Woman Not Injured in Accident When Jumping off Tailgate of Truck into Lake and Becomes Paraplegic

April 14, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Intact and Roberts: Was it an accident; Applicant not in an accident; SABs definition of accident; paraplegia; apinal cord injury

Date of Decision Date: March 15, 2017
Heard Before: Adjudicator David Evans

APPEAL ORDER  

1. The appeal of Arbitrator Musson’s order dated January 4, 2016, is allowed. Paragraphs 1 and 2 thereof are rescinded and replaced with the following:
   1. The Applicant was not involved in an accident as defined by the SABs.
   2. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, an expense hearing may be arranged in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

REASONS FOR DECISION

Intact Insurance Company appeals the decision of Arbitrator Musson in which he found Ms. Roberts was involved in an “accident.”

Ms. Malaya Roberts is quadriplegic because she dived off the back of a Ford pickup truck into the shallow water of a lake at 2 AM after a night of partying in Manitouwadge. The owner of the truck backed it up to the lake and people were doing cannon balls off the open tailgate.

She can only claim accident benefits from the truck’s insurer if the incident was an accident as defined in the SABS - an incident in which the use or operation of an automobile directly caused an impairment.

Arbitrator Musson found that Ms. Roberts was an insured under the owner’s insurance coverage with Intact as an occupant of his truck. He also found that, based on the severity of her injuries, common sense, and the general laws of physics, a reasonable inference was that Ms. Roberts jumped into the lake from the tailgate of the pickup truck. Arbitrator Musson also found that using the truck bed in a recreational manner as Ms. Roberts did is an ordinary use. He found that the truck was being used in a manner consistent with its design, in that she and her friends were “tailgating,” or conducting a social event on or around the open tailgate of a truck. He noted that automakers promote tailgating by installing accessories such a cup holders in truck boxes.

Arbitrator Musson found that since Ms. Roberts passed both the purpose and the causation tests, she was in an accident when she dived off the tailgate of the truck. She was therefore entitled to claim accident benefits from Intact. He also awarded her expenses, although he had received no submissions on expenses and provided no reasons for the award.

Arbitrator Musson found that Ms. Roberts was using the truck for its purposes — its ordinary and well-known activities — in the incident, and that the incident directly caused her injuries, so she was in an accident and entitled to claim accident benefits. However, Arbitrator Musson failed to follow binding case law establishing that treating a truck as a diving platform is an aberrant purpose and not one covered by automobile insurance. Therefore, Ms. Roberts was not in an accident and is not entitled to claim accident benefits.

The appeal is therefore allowed. Given my finding that Ms. Roberts was not involved in an accident, Arbitrator Musson’s order awarding expenses to her cannot stand either. I note that in the body of the arbitration decision, Arbitrator Musson stated that the parties made no submissions on expenses, yet he awarded Ms. Roberts her expenses in his order. That order was therefore made without reasons or submissions, so on those grounds alone his expenses decision would be rescinded.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.