Neutral Citation: 2006 ONFSCDRS 194

FSCO A05-002184

BETWEEN:

GARY STEPHENSON

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Jeffrey Rogers

Heard:

September 25, 26, 27 and 28 and October 2, 3, 4 and 5, 2006, in Cornwall, Ontario.

Written submissions were completed on October 30, 2006.

Appearances:

Ms Laurie Tucker and Mr. John Hollander, solicitors for Mr. Stephenson.

Mr. Pasquale Peloso and Ms Katie Gauthier, solicitors for Economical Mutual Insurance Company

The Applicant, Gary Stephenson, claims that he was injured in a motor vehicle accident on July 4, 2004. He applied for statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ Economical refused to pay benefits on the grounds that Mr. Stephenson was not injured as a result of an "accident" as defined in section 2(1) of the Schedule. The parties were unable to resolve their dispute through mediation, and Mr. Stephenson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The preliminary issue is:

Was Mr. Stephenson injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Mr. Stephenson was not injured as a result of an "accident" as defined in section 2(1) of the Schedule.

Background

On July 4, 2004, Mr. Stephenson attended a "stag and doe" party at the hobby farm of his friends Lyle and Aline Dupuis at 16461 Black River Road. It was an outdoor party, thrown for Aline Dupuis' son and her future daughter-in-law. The residence at the property is a fixed trailer. It is located about 35 metres off Black River Road, with access by a gravel driveway, leading to a gravel parking area behind the trailer. The hosts served food and provided music, but they did not serve alcohol. Guests were invited to bring their own.

Mr. Stephenson got there around 2:00 p.m. He pulled his van off the driveway about 20 metres off Black River Road and parked it on the grassy area that stretches from Black River Road to the trailer. He had bought a case of 24 beers on the way. He put them on ice in a cooler in the back of the van. He started drinking around 3:00 p.m and drank throughout the course of the evening. By his record he had about 17 beers.

Aline Dupuis went to bed before the party was over. She woke up at about 5:30 a.m. on July 5th to the sound of Mr. Stephenson yelling for her husband. She went outside and found him lying next to his van with his head resting on the running board. He said he had no feeling in his arms and legs and asked her to call an ambulance.

When the paramedics arrived, they took a history that included Mr. Stephenson's heavy consumption of alcohol and that he had been lying outside all night. They diagnosed mild hypothermia and started treatment for that condition. They left the farm with Mr. Stephenson in the ambulance at around 6:00 a.m and took him to the Cornwall General Hospital where treatment for hypothermia continued. A discharge order was given around 11:40 a.m. The nurse responsible for executing the order realized that Mr. Stephenson was still in distress. Upon further investigation, it was decided to transfer Mr. Stephenson to the Ottawa Civic Hospital where he was found to have suffered a broken neck.

Mr. Stephenson says that he was injured when he fell out of his van as he was trying to get in to spend the night. Economical is not satisfied that the injury had anything to do with his use of the van.

"Accident"

"Accident" is defined as follows in section 2(1) of the Schedule:

an incident in which the use or operation of an automobile directly causes an impairment...

Economical concedes for the purpose of this hearing that on the evening of July 4, 2004, Mr. Stephenson was involved in an incident which caused an impairment. Mr. Stephenson does not claim that he was operating his van when he suffered the impairment. Therefore, the only question for the hearing was whether Mr. Stephenson's impairment was caused directly by the use of his van.

Economical made extensive submissions on whether Mr. Stephenson could be found to be engaged in the use of his van if found to be camping, at the time of his injury. The only theory Mr. Stephenson advanced was that he fell out of his van when he tried to get in to retire for the night. For that reason, I find it unnecessary to address the issue of whether the broader activity of camping encompasses the direct use of an automobile.

To succeed, Mr. Stephenson must show that his injury was directly caused by his engagement in an ordinary and well-known activity to which automobiles are put. His van was a 1993 Ford Aerostar, with a fold-down back seat that could be fashioned into a bed. I accept Mr. Stephenson's evidence that he had turned down the back seat, with the intention of sleeping there, some time before he set out to retire for the night. The reliability of that evidence is reinforced by the actions of the first persons who found Mr. Stephenson lying next to his van. They attempted to put him in the van to sleep off what they assumed to be the effects of excessive drinking. Likely, the reason they tried to put him in the van was that they knew that he intended to sleep there or deduced it from the fact that the seat was folded down.

