An accident is defined under Section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“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.
Keeping this definition in mind, let’s say one is doing “cannonballs” by running and jumping from the box and tailgate of a parked pick-up truck into a lake. Does this qualify as an “accident” under the Schedule? According to Arbitrator Jeff Musson in the recent Financial Services Commission of Ontario decision, Roberts v. Intact Insurance Company it does.
In the early morning hours of August 13, 2011, Malaya Roberts (the Applicant) and four others used the box and tailgate of Michael Kelly’s pick-up truck to run and jump into Sand Lake (near Manitouwadge, Ontario) doing “cannonballs”. Mr. Kelly had backed his pick-up truck onto the beach, to the edge of the lake with the tailgate extending over the water. However, the rear tires of his truck became stuck in the sand; using a rope and his pick-up truck Craig Chabot towed Mr. Kelly’s truck a couple of feet forward. Mr. Kelly’s truck remained backed up to the lake, with the engine off but music playing out of the truck’s stereo.
The headlights from Mr. Chabot’s truck provided some light. However, because it was in the early morning hours, the bottom of the lake was not visible from the edge of the lake, making it difficult to judge the depth of the lake.
When it was the Applicant’s turn to jump into the lake the others did not witness how she entered the water nor does the Applicant remember how she entered the water. Based on her injuries and where she was last observed standing up in the box of the truck, Arbitrator Musson concluded that it is within the balance of probabilities that Ms. Roberts had jumped into the water from the tailgate of the pick-up truck in a similar manner to the others in the group that night. But, it was determined that after jumping into the lake, the Applicant landed in water that was approximately one foot in depth.
As a result, Ms. Roberts was catastrophically injured sustaining a complete (ASIA A) cervical spinal cord injury C5-C6, secondary to traumatic C5-C6 fracture-dislocation, rendering her a quadriplegic. She sought accident benefits from the truck owner’s insurer, Intact Insurance Company (“Intact”), who disputed whether the incident was an automobile accident as defined under the Schedule.
In order to determine if an accident occurred, Arbitrator Musson looked at the two part test (Purpose Test & Causation Test), as established by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia. Part One of the Test relates to the Purpose or Use: 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? Part Two of the Test relates to Causation: Was the use or operation of an automobile a direct cause of the injuries?
There were a number of cases Intact relied upon in order to provide relief from paying benefits to the Applicant. Arbitrator Musson distinguished these cases and concluded that the Applicant passed the Purpose & Causation Test as follows:
• There was no intervening occurrence between the Applicant 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 which passes the ordinary use test;
• There was not a third party act such as someone pushing her into the water;
• Ms. Roberts was not on the hood of the truck; she was in the bed of the truck and was using the truck bed in a recreational manner which is an ordinary use. She jumped from the truck bed into the lake;
• The vehicle was not being “radically changed”; it was being used in a manner that is consistent with how it was designed; and
• 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 context in which the incident occurred is tied directly to the recreational use of the bed of the pick-up truck.
Arbitrator Musson also looked at parking and disembarking and concluded that as long as an individual is exiting a vehicle, there are no limitations in terms of where they can exit. Further, disembarking can occur with an individual stepping out of a vehicle or rolling out of a vehicle or in this case hopping/jumping out of a vehicle repeatedly. For example, when a person is retrieving multiple items out of a pick-up truck, causing an individual to embark and disembark multiple times. In addition, there is no provision that states that a person’s insurance coverage is void if an individual disembarks onto one surface as opposed to another. In this case the Applicant disembarked into water which is not prohibited.
Having found the Applicant passed the ordinary use test, Arbitrator Musson moved on to the causation test. In the Applicant’s case, there was no intervening act between disembarking from the tailgate of the pick-up truck and the applicant hitting the water. “But for” the disembarking from the tailgate, the incident would not have taken place. With the evidence submitted, it was a reasonable inference that the pick-up truck was the last object that the Applicant’s body had contact with before hitting the water. Therefore, the Applicant’s incident also passed the causation test.
This decision is a good overview of the ever expanding definition of an accident and the applicable test to determine whether an unusual incident involving a vehicle qualifies as an accident for the purpose of applying for accident benefits.