February 4, 2016

Truck Yeah – Tailgating Injury is an “Accident” under the SABS

Roberts v Intact Insurance Company, (FSCO A14-002957), Arbitrator Musson

 

Daniel MacDonald

Daniel Macdonald

Personal Injury Lawyer

 

Malaya Roberts was catastrophically injured when she jumped from the tailgate of a pick-up truck into a shallow lake. This misadventure left her a quadriplegic. She sought accident benefits from the truck owner’s insurer, Intact Insurance Company (“Intact”), who disputed whether the incident was an automobile accident as defined under the Statutory Accident Benefits Schedule.

An accident is defined under Section 3(1) of the Schedule to mean 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.

To determine if an accident occurred a two part test (Purpose Test & Causation Test) is applied. The Purpose Test asks, “Did the incident arise out of the use or operation of a vehicle in the ordinary and well-known activities to which vehicles are put”? The Causation Test asks, “Was the use or operation of an automobile a cause of the injury”? If the use or operation of a vehicle was a cause of the injuries, then a further question is posed of, “Was there an intervening act or acts that resulted in the injuries that cannot be said to part of the ordinary course of things”?

In applying the Purpose Test, the Arbitrator noted that the ordinary use of a vehicle extends beyond the act of driving and includes additional activities including getting in and out of a vehicle, loading, unloading, etc. It was accepted that “tailgating”, defined as “a social event held on or around the open tailgate of a vehicle” was an ordinary recreational use for a pick-up truck. It was also found that Ms. Roberts was disembarking from the pick-up truck when she was injured, and even though the disembarkation was into water this is not prohibited. The fact that the tailgate was used to disembark was key to ordinary use, with the Arbitrator noting that if she had jumped off the hood of the truck into the lake she would not have passed the purpose test.

In applying the Causation Test, Ms. Roberts’ injuries were found to be a direct result of disembarking into the lake directly from the back of the pick-up truck. Although no one saw how she entered the lake, it was accepted as a reasonable inference that to have sustained her injury she must have jumped from the tailgate of the pick-up truck rather than jumping from the shore. As the last object she touched before hitting the water was the pick-up truck there were no intervening acts.

Ms. Roberts passed the Purpose Test and the Causation Test and was entitled to submit a claim for accident benefits.

Application

This arbitration provides a good opportunity to review the definition of “accident” and the test applied to determine if an incident is an “accident” under the Statutory Accident Benefits Schedule. The tragedy here is that Ms. Roberts who was injured on August 13, 2011, and who likely had few resources to assist her following her injury, had to wait more than 4 years to have the matter denied, mediated, and then go to arbitration, just to know whether she was entitled to make a claim for benefits.

 

If you have questions or comments about this edition of the newsletter, contact Daniel Macdonald at Legate & Associates: d.macdonald@legate.ca