I find that sleeping in the fold-down back seat is a well-known use of a van. I therefore find that, if Mr. Stephenson was injured when he fell out of his van as he was about to retire for the night, he would have been injured as a result of an "accident" as defined.

Mr. Stephenson's Evidence

No one saw Mr. Stephenson fall out of his van nor how he was injured. The only direct evidence in that regard was his own. Were I to accept Mr. Stephenson's evidence, he would have established that he was injured as a result of an "accident".

As noted above, when Mr. Stephenson arrived at the party, he parked his van on the grassy area beside the driveway. The grass rises slightly uphill away from the driveway, for a distance of about 1.8 metres. The van was parked partly on this slope, facing away from the driveway. It has two front doors, a side door that opens by sliding towards the back, and a tailgate. Mr. Stephenson put the cooler with his beer behind the seats. He could get at them through the tailgate. He started drinking around 3:00 p.m. and kept going back to the van throughout the course of the party, taking 3 or 4 beers at a time. His wife found 2 beers in the cooler when she later retrieved the van. He says that he gave 2 to his sister and 2 to someone else he met at the party. That leaves one beer unaccounted for and is consistent with Mr. Stephenson's evidence that he consumed about 17 beers. There is no evidence that he got alcohol from anyone else at the party.

When she invited him, Aline Dupuis told him that anyone who was drinking was welcome to stay over, or she would drive them home. Mr. Stephenson testified that around 8:00 p.m., realizing that he had had too much to drink, he prepared the back seat of the van for spending the night. He also took the precaution of giving his nephew the keys. He had been convicted of driving under the influence in 1997 or 1998 and he had lost his licence for 2 years. That had changed his attitude towards drinking and driving.

His evidence was that, some time after midnight, after he had been sitting alone at a picnic table, he decided to retire for the night. He did not see anyone else up. He walked from the picnic table, across the gravel parking area, along the side of the trailer, between the wishing well at the front of the trailer and a tree, between the tree and flower bed, and down to the van. He used his right hand to open the side door and slid it back. He put his left foot on the running board, then his right foot on the running board. He put his right hand on the back of the front seat and his left hand on the door handle to pull himself up. He put his left foot on the bed of the van. He lifted his right foot onto the bed of the van and started to lose his balance. He grabbed the door to steady himself but it started to slide shut and he let go. He started to turn sideways and fell out of the van, striking the back of his head squarely on the running board. He ended up with his head towards the rear tire and his feet towards the front door.

He tried to get up but he could not. He laid there for a while, turned himself over and then started to crawl. He then "went out". He does not recall how far he crawled or for how long he was out. When he came to, he started to yell for help. He felt pain in the back of his head and down his left side. He remembers Rebecca Coffin, Lyle Dupuis' stepdaughter, being the first to come to his assistance. She called for her boyfriend, and a group of people gathered and tried to get him in the van, but they could not. He remembers perhaps it was Aline Dupuis who decided to call an ambulance. He was confident that he knew immediately what had happened to him, recalled it precisely and never told anyone anything else.

I find Mr. Stephenson's evidence to be unreliable and do not accept it for several reasons. First, I doubt that anyone has the capacity to recall with anything close to the detail that Mr. Stephenson recounted, what would have been at the time an innocuous approach and entry to his van. Without for the moment addressing the precise effect of the alcohol Mr. Stephenson had consumed, I find that the fact that he had consumed about 17 beers in less than 12 hours before the events would have decreased the likelihood of perfect recall.

The likelihood of a precise memory is further decreased by the fact that he does not have a clear recall of other events of that evening. Mrs. Stephenson came to the party separately. She was working from 11:00 p.m. that night, so she arrived early and left early to get some rest before work. She testified that she left around 5:00 p.m., around the time they were starting the barbecue. She testified that when she left, her husband was fine. She provided a cogent reason for leaving and a clear reference point for the time she left and I accept her evidence. But Mr. Stephenson remembers telling her of his decision to sleep in the van at around 8:00 p.m. and that she left at around 9:30 p.m.

