So you are in the drive-through lane at a fast food restaurant and you receive your coffee only to have it spill all over your lap and you suffer severe burns from the scalding coffee!" Now what do you do?" You call your accident benefits insurer and file a claim for accident benefits." Yes, this is an automobile accident! In Dittmann v. Aviva Insurance Co. of Canada,[1] Justice Gordon dismissed a summary judgment motion brought by Aviva Insurance against the Plaintiff to dismiss the claim on the basis that the Plaintiff's loss did not arise from an "accident" as defined in s.3(1) of the Statutory Accident Benefits Schedule." Section 3(1) defines "accident" 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"." Further, in Downer v. Personal Insurance Co.,[2] the Ontario Court of Appeal has determined that the causation test contained in s.3 of the SABS requires the consideration of two questions: (1) Was the use or operation of the vehicle a cause of the injuries? (2) 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?" In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries? In Dittmann, on July 7, 2014, the Plaintiff drove up to the drive-through window at a fast food restaurant, paid for and was handed her coffee." While transferring the cup across her body to the vehicle's cup holder the cup released from the lid and the scalding coffee spilled on her thighs causing injuries." The vehicle was in gear and the Plaintiff had her foot on the brake." She was wearing her seatbelt. Justice Gordon held that but for the use of the vehicle the Plaintiff would not have:" " been in the drive-through lane, received the coffee while in a seated position, been transferring the coffee cup to the cup holder across her body, and had the coffee spill on her lap." Further, the seatbelt restrained her so that she could not take evasive action to avoid or lessen the amount of coffee that was spilled on her." The vehicle was being used to allow the Plaintiff to buy a coffee at a drive-through window at a fast food restaurant." " There was no intervening act and the impairment was a direct result of an accident as defined in the SABS.
[1] Dittmann v. Aviva Insurance Co. of Canada, 2016 ONSC 6429.
[2] Downer v. Personal Insurance Co. 2012 ONCA 302.
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