Tribunal File Number: 18-012641/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
M. P.
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Thérèse Reilly
APPEARANCES:
For the Applicant:
Zenan Babb, Paralegal
For the Respondent:
Gurpreet Farmaha, Counsel
HEARD: In Writing:
November 8, 2019
OVERVIEW
1The applicant claims she was involved in an automobile accident on March 17, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The respondent denies the incident was an accident because it does not meet the definition of an "accident" based on an intervening act, being scalded by a hot liquid from a fast food restaurant. The applicant had obtained a cup of hot tea from a drive-through window of a fast food restaurant. The employee of the fast food restaurant had not placed the lid securely on the cup. The applicant drove away, stopped at a red light, and noticed the lid was not on the cup securely. When the applicant moved the cup and tried to secure the lid, the tea spilled on her. The respondent submits the employee's negligence and the applicant's attempt to secure the lid is what caused the tea to spill on her and there are independent intervening acts that caused her injuries, not the use or operation of a motor vehicle. The use or operation of the automobile was not the “dominant feature” of the incident.
3The applicant submits that she was at the drive-through window and purchased a green tea, which spilled on her while she was operating her vehicle. She maintains there was no intervening act. The applicant wanted to put the tea from the tray to her cupholder when the tea spilled on her. She submits that having a beverage in your vehicle, using your cupholder in your vehicle, is part of the ordinary course of using your vehicle.
4The preliminary issue hearing proceeded by written submissions.
ISSUE
5The preliminary issue is whether the applicant’s impairment was caused by an “accident” as defined in section 3(1) of the Schedule?
RESULT
6The applicant’s impairment was not caused by an “accident” as defined in section 3(1) of the Schedule.
ARGUMENTS
7The parties’ arguments are based on the applicant’s evidence given at an examination under oath (EUO) on December 4, 20171 on March 17, 2017, the applicant attended at a drive-through of a fast food restaurant and ordered a cup of hot green tea. The beverage was handed to her in a tray. She placed the tray on her passenger seat and drove off until she came to a red traffic light when she came to a stop. At that time, she noticed the lid was not properly on the cup of hot tea. She stated that she lifted the cup out of the tray, placed it in front of her2 in order to secure the lid before placing it in the cupholder. She held the cup with her left hand and tried to secure the lid by pressing down on it with her right hand. The tea then spilled on her, causing her injury.
8The respondent submits the drive-through employee was negligent in not placing the lid properly on the cup of hot tea.3 This act of negligence and the attempt by the applicant to secure the lid are “intervening acts” that caused her injuries. But for the act of the employee, the applicant would not have attempted to secure the lid and spill the tea. It is these intervening acts and not driving the motor vehicle that caused the injuries.
9The applicant submits there were no intervening acts that caused her injuries, and that having a beverage in your vehicle and using your cupholder in your vehicle is an “ordinary course of using your vehicle.” She submits that the facts in this case are similar and not distinguishable from those in Dittmann v. Aviva Insurance Company.4
10In Dittmann, the plaintiff spilled hot coffee on her lap while transferring it from a drive-through window into her vehicle cupholder. Her car was in gear at the time but not moving. She was wearing her seatbelt and could not take evasive action to avoid the hot coffee. The plaintiff applied for accident benefits. Her insurer argued she was not involved in an “accident” within the meaning of s. 3(1) of the Schedule. A motion was brought for a summary judgment. The Court agreed with the plaintiff. But for the plaintiff’s use of her car, she would not have been using the drive-through and but for the seat belt she would have been able to avoid the hot coffee. Justice R.D. Gordon stated at paragraph 13:
I am content that but for the use of the vehicle the plaintiff’s injuries would not have occurred. I come to this conclusion because but for her use of the vehicle she would not have been in the drive-through lane, would not have received the coffee while in a seated position, would not have been transferring the coffee cup to the cup holder across her body, and would not have had the coffee spill on her lap. In addition, but for her being seated and restrained by a lap and shoulder harness she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.
11Justice Gordon found no intervening act. The plaintiff’s injuries were part of the “ordinary course of things.” Beverages spill in the ordinary course of things. The decision of the lower court was upheld on appeal. In its analysis, the Court of Appeal stated the focus is not what was the triggering event of the incident was, but rather, what caused the problem. In that case, the use of a vehicle with the engine running and in gear to access the drive-through, and the seatbelt restraint, were direct causes and dominant features of the injuries suffered by the plaintiff. The Court of Appeal dismissed the insurer’s appeal.
12The respondent also points to the letter of April 11, 20175, wherein the applicant’s legal representative stated to the fast food restaurant, “My preliminary investigation reveals that my client's injuries were occasioned wholly and solely as a result of your negligence in failing to properly train your staff. The lid of the green tea was not properly secured, causing it to spill onto our client as she was driving." The respondent refers to this for further support of its position that the injuries were as a result of the employee’s negligence. The respondent also refers to a Statement of Claim6 filed by the applicant arising from this incident in which she claims the employee was negligent in not securing the lid properly on the cup. The applicant made no submissions about this letter or the Statement of Claim in its written submissions.
