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Does being injured from spilling coffee in a car entitle you to accident benefits?

According to the Statutory Accident Benefits Schedule (SABS), in order to be entitled to statutory accident benefits, an injury has to arise from an "accident". Section 3(1) of SABS defines an “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”.

So, does spilling coffee in a car fall under “an incident in which the use or operation of an automobile directly causes an impairment”? The Ontario Court of Appeal has answered this question in Dittman v. Aviva.

In Dittman, the Plaintiff bought coffee from a McDonald’s drive-thru and spilled it on her thighs when attempting to transfer the coffee to the vehicle’s cup holder. It is important to note that the car remained in gear, although not in motion, and the Plaintiff was wearing her seatbelt, which limited any reflexive actions to avoid the spill. The analysis of the Court of Appeal focused on causation. Justice Gordon determined that the causation test required the consideration of two questions:

  1. Was the use or operation of the vehicle a cause of the injuries?

  1. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” or in other words, was the use or operation of the vehicle a “direct cause” of the injuries?

Justice Gordon determined that but for the use of the vehicle, the Plaintiff’s injuries would not have occurred. Justice Gordon went on to note that if it was not for the use of the vehicle, the Plaintiff would not have been in the drive thru, would not have received or spilled coffee while sitting, and lastly, if the Plaintiff was not seated and restrained by the seatbelt, she would have been able to take evasive action to avoid or minimize the amount of coffee spilled on her thighs.

Justice Gordon then went on to determine if there was an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. Justice Gordon determined that the accidental spilling of a hot beverage is a normal incident of the risk created by the use of a vehicle at a drive-thru. Justice Gordon went on to exemplify that if the drive-thru attendant deliberately threw the coffee on the Plaintiff then that would be an intervening act and would effectively break the chain of causation.

Due to the analysis of Justice Gordon, the act of inadvertently spilling coffee was deemed to be an “accident” according to the SABS. Thus, the Plaintiff was entitled to receive accident benefits. The full decision of the Court of Appeal can be read here.

By Michael Hoffman.
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Happy Halloween!

Boo! Happy Halloween from Wolfe Lawyers!

It's time for a fun night of trick-or-treating. Here are a few basic tips to help make sure it's a safe one:

Walk Safely:

• Cross the street at corners, using traffic signals and crosswalks.

• Look left, right and left again when crossing and keep looking as you cross.

• Put electronic devices down and keep heads up and walk, don’t run, across the street.

• Teach children to make eye contact with drivers before crossing in front of them.

• Always walk on sidewalks or paths. If there are no sidewalks, walk facing traffic as far to
the left as possible. Children should walk on direct routes with the fewest street crossings.

• Watch for cars that are turning or backing up. Teach children to never dart out into the street or cross between parked cars.

Drive Extra Safely on Halloween:

• Slow down and be especially alert in residential neighbourhoods. Children are excited on Halloween and may move in unpredictable ways.

• Take extra time to look for kids at intersections, on medians and on curbs.

• Enter and exit driveways and alleys slowly and carefully.

• Eliminate any distractions inside your car so you can concentrate on the road and your surroundings.

• Drive slowly, anticipate heavy pedestrian traffic and turn your headlights on earlier in the day
to spot children from greater distances.

• Popular trick-or-treating hours are 5:30 p.m. to 9:30 p.m. so be especially alert for kids during those hours.

For more tips, check out this web site.
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Life Insurance Payout Denied

Some life insurance policies include an exclusion where the policy holder has died while committing a crime or died "as a result of" criminal activity. In such circumstances payout under the policy will be denied by the insurer.

This is precisely what happened to Vanessa Valentyne when she sought payment under her son's life insurance policy from The Canada Life Assurance Company. Vanessa's son, Kevin, was a known drug dealer. In 2013 he was out for lunch with his girlfriend when he was summoned to a house by two of his associates. He drove to the location and left his girlfriend in the running car while he stepped inside the house. He was never seen or heard from again.

Four years later, a British Columbia Supreme Court justice has upheld the insurer's refusal to issue payment under the policy on the grounds that the exclusion applied: "I need only be satisfied on a balance of probabilities that his death was a result of his involvement in criminal activity," wrote Justice Catherine Murray. "The only rational conclusion is that Mr. Valentyne was murdered as a result of his involvement in drug trafficking, a criminal offence."

You can read more about the interesting facts underlying this decision here and here.
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The Dangers of Pool Entrapment

Pool entrapment occurs when a swimmer becomes trapped due to pump suction, ladders, filters or drains. Resulting injuries can be very serious and may include death by drowning, evisceration or disembowelment. Unfortunately, pool entrapment remains a somewhat hidden danger. Parents and swimmers don’t often think of the issue.

Possibly the most widely-known case of pool entrapment occurred in the United States. A 7 year old girl named Virginia became trapped due to suction from a spa drain. The suction held her under the water and despite her parent’s efforts to rescue her, she drowned. The United States has since enacted the Virginia Graeme Baker Pool and Spa Safety Act which aims to implement safety initiatives to pool and spa facilities.

Canadian standards are put in place to help educate, govern and warn swimmers of pool entrapment. Health Canada and other resources speak to the overall sensible use of water facilities and owner responsibilities. National safety standards ask that “every owner and every operator shall ensure that they identify and render safe all hazards related to underwater entrapment and suction points within the swimming pool.”

It is important that pool owners/operators, parents and swimmers alike are educated, understand the associated risks and know how to take preventative measures. Measures may include:

  1. Properly inspecting the pool drains and systems to ensure they are modernized and safe and that older, dangerous models are replaced

  1. Educating all swimmers to stay away from pool and spa drains, pipes and other protrusions and openings

  1. Educating all swimmers to tie their hair back and remove loose clothing and jewelry before swimming
The summer is here and the weather is hot. Make sure to consider safety precautions, especially with children, when enjoying the water.
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