Car Surfing Incident is an Accident - IC v Intact Insurance Company, LAT 16-003163

December 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

IC v Intact Insurance Company, LAT 16-003163 2017 CanLII 69443 (ON LAT)

Decision Date: October 19, 2017
Heard Before: Adjudicator Nicole Treksler

WAS IT AN ACCIDENT: incident meets two part test in Amos; purpose and causation tests met; car surfing is an accident pursuant to the SABs

On July 14, 2014 IC, the applicant, along with some friends, decided to go “car surfing”.  The applicant was standing on the rear bumper of the vehicle holding onto its roof rack with one hand and another friend with her other.  Another friend in the front passenger seat was sitting in the open window with “half of his body inside and half of his body outside”, recording the activity with his cell phone. The driver of the vehicle took a sharp turn and the applicant fell off.  According to the applicant, she suffered severe injuries, including a significant head injury. 

The applicant applied for SABs benefits to Intact who denied her application. When mediation failed the applicant applied to the LAT for arbitration.

The onus is on the applicant based on a balance of probabilities to show that she was involved in an accident as defined by the Schedule.

Issue:

1. Was the applicant in an accident as defined in section 3 (1) of the Schedule?

Result:

1. The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule, when she was car surfing with some friends.

The Adjudicator reviewed the law and the evidence.   In order to qualify for benefits under the Schedule, a person must be an insured person under an automobile policy, and involved in an “accident”. The Schedule is clear in its definition that

“An incident in which the use or operation of an automobile directly causes an impairment…”

The parties agree that the two-part test to determine whether the applicant was in an accident is set out by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia:

• The purpose test (Did the accident result from the ordinary and well-known activities to which automobiles are put?)
• The causation test

The Adjudicator noted that case law has since evolved and the causation test has been narrowed.

In Amos, a direct or proximate causal relationship was not necessarily required between the plaintiff’s injuries and the ownership or use of operation of a vehicle.  However, Section 3(1) requires a direct cause between the insured’s injury and the use and/or operation of a vehicle.

On reviewing the evidence in this light the Adjudicator found that the applicant has met both parts of the test, as first established in Amos and narrowed in the case law following the Amos decision.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.