ANALYSIS AND DECISION
13Based on the EUO evidence, the incident and how the tea spilled is not as simple as explained by the applicant in her submissions. In her submissions, the applicant states she wanted to move the tea from the tray to her cupholder when the tea spilled on her.7
14I accept the facts given by the applicant in her EUO that she had left the drive-through, had come to a stop at a red light, noticed the lid was not properly on the cup, moved the cup out of the tray so it was in front of her, held it in her left hand and in attempting to secure the lid with her right hand, the tea spilled all over her. She acknowledged moving the cup out of the tray and had it in front of her when she was trying to secure the lid.
15The facts of the Dittmann decision mentions neither the lid being improperly secured to the cup, nor that a restaurant employee was negligent in the securing of the lid. Accordingly, I take that to mean these were not an issue in the Dittman case. In this appeal, the employee at the fast food restaurant did not place the lid securely on the cup, which I find is a cause of the problem as stated by the Court of Appeal. I also find the applicant did not have to move the cup in her attempt to secure the lid. On noticing the lid was not secure she could have chosen to leave the cup where it was and then try to secure the lid. It is out of the ordinary and I find not necessary to have lifted the cup out of the tray and then place it in front of her and then attempt to secure the lid. She could have simply left the cup where it was and then tried to secure the lid.
16I find the employee in not securing the lid properly and the applicant’s choice to move the cup before securing the lid and her trying to secure the lid are intervening acts that caused the injuries and broke the causation link.
17The applicable legal test to determine if there is an “accident” is as follows:8
i. Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?
The respondent concedes that the applicant was operating her vehicle in way in which it would ordinarily be used.
ii. Direct Causation Test: Was the use or operation of the vehicle a direct cause of the injuries?
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things". An intervening act will absolve an insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the vehicle.9
18I agree with the respondent that it was the drive-through employee and the applicant’s actions in securing lid, and the spilling of the tea, which were the dominant features of her injuries. Nothing about the vehicle caused her to spill the tea. The fact that she was in a vehicle was simply incidental. It was the securing of an improperly placed lid, and the spilling of the hot beverage in an attempt to secure the lid that was the sole cause of her injuries.
19As stated by the Court of Appeal in Greenhalgh,9 it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury. In this case the use or operation of the vehicle was not the direct cause of the injuries.
20The Supreme Court of Canada in Vytlingam10 stated, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. …if the vehicle’s involvement is held to be no more than incidental or fortuitous or “but for” and is ruled severable from the real cause of the loss, then the necessary causal link is not established.”
21The action of the drive-through employee in not securing the lid properly and the applicant’s subsequent attempt to secure the lid are intervening acts that broke the chain of causation.
22Further, the applicant in her notice letter to the restaurant acknowledged that the injury was caused solely as a “result of the restaurant’s negligence in not properly training their staff. The lid of the green tea was not properly secured, causing it to spill onto our client as she was driving." The act of the employee in not securing the lid properly and the applicant’s subsequent attempt to secure the lid are intervening acts causing the tea to spill onto the applicant. This provides additional support that the incident was not the “dominant feature” of the incident on these facts. The dominant feature was the improperly placed lid and the applicant’s attempt to secure the same, which caused her injuries.
CONCLUSION
23In conclusion, I find the applicant’s impairment was not caused by an accident within the meaning of section 3(1) of the Schedule.
Released: April 7, 2020
___________________________
Thérèse Reilly
Adjudicator
Footnotes
- Respondent Book of Exhibits, Transcript of Examination under Oath.
- Respondent Book of Exhibits, Transcript of Examination under Oath, paragraphs 36 to 46, written submissions of the respondent, paragraph 9.
- Reply submissions of the respondent, paragraph 4.
- Dittmann v Aviva Insurance Company 2016 ONSC 6429, aff’d 2017 ONCA 617, leave to appeal to SCC dismissed 2018 CanLII 12956, Respondent Book of Exhibits, tab 8.
- Written submissions of the respondent, paragraph 9 and tab 2.
- Written submissions of the respondent, paragraph 10 and tab 3.
- Written submissions of the applicant, paragraph 3.
- Chisholm v Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (C.A.)
- Greenhalgh v ING Halifax Insurance Co., (2004) 2004 CanLII 21045 (ON CA), 72 OR (3d) 338 (ON CA); Downer v. The Personal Insurance Company, 2012 ONCA 302 and Martin v. 2064324 Ontario Inc. c.o.b. Freeze Night Club, 2013 ONCA 19
- Citadel General Assurance Co. v. Vytlingam 2007 SCC 46, [2007] 3 SCR 373