In addition, Mr. Stephenson could not recall that there were a number of other guests who were still up when he decided to retire. Erin Denneny, Mrs. Dupuis' son-in-law, admitted that he does not have a clear recall of everything that occurred that evening, but that does not mean that he does not clearly recall some things. His evidence was rich in context and I accept it. He testified that Mr. Stephenson was part of a group that was behind the trailer, before heading to the outhouse and then going off towards his van.

Rebecca Coffin's evidence confirms that Mr. Stephenson was not the only one up and is also not consistent with another aspect of Mr. Stephenson's evidence. She testified that she found Mr. Stephenson on the ground about 2 or 3 a.m.. After her group was unsuccessful in getting him in the van, they gave up and she went to bed. Mr. Stephenson must have been lying outside for at least 2 hours before Aline Dupuis heard him calling her husband. But Mr. Stephenson's evidence showed no recall of lying outside for an extended period before Aline Dupuis arrived and called the ambulance. He recalled calling for help only once, after which Rebecca arrived and then Aline, who decided to call an ambulance.

The second reason for rejecting Mr. Stephenson's evidence is that I find it unlikely that he could have fallen out of the van and hit the back of his head on the running board as he described. The running board protrudes only 4 to 5 centimetres beyond the widest point of the door. If Mr. Stephenson was standing in the van as he claimed, he would be bent over. As he started to lose his balance, his rear end would be the first thing to exit. He said that he grabbed the door handle and that started him turning. But to hit the back of his head on the running board, he would have to turn so that he fell at least parallel to the van. More likely, for his shoulder not to have hit the van first, he would have to fall so that his torso was almost perpendicular to the van.

My third reason for rejecting Mr. Stephenson's evidence is that he has not been consistent in his recount of the event. That inconsistency is coupled with a curious failure to inform the first people who could have offered assistance. If he was injured as he described and he knew it, he would have told Rebecca Coffin and the group that tried to get him in the van. He did not.

Apparently, the first person to hear what Mr. Stephenson thought had happened was Aline Dupuis. Her evidence was that he told her he thought he was having a stroke. I accept her evidence. This would have been for her a unique and startling event, she has no interest in the matter and her recall was clear. This recount of the events by Mr. Stephenson is inconsistent both with his evidence on how he was injured and that he knew immediately how it had happened.

The paramedics, Lee Montford and Sophie Tasse, testified that they would have tried to obtain a history of what had happened from both Mr. Stephenson and the other people at the scene. That history would be an important factor in deciding their course of action. Had he told them that he fell out of his van, they would have noted it. I accept their evidence. Nevertheless, although Mr. Stephenson recalled speaking to the paramedics, their records contain no reference to the critical information that he had fallen out of his van.

Dr. Jacqueline Van Hees assessed Mr. Stephenson when he arrived at the Cornwall General Hospital. She had been told that he had been found outside. She noted that he was shivering and found his core temperature to be 2 degrees below normal. She therefore continued his treatment for hypothermia. Her notes indicate that Mr. Stephenson stated that he went outside to sleep in his van but "passed out". Her evidence was that, if he had said he had fallen from his van, she would have noted that. It would have been very important and would have changed the picture from what appeared to be symptoms of overexposure and excessive alcohol consumption, to a possible traumatic injury. A different course of action would have followed. I accept her evidence.

Dr. Van Hees suspected neck injury when Nurse Renwick noted continuing distress after being given the discharge order. She therefore asked Dr. Suranyi, a neurologist, to examine Mr. Stephenson. He testified that he asked Mr. Stephenson repeatedly whether he had hit his head and got a negative answer. As a neurologist, that information would have been particularly important in determining his course of action. Dr. Suranyi diagnosed a spinal cord injury, but had he known of a blow to the head, he would have sent Mr. Stephenson for a CAT scan before ordering his transfer to the Ottawa Civic Hospital. I accept his evidence in this regard.

Further inconsistencies appear in the records of the Ottawa Civic Hospital, including a note from Dr. Eugene Wai, to the effect that Mr. Stephenson could not recall the events leading up to his injury. Dr. Wai testified that he would have asked Mr. Stephenson what had happened. In addition, when Economical interviewed Mr. Stephenson on August 17, 2004, he said he must have bumped his head on the "corner panel" of the van, not the running board.

Even if Mr. Stephenson did tell his wife that he had fallen out of the van, as they testified, and he did tell some care providers that he had fallen from his van, as the records indicate, there still remains no explanation for his not telling the first persons who needed to know and whose knowledge of what had happened would have served his best interests. I find that the most likely explanation for Mr. Stephenson's divergent reports is that he did not know what had happened. That would explain why he at first reported no incident that caused his injury and was also inconsistent on the mechanism of his injury, when he did report an incident.

Finally, I reject Mr. Stephenson's evidence because, had he suffered a sharp blow to the head, against a hard object, there would have been swelling or a laceration or both. The paramedics, Dr. Van Hees and Dr. Suryani all checked and found none and Mr. Stephenson reported none.

Expert Evidence

Mr. Stephenson called expert evidence to establish that his injury was likely the result of a forceful blow to the head and that a forceful blow to the head will more likely occur when one falls from a height. Peter Williamson, a forensic engineer, testified on the mechanics of falling. Dr. Dean Ducas, Mr. Stephenson's family doctor, testified principally about Mr. Stephenson's pre-accident medical history. Dr. Eugene Wai, the orthopaedic surgeon who operated on Mr. Stephenson at the Ottawa Civic Hospital, gave his opinion on the likely cause of the injury.

Economical's theory was that the injury was more likely caused by prolonged, extreme neck posturing as Mr. Stephenson lay intoxicated. Its expert witnesses were Joseph McCarthy, a mechanical engineer specializing in bio-mechanics, Dr. Gavin Shanks, who specializes in physical medicine and rehabilitation and Dr. Sam Kacew, an expert in toxicology and pharmacology.

Before assessing the expert evidence, let me flesh out the factual background against which it must be viewed. I find that the first person to come upon Mr. Stephenson was Erin Denneny. He recalled seeing Mr. Stephenson come down the stairs from the outhouse, stagger south a bit, correct himself, and head north towards his van. A minute or so later, it occurred to him that Mr. Stephenson might be intending to drive, so he excused himself from the group he was with and followed Mr. Stephenson. He found Mr. Stephenson lying next to the van, on the side with the sliding door, with the door locked. He shook Mr. Stephenson by the shoulder and asked if he could get up. Mr. Stephenson just mumbled. Mr. Denneny assumed that Mr. Stephenson had passed out from too much to drink. He left him lying on the grass, and went to bed shortly after.

Next came Rebecca Coffin and her group in answer to Mr. Stephenson's first calls for help. Although Ms Coffin also claimed to be the first to find Mr. Stephenson, that is not inconsistent with Mr. Denneny's evidence. He said that he might have told Ms Coffin's group that Mr. Stephenson was passed out on the grass, before he headed off to bed. He was not sure.

Perhaps he did not. Or if he did, Ms Coffin did not hear him or does not remember. I accept that Ms Coffin reasonably believed that she was the first one there, although she was not.

Ms Coffin's group found Mr. Stephenson where Mr. Denneny had left him. By that time, Mr. Stephenson was revived enough to have called for help. They too believed that his condition was caused by too much drink. Ms Coffin described him as coherent, but he was unable to aid their efforts to get him in the van. They hoisted him to the point where his torso was in the van, but he is a heavy man and they could get him no further. She headed off to bed and left the others still trying to put him in the van. She thought that her husband remained with Mr. Stephenson throughout the night, but there was no evidence that her husband was there when Aline Dupuis found him lying with his head propped up on the running board. The remnants of Ms Coffin's group must have left him there.

Mr. Denneny's and Ms Coffin's evidence establishes that, if Mr. Stephenson fell, he either fell out of his van, or right next to it. Their evidence also clearly establishes that Mr. Stephenson was showing marked effects of intoxication for some time before he headed for his van. Mr. Denneny had seen him staggering and had heard him slurring his words. Although he conceded that Mr. Stephenson always had a slight slur, I am satisfied that Mr. Denneny would not have noted that he was slurring, if he heard Mr. Stephenson's normal pattern of speech. Ms. Coffin said he was teetering.

Their evidence is confirmed by Mr. Stephenson's own evidence that he stumbled on the way to his van and the fact that his blood alcohol level when he arrived at the Cornwall General Hospital was 38.8 millimoles per litre. Although I heard no evidence on the level of consumption that would produce that reading, there is no doubt that Mr. Stephenson's blood alcohol level was grossly above the acceptable range of zero to 2.2 millimoles per litre, several hours after he had stopped drinking.

Mr. Stephenson is diabetic. Knowing that there was risk involved in taking his medication and consuming alcohol, he did not take his medication on the day of the party. It is not clear exactly when he last took his medication. One of his medications had a half-life of 10 hours and another had a half-life of 18 hours. At the half-life of a medication, half of the drug is still present in the patient's system. Therefore, despite his precaution, it is likely that Mr. Stephenson maintained some level of medication in his blood, when he started drinking.

Mr. Stephenson suffered an acute disc herniation at the C3-4 level. The fibrous lining of the disk, separating the third and fourth vertebrae below the base of his skull, ruptured, allowing the gel within the disc to extrude towards the back. The experts agree that the injury could have been caused by a blow to the head. They agree that a fall from height increases the likelihood of injury, because of the increased force of impact. They also agree the likelihood of a blow to the head is increased when falling from a height, because of the increased tendency to fall head down.

Peter Williamson opined that a fall from the van would have increased the risk of injury. His opinion was that the possibility of involvement of the van could not be ruled out or considered unlikely. I find that Mr. Williamson's opinion does not adequately consider the fact that the door was closed when Mr. Stephenson was found. Both Erin Denneny and Rebecca Coffin confirmed that, when they found him, the door was closed. Mr. Stephenson said that, after he grabbed the door to steady himself and it started to move, he fell out of the van and the door closed from the momentum created when he grabbed it. For that to happen, Mr. Stephenson's legs would have had to clear the doorway or they would stop the door from closing. If he was falling back as he described, his legs would be the last part of his body to exit. This is consistent with the illustration in Mr. Williamson's report, in which the feet remain fixed while the body falls. In addition, because the back of the van was downhill from the front, the door would have tended to slide downhill and stay open, rather than slide shut uphill, as Mr. Stephenson claimed.

If Mr. Stephenson were not standing on the higher bed of the van as he claimed, but on the running board or the lower step, it is more likely that the door could have closed behind him. But that also decreases the likelihood of injury and of a blow to the head.

Dr. Shanks opined that, because there was no evidence of trauma to Mr. Stephenson's head, face or upper body, a fall from his van was unlikely. In his opinion, it was more likely that Mr. Stephenson had a pre-existing substantial disc herniation which was aggravated by a prolonged position of neck flexion or extension as a result of his intoxicated status. He found evidence of pre-existing neurological problems in the neck, from pre-accident reports in Dr. Ducas' records of weakness and numbness in the arms and the legs.

Dr. Ducas and Dr. Wai did not accept Dr. Shank's opinion that Mr. Stephenson's pre-accident complaints were evidence pre-existing neurological problems in the neck. However, Dr. Ducas did not rule out pre-existing disc herniation. He agreed that 7% of patients without neck complaints actually have a herniated disc in the neck. Dr. Wai opined that the injury was more likely a combination of a degenerative process and a traumatic process but he accepted that Dr. Shanks' scenario was possible, although less likely. Although he did not agree that there were pre-existing symptoms of neurological problems in the neck, Dr. Wai did confirm that Mr. Stephenson suffered degenerative disc disease, normal in his opinion for 40 year old man, as Mr. Stephenson was at the time of his injury. Dr. Wai gave his opinion that Dr. Shanks' scenario was possible, but less likely, knowing precisely the extent of degeneration he found, when he operated on Mr. Stephenson.

Mr. Stephenson was apparently unable to move when Mr. Denneny found him and had little ability to move when Ms Coffin found him. Therefore, for Dr. Shank's opinion to be plausible, Mr. Stephenson's condition when Mr. Denneny and Ms Coffin found him, must have been caused by his consumption of alcohol and not his neck injury. The injury would have happened later.

