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In 2021, Mr. Rathbone was stopped at a drive-thru window to pick-up espresso. He was in a position to switch the primary espresso with out situation. Nevertheless, as he was transferring the second, the lid got here off the higher brim, spilling espresso onto his lap. He reacted and dropped the rest of the espresso leading to accidents to his lap and groin.
Mr. Rathbone utilized for accident advantages via his car insurance coverage provider. Along with being submitted late, the Insurer denied the appliance on the idea that he was not concerned in an “accident.”
Part 3(1) of the SABS defines an accident as an incident wherein the use and operation of an car immediately causes damage. It includes a two-prong check: the Objective Take a look at and the Causation Take a look at. The Insurer conceded that the aim check was glad by use of a car in a drive via. Additional, the primary a part of the causation check was glad as a result of ‘however for’ the usage of the car, Mr. Rathbone wouldn’t have been injured.
The difficulty turned on the second and third elements of the causation check. Particularly, consideration of the intervening act and dominant function.
Mr. Rathbone relied on the Ontario Superior Court docket determination in Dittman v. Aviva (2016)[1]. In that case, the applicant was additionally in a drive via when she spilled sizzling espresso on her lap and sustained accidents. The Court docket discovered {that a} beverage inadvertently spilling is just not exterior of the “unusual course of issues” when utilizing a drive via. As such, the applicant’s use of an car was a direct explanation for her accidents. The choice was upheld on enchantment to the Ontario Court docket of Attraction.[2]
Nevertheless, Adjudicator Kaur discovered that Mr. Rathbone’s case was distinguishable from Dittman. At an EUO, Mr. Rathbone repeatedly indicated that the espresso spilt because of the lid being improperly secured. This was not the case in Dittman, the place the espresso spilling was because of the applicant’s actions with out an intervening act. Adjudicator Kaur discovered that the lid being improperly secured on this case was an intervening act that broke the chain of causation. As such, the damage was indirectly brought on by the use or operation of the auto.
Additional, Adjudicator Kaur agreed with the submissions of the Insurer that the car was not the dominant function of the incident. The direct explanation for accidents was the improperly secured espresso lid.
We perceive that the applicant is just not in search of reconsideration on this determination.
This case highlights a number of vital issues. The LAT has embraced the Objective and Causation assessments in figuring out whether or not incidents could be outlined as “accidents” in response to the SABS. This evaluation permits the Tribunal to evaluate a state of affairs via a number of layers of inquiry, together with the totality of info when making their willpower. Nevertheless, as we see from the case legislation, this inquiry can result in uncertainty in how an Adjudicator may determine primarily based on the info earlier than her.
Total, this case reminds us that causation, particularly the intervening act and dominant function, are evolving points on the LAT. The case legislation stays comparatively unsure. Insurers ought to be cautious in bringing “accident”/causation circumstances to hearings absent with the ability to set up a robust basis of info of their favour. Particularly, case legislation emphasizes the significance of acquiring EUOs early on within the declare course of with a view to receive important info from the applicant, to be later relied upon in a listening to if mandatory.
See Rathbone v Co-operators General Insurance Company, 2023 CanLII 58468 (ON LAT)
[1] Dittmann v. Aviva Insurance coverage Firm of Canada, 2016 ONSC 6429.
[2] Dittmann v. Aviva Insurance coverage Firm of Canada, 2017 ONCA 617.
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