Judge Rules Hood of Car Falling on Driver Filling Washer Fluid is Accident - Davis

February 05, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Davis v. Aviva Canada Inc., 2017 ONSC 6173 (CanLII)

Decision Date: October 16, 2017
Heard Before:  C.T Hackland J.

WAS IT AN ACCIDENT: case heard in court rather than at FSCO/LAT; is checking/filling washer fluid considered an ordinary task to which automobiles are put; Justice agrees this meets the purpose test; accident occurred

Davis seeks summary judgment and a declaration that her injuries were sustained as a result of the “use and operation” of her automobile so that the accident which occurred on January 9, 2013 is an “accident AS defined by the SABs.  The defendant; by way of cross-motion seeks an order for summary judgment dismissing the proceeding on the basis that Davis did not incur her injuries in an “accident” within the meaning of the SABS.

Davis was injured when the hood of her vehicle collapsed on her while she was refilling her windshield washer fluid.  The car was parked in her driveway, the engine was off and Davis was not planning to go anywhere.  It was her practise to check the vehicle’s fluid levels from time to time.  Davis has a valid contract of motor vehicle liability insurance with the defendant including SABS coverage.  Davis claimed for and was refused SABS benefits; the defendant taking the position that her injuries were not sustained in an “accident” within the meaning of the SABS schedule.

Davis claims that opening the hood of one’s car and topping up the windshield wiper fluid is a well-known and ordinary task to which automobiles are put and as such satisfies the “purpose test”.  Justice Hackland agreed.

Justice Hackland reviewed the law, and the SABs and previous cases in order to determine if Davis was engaged in the use or operation of her car when she sustained her injuries.

On the basis of the law and the evidence Justice Hackland accepted and agree with Davis’s position in the present case that opening the hood to check the level of the windshield washer fluid is one of the “ordinary and well known activities to which automobiles are put”.  This is all that is required to satisfy the purpose test.  Indeed, in the Caughey decision Davis was injured when he tripped over a parked motorcycle in the dark.

Davis is granted a declaration of entitlement to the claimed SABS benefits and the defendant’s cross-motion to have the action dismissed, is itself dismissed.  Costs to Davis are fixed in the sum of $8,000 inclusive of disbursements and HST.

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