In Roberts v. Intact Insurance Company (FSCO
A14-002957), Arbitrator Musson found that Intact was responsible
for the payment of accident benefits to a young woman who had
injured herself while diving into a shallow lake, with a
considerable amount of alcohol in her system, from the tailgate of
a stationary pick up truck, sometime after 2 a.m.
The facts of the case were submitted by way of an agreed
statement of facts. Essentially, the claimant and her friends were
out for a night of drinking and socializing. After
patronizing a bar in Manitouwadge, Ontario, they drove out to Sand
Lake. The truck was parked, with its engine off and music
blaring from its stereo. The truck bed was hanging out over the
shore. The tailgate was put down and the group were jumping
from the tailgate into the lake. Nobody actually witnessed
the claimant jump from the tailgate into the water but she was last
seen standing up in the bed of the truck before next being seen
floating face down in the water.
She was transported to Manitouwadge hospital where she was
diagnosed with complete (ASIA A) cervical spinal cord injury C5-C6,
secondary to traumatic C5-C6 fracture-dislocation, rendering her
quadriplegic. An application for accident benefits was
submitted to the pick up truck's insurer, Intact.
At the arbitration hearing, Intact denied that the claimant was
involved in an "accident" as defined in the SABS, which
is "an incident in which the use or operation of a motor
vehicle directly causes an impairment ..." Specifically,
Intact took issue with the claimant's submission that the
incident arose from an activity involving the ordinary use to which
automobiles are put. Arbitrator Musson disagreed and found
that the claimant was injured while as a result of
"disembarking" the truck and it mattered not that she was
diving off the tailgate into a shallow lake, versus say stepping
down from the tailgate onto asphalt or grass. It was further
found that had the claimant been jumping from the hood of the truck
and not the truck bed/tailgate, this activity may not have passed
the purpose test because the hood of a truck is not designed for
As to causation, it was held that the claimant's injuries
were a direct result of her disembarking into the lake. There
was no intervening event to absolve Intact from liability.
Taking into consideration a "but for" analysis,
Arbitrator Musson found that "but for" parking the truck
at the lake's edge, the claimant would not have been injured or
"but for" disembarking the tailgate she would not have
been injured. Finally, as the last object on which the
claimant was observed before the incident, it was a dominant
feature in the claimant's injuries.
Both the 1996 and 2010 legislative changes were meant to bring
about a tightening of the definition of an accident by requiring a
direct link between the use and operation of an automobile and the
injuries sustained. However, what constitutes "ordinary
use to which automobiles are put" continues to be expanded by
recent court and arbitration decisions. In this case for
example, Arbitrator Musson states that using trucks for
"tailgating" purposes is an ordinary and regular use as
evidenced by the fact that manufactures are putting cupholders into
the beds of trucks for this very purpose (presumably, this is also
why stripper poles are installed in party buses). Potentially
"tailgating" in its ordinary sense of a social gathering
on or around the open tailgate of a truck could be a regular and
well known activity to which tailgates are put. The motoring and
premium paying public may be surprised to find that using a truck
bed as a diving platform, in the middle of the night, after having
consumed a significant amount of alcohol, to dive into a relatively
dark and shallow lake is also a regular and ordinary use.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).