Because he had no precise data on how much Mr. Stephenson had to drink, the period over which he consumed it, his body weight and how much he had to eat, Dr. Kacew could not give a definitive opinion on his level of intoxication, based on consumption. He did not have the results of the blood test, done at the Cornwall General Hospital. Based on the reported symptoms, he opined that Mr. Stephenson was in a state of moderate intoxication, the symptoms of which are slurred speech, decreased motor skills, decreased attention, double vision, muscular incoordination, altered perception and altered equilibrium. These symptoms could result in falling, stumbling and passing out. Dr. Kacew's opinion on the symptoms of alcohol consumption was unchallenged, and I accept it.

His opinion of Mr. Stephenson's level of intoxication is confirmed by Mr. Denneny's report of staggering, slurred speech and loss of equilibrium on the outhouse stairs, and Ms Coffin's report of teetering. It is also confirmed by the willingness of Mr. Denneny and Ms Coffin's group to accept that Mr. Stephenson was simply exhibiting the effects of drinking too much. I therefore accept Dr. Kacew's opinion on Mr. Stephenson's level of intoxication. I find that the condition in which Mr. Denneny and Ms Coffin found Mr. Stephenson is explained by moderate alcohol intoxication, even if one does not take into account the compounding factor of Mr. Stephenson's diabetes.

Dr. Kacew went further in his opinion. He suggested that, because Mr. Stephenson is diabetic, the combination of heat, alcohol and the residual effects of his medication, could have contributed to "insulin shock" resulting in loss of consciousness. "Insulin shock" describes a condition where the level of glucose in the blood is too low for the proper function of the brain. The combination of the medication with alcohol tends to starve the blood of glucose. Mr. Stephenson admitted that July 4, 2004 was a particularly hot day. Heat causes unpredictable fluctuations in the blood glucose levels of diabetics. I do not accept the submission that the factor of heat should be ignored because the evening was cool. It was exceptionally warm when Mr. Stephenson started drinking and his level of intoxication resulted from the rate at which his liver was able to process the drug throughout his period of consumption.

Dr. Kacew testified that, unlike other organs, the brain does not produce glucose. It relies entirely on the blood supply. When the brain is starved of glucose, it shuts down the muscles to maximize the supply to the brain. When loss of consciousness is caused by lack of glucose to the brain, an individual who suffers "insulin shock" is unable to recall what happened immediately prior to loss of consciousness. Dr. Kacew's theory is not inconsistent with the fact that Mr. Stephenson's blood glucose level was normal when the paramedics tested it. He explained that Mr. Stephenson's resting state in the hours before he was found would have allowed him to replenish his supply of glucose by taking it from muscles and fat. That explanation is reasonable and unchallenged and I accept it. I accept Dr. Kacew's opinion that Mr. Stephenson's level of intoxication was likely compounded by the fact that he is diabetic.

Dr. Kacew's theory is consistent with the limited response that Mr. Denneny got when he tried to rouse Mr. Stephenson and Mr. Stephenson's inability to recall what had happened to him. Mr. Stephenson may not have been totally unconscious, but he was close to it. If Mr. Stephenson's mumbled response when Mr. Denneny found him very shortly after he set out for his van did not result from drinking, the only other explanation is a severe blow to the head. The blow would have to have been forceful enough to render Mr. Stephenson unconscious for the time between Mr. Denneny's and Ms Coffin's arrival and the time between her departure and Mrs. Dupuis' arrival. Because there is no physical evidence to support a blow to the head, no immediate report of a blow to the head and limited opportunity to fall from his van and close the door behind him and another plausible explanation for his condition, I find that Mr. Stephenson's condition when Mr. Denneny and Ms Coffin found him, was caused by intoxication and not a blow to the head.

Since I have found that Mr. Stephenson had not suffered a blow to the head but was incapacitated by alcohol when found lying next to his van, I accept Dr. Shank's opinion that, the explanation for Mr. Stephenson's injury is likely found in the "prolonged extreme neck posturing as he lay intoxicated" in the doorway of his van. I find that Mr. Stephenson has not proven that he fell out of his van as claimed. I therefore find that Mr. Stephenson was not injured as a result of an "accident" as defined in section 2(1) of the Schedule.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

December 13, 2006

Jeffrey Rogers Arbitrator

Date