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The recent Ontario Superior Court of Justice decision of Dittmann v. Aviva Insurance Company of Canada[1] provides an interpretation of what qualifies as an “accident” pursuant to the Statutory Accident Benefits Schedule (“SABS”).

Subsection 3(1) of the SABS defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

In this case, the insured purchased coffee at a McDonald’s drive thru and attempted to transfer it to a cup holder in her vehicle. The lid detached and hot coffee spilled on her thighs. Her vehicle was in gear and running at the time, but it was not in motion, and there was no collision. The insured was seat-belted, so she was unable to take reflexive, evasive action to avoid or lessen the effect of the spill.

The insured had an automobile insurance policy with Aviva. This entitled her to accident benefits if her injuries arose from an “accident”.

Aviva brought a motion for summary judgment dismissing the insured’s claim on the grounds that her injuries did not arise from an “accident” pursuant to subsection 3(1) of the SABS.

Whether the insured was involved in an “accident” as defined by the SABS depended on whether the accident resulted from the ordinary and well-known activities to which automobiles are put. It also depended on whether the use or operation of the vehicle was a direct cause of the injuries, or whether there was an intervening act that was outside the “ordinary course of things.”

The court found that attending a drive thru was an ordinary and well-known activity to which automobiles were put, and that but for the use of the vehicle, the insured’s injuries would not have occurred. Accidentally spilling a beverage was considered a normal incident of risk created by the use of a vehicle, so the situation was not outside of the ordinary course of things.

The court dismissed Aviva’s motion and found that the insured was entitled to Accident Benefits coverage.

[1] 2016 ONSC 6429.

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