In a recent Ontario decision, Charbonneau v. Intact Insurance Company, 2018 ONSC 5660, the insured made a claim for statutory accident benefits. The insurer denied the claim on the basis that the way in which the insured was injured was not an "accident" under the policy of insurance. The insured had been standing on the rear bumper of a vehicle and fell and hit her head on the concrete after the driver made a sharp turn. The parties referred to this misadventure as "car surfing", which also includes activities involving riding on a bumper or side bar of a car, grabbing a moving vehicle while on in-line skates, a bicycle, a skateboard, a sled, or a toboggan.
At the tribunal level, the adjudicator held that the insured was involved in an "accident" under s. 3(1) of the Statutory Accident Benefits Schedule. The insurer appealed the decision. The appeal was dismissed.
The court held that the adjudicator correctly applied a two-part test to determine whether a person is in an "accident" for the purpose of receiving statutory accident benefits. The test has two branches: (1) a causation test, and (2) a purpose test. There was no dispute between the parties that the causation test had been satisfied. The dispute between the parties involved the purpose branch of the test.
The court noted that the purpose test is designed to exclude a person from receiving accident benefits where a vehicle is being used for abnormal and aberrant purposes disassociated from normal purposes of a vehicle, which are to transport people and things. Examples of abnormal and aberrant uses of a vehicle cited by the court included using a vehicle for a diving board or as a permanent prop to support a building.
The insurer submitted that the purpose test is designed to ensure that no fault benefits are confined or restricted to accidents or to motorists and others who are making an ordinary and well-known use of vehicle. Unfortunately for the insurer, the adjudicator had material before her that car surfing was a commonplace enough activity that the legislature has thought fit to criminalize it as an offense.
The court held that in this case, car surfing or attaching oneself to a vehicle, while reckless and dangerous, is not a more abnormal use of a vehicle than the other reckless and dangerous uses of a vehicle such as texting while driving. While reckless and foolish, the insured was using the vehicle for its normal purpose of transportation and the adjudicator was correct in finding that the purpose test had been satisfied. The insured was entitled to statutory accident benefits.
In B.C., the Insurance (Vehicle) Act similarly defines "accident" as an accident arising out of the use and operation of a vehicle. Accidents that result from car surfing and other seemingly reckless acts are likely considered as arising out of the use and operation of a vehicle under the Act. The Charbonneau decision is a reminder that insureds are entitled to statutory accident benefits even where their behavior is deemed reckless and foolish.
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