Updated: Jun 5, 2019
We all have, at least once in our lifetime (well at least I am guilty of it), had done those car and/or bike “stunts”. Doing a wheelie, riding on the bumper of a vehicle or something stupid like that. Have you ever imagined how your insurers would respond if you get injured in one of these “stunts”? Is your insurer liable to pay those accident benefits to you? Or are these “stunts” excluded from coverage, since they appear to fail the so called “purpose test” under SABS [see https://www.4theloveofinsurance.com/post/not-quite-e-gg-spected]?
In Charbonneau v Intact Insurance Company, 2018, an exciting decision by the Ontario Superior Court of Justice, injuries sustained because of a “stunt” similar to the ones mentioned above were discussed and the results were quite interesting. But read the full article before jumping at the end (I know the temptation right!).
Ms. Charbonneau got injured when she fell from the rear bumper of a car, which was in motion. She was riding on the rear bumper of the car and held onto the roof rack with one hand, and she held onto a friend’s shoulder, who was also standing on the bumper of the moving vehicle. Another friend in the vehicle was video recording the event. The driver made a sharp turn because of which, Ms. Charbonneau lost balance and fell, hitting her head on the concrete.
Ms. Charbonneau pursued accident benefits coverage under the Intact Insurance Policy issued to Ms. Charbonneau’s father.
At the hearing before the Adjudicator, it was Intact’s position that the incident in which Ms. Charbonneau was seriously injured was not an “accident” under SABS. Intact submitted that the purpose test is designed to ensure that no fault benefits are confined or restricted to accidents or to motorists and others who are making an ordinary and well-known use of the vehicles.
DECISION OF THE ONTARIO LICENCE APPEAL TRIBUNAL
The Adjudicator confirmed that the accident met the “purpose test” and no doubt the “causation test” as set out in the case law [see Amos v. Insurance Corporation of British Columbia, 1995 (SCC)] with respect to what constitutes an accident for the purposes of Statutory Accident Benefits and she concluded that there was an accident.
The court, rejecting Intact’s appeal and holding the activity (colloquially called as “car surfing”) as commonplace enough that it is criminalised as an offence under s. 178 of the Highway Traffic Act, confirmed (Excerpts taken from different paragraphs, not necessarily in the same order as below):
Car surfing or attaching oneself to a vehicle, while reckless and dangerous, is not a more abnormal use of a vehicle than the other reckless and dangerous uses of a vehicle such as texting while driving.
In our opinion, while reckless and foolish, Ms. Charbonneau was using the vehicle for its normal purpose of transportation and there was an accident in which the Adjudicator correctly determined there was Statutory Accident Benefits.
I am a bit speechless on this one. This is a very (very) surprising decision in my opinion. I am not sure what message the courts out there are trying to convey to people, especially the younger generation. But I simply hope that no one indulges himself/herself in such a stupid act and get injured.