Print

 

 Volume. 8 Issue. 36 – October 23, 2024


This week we review a case that considered whether an improperly secured lid causing hot coffee to spill while in the drive-through lane was a normal incident of risk created by the use or operation of a vehicle or was an intervening act that broke the chain of events causing it not to be an “accident” under the Schedule. The Tribunal broke with previous decisions on this issue.



Virtual Training – Fall Sessions!

Secure your seat for inHEALTH’s 2024 Fall Virtual Training sessions!

  • BI Fundamentals: November 4th – 8th, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



Loose Lid Unexpected ‘Accident”

Loose Lid Intervening Act? – On July 7, 2023 the Applicant Thompson was in the drive-through of a fast-food restaurant and suffered burns when coffee spilled on him as he received the cup due to an improperly secured lid. In Thompson v. Certas (23-013183 v Certas), Thompson sought a determination that he was involved in an “accident” as defined by s.3(1) of the Schedule. Thompson argued he would not have been injured had he been seated at a table instead of in a motor vehicle and relied on Dittmann v. Aviva (Dittman) where the Court of Appeal found an accident had occurred when the insured spilled hot-coffee in a drive-through. He submitted the dominant feature of the incident was his inability to exit the vehicle following the spill because the drive-through lane blocked his ability to open his door and because he was fastened to the seat by his seatbelt.

The parties agreed that the “purpose test” was met, but disputed the “causation test” which asks if the use or operation of an automobile directly caused the impairment. Certas submitted that it was pure speculation that Thompson would not have sustained his injuries had he been seated at a table, and that there was no evidence suggesting his injuries were made worse because the coffee was spilled on him while seated in a vehicle. It submitted if the “but for” test was met, that the improperly secured lid was an intervening act and dominant feature of the incident as found by the Tribunal in Rathbone v. Co-operators (2023 CanLII 58468), Peltier v. Aviva (2023 CanLII 52326), and Miceli v. TD (2024 CanLII 18090).

The Tribunal found that Thomposn’s injuries would not have occurred “but for” the incident involving hot coffee while operating a motor vehicle in the drive-through lane as supported by photographs of his burns and his sworn statements. It found it was not bound by the Tribunal decisions cited by the Respondent finding an improperly secured lid was an intervening event. While all four decisions cited Dittman, here the Tribunal noted that the intervening acts contemplated by the Court of Appeal were those that were “clearly unexpected”. It found that “no unexpected event occurred here that would disrupt the chain of causation. Dittmann found that an accident occurred because an automobile was being used to acquire a hot beverage at a drive-through window of a fast-food restaurant and that the beverage might inadvertently spill is a normal incident of the risk created by that use. The Applicant’s case is similar in that it is reasonable risk that hot beverage lids may be or become unsecured and hot liquid may be spilled as a result. The injury was compounded by the Applicant’s inability to exit the vehicle in the drive-through lane.”

As such, Thomposn was found to have been involved in an “accident” as defined in s.3(1) and may proceed to a hearing on the substantive issues.



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG

September 25, 2024: Credibility Issues Abound with IE Assessor

IE

September 23, 2024: Reliance on Symptom Magnification Test Proves Fatal

MIG

September 16, 2024: Self Reporting Accepted for Psych MIG Escape

MIG

September 9, 2024: Diagnosis Alone Falls Short in Chronic Pain Case

MIG

September 4, 2024: CAT Finding Upheld on Reconsideration

CAT, Reconsiderations

August 28, 2024: Staged MVA Results in $93K Repayment Order

Definition Accident, Evidence

August 26, 2024: What Exactly Constitutes “Compelling” Evidence?

MIG

August 21, 2024: Extreme Impairment Confirmed in CAT Decision

CAT

August 19, 2024: Post Concussive Syndrome Diagnosed in Telephone Interview

MIG

August 14, 2024: Reconsideration Varies Decision Regarding “Accident”

Definition Accident, Divisional Court

August 12, 2024: Adverse Inference Considered in MIG Determination

MIG

August 7, 2024: Re-Training Not A Viable Option - Post 104 IRB Confirmed

IRB

July 31, 2024: Applicants Allowed to Proceed to Hearing Despite Alleged Non – Compliance

Insurer’s Examinations, Procedure

July 29, 2024: No Specific Reference to Evidence Precludes MIG Escape

MIG

July 24, 2024: When is a Spouse Not a “Spouse”?

Death Benefit

July 22, 2024: No Evidence Tendered to Rebut Concussion Diagnosis

MIG

July 17, 2024: 196K Grievance Award Factored into IRB Calculation

IRB

July 15, 2024: Chronic Pain Diagnosis Does Not Warrant MIG Escape

MIG

July 10, 2024: Court Allows Applicant to Submit Judicial Review After the Fact

Divisional Court

July 8, 2024: MIG Escape Despite Unrelated Psych Issues

MIG

July 3, 2024:Application Premature On Benefits Claimed in Excess of Limits

Award, CAT, Jurisdiction

June 26, 2024: Multiple Wilful Misrepresentations Claimed but Only One Established

IRB

June 24, 2024: Chronic Pain Diagnosis 4 Years Later Uncontroverted

MIG

June 19, 2024: Court Sets Aside Tribunal Decision and Makes Decision that Ought to Have Been Made

Definition Accident, Divisional Court

June 17, 2024: Cause of ‘Remote’ Finger Fracture Questioned

MIG

June 10, 2024: Reliability on IE Opinions Challenged

MIG

June 5, 2024: IE 'Highly Intrusive' - Not Acceptable Reason For Failure To Attend

Insurer's Examinations

June 3, 2024: MVA Necessary Cause of Subluxation of Shoulder Joint

MIG

May 29, 2024: Practicing Lawyer Seeks CAT Determination

CAT

May 27, 2024: Differing Opinions on Right Knee Injury Causation

MIG

May 22, 2024: Four Marked Impairments CAT and Post 104 IRB Confirmed

CAT, IRB

May 15, 2024: Court Confirms Three Breaches of Procedural Fairness by Tribunal

Div Court

May 13, 2024: Little Weight Given to Illegible Doctor's Notes

MIG

May 8, 2024: Reasonable Perception of Bias Involving Former Adjudicator Requires Rehearing

Reconsideration

May 6, 2024: Potential Causation Does Not Support MIG Escape

MIG

May 1, 2024: Tribunal Varies Three Decisions on Reconsideration

Reconsideration, Treatment Plans

April 29, 2024: Credibility of Assessment Favored Over Psych Validity Testing

MIG

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG