Volume. 8 Issue. 36 – October 23, 2024
This week we review a case that considered whether an improperly secured lid causing hot coffee to spill while in the drive-through lane was a normal incident of risk created by the use or operation of a vehicle or was an intervening act that broke the chain of events causing it not to be an “accident” under the Schedule. The Tribunal broke with previous decisions on this issue.
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Loose Lid Unexpected ‘Accident”
Loose Lid Intervening Act? – On July 7, 2023 the Applicant Thompson was in the drive-through of a fast-food restaurant and suffered burns when coffee spilled on him as he received the cup due to an improperly secured lid. In Thompson v. Certas (23-013183 v Certas), Thompson sought a determination that he was involved in an “accident” as defined by s.3(1) of the Schedule. Thompson argued he would not have been injured had he been seated at a table instead of in a motor vehicle and relied on Dittmann v. Aviva (Dittman) where the Court of Appeal found an accident had occurred when the insured spilled hot-coffee in a drive-through. He submitted the dominant feature of the incident was his inability to exit the vehicle following the spill because the drive-through lane blocked his ability to open his door and because he was fastened to the seat by his seatbelt.
The parties agreed that the “purpose test” was met, but disputed the “causation test” which asks if the use or operation of an automobile directly caused the impairment. Certas submitted that it was pure speculation that Thompson would not have sustained his injuries had he been seated at a table, and that there was no evidence suggesting his injuries were made worse because the coffee was spilled on him while seated in a vehicle. It submitted if the “but for” test was met, that the improperly secured lid was an intervening act and dominant feature of the incident as found by the Tribunal in Rathbone v. Co-operators (2023 CanLII 58468), Peltier v. Aviva (2023 CanLII 52326), and Miceli v. TD (2024 CanLII 18090).
The Tribunal found that Thomposn’s injuries would not have occurred “but for” the incident involving hot coffee while operating a motor vehicle in the drive-through lane as supported by photographs of his burns and his sworn statements. It found it was not bound by the Tribunal decisions cited by the Respondent finding an improperly secured lid was an intervening event. While all four decisions cited Dittman, here the Tribunal noted that the intervening acts contemplated by the Court of Appeal were those that were “clearly unexpected”. It found that “no unexpected event occurred here that would disrupt the chain of causation. Dittmann found that an accident occurred because an automobile was being used to acquire a hot beverage at a drive-through window of a fast-food restaurant and that the beverage might inadvertently spill is a normal incident of the risk created by that use. The Applicant’s case is similar in that it is reasonable risk that hot beverage lids may be or become unsecured and hot liquid may be spilled as a result. The injury was compounded by the Applicant’s inability to exit the vehicle in the drive-through lane.”
As such, Thomposn was found to have been involved in an “accident” as defined in s.3(1) and may proceed to a hearing on the substantive issues.
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