mud were therefore the instrument of the injury and not the ATV. In support of its position, it relies on cases where the motor vehicles were found to be merely fortuitous or incidental.
Arbitrator Evans found the logic of those cases do not apply here, determined there was no error in the Arbitrator’s conclusion that Indigo’s stepping into the mud was not a new or independent source of injury, but rather flowed sequentially from the use or operation of the ATV.
Zenith submits that the incident falls outside the reasonable expectations of insurers and insureds. The Arbitrator in this case identified the four factors listed in Irving: time, proximity, activity and risk. The sequence of events were close in both time and proximity. She noted that the witnesses agreed that the entire incident, from the time that the ATV passed the horses six to eight feet away until the time that Ms. McAlpine lay injured in the ditch, took a matter of seconds. She found that the ATV had to pass close to the horses due to the narrowness of the road, and that the horses were spooked by the noise when Mr. Musclow let out the clutch after passing them. Section 167 of the HTA anticipates that horses will ride on highways, so that was not an unusual activity. As to risk, the Arbitrator found that the fact that horses can be spooked are part of the ordinary risks of the normal activity of horse riding. She noted that both Mr. Musclow and Ms. Nichols were aware that horses could be spooked by motor vehicles: Ms. Nichols testified that she squeezed Mr. Musclow to signal the oncoming horses because she was concerned and knew that horses could be spooked; Mr. Musclow squeezed her hands back with his arms to acknowledge that he was aware of the horses; both of them looked back out of concern once they passed the horses to check that the horses had not been spooked.
In conclusion, Arbitrator Evans found that the Arbitrator made no error in finding that the incident passed both the purpose and the causation tests. The ATV was being used for a normal purpose. But for its passing him, Indigo would not have been spooked. His reaction to it and to slipping on the mud beside the road were part of the ordinary course of things. Looking at the factors of time, proximity, activity and risk, the dominant feature remained the ATV throughout the incident, and this was an incident that common sense says should be covered by insurance.