Written by litigator and mediator Irvin Schein and originally published at irvinschein.com.
A number of years ago, a case in New Mexico called Liebeck v. McDonald's Restaurants made headlines when a 79 year old plaintiff won an award worth U.S. $2.9 million from a jury. Most of the award was made up of punitive damages. It was substantially reduced by the trial judge. The Judgment was appealed and the case was settled before the appeal could be heard. Nevertheless, the case made headlines given what appeared to be a tremendous discrepancy in the public's perception between the amount awarded and the type of compensation that any person spilling coffee on themselves could possibly hope for in his or her wildest dreams.
In Canada, much of the commentary reflected the common perception that American cases are capable of ending with crazy decisions.
The recent decision of the Ontario Court of Appeal in Dittmann v. Aviva Insurance Company of Canada suggests that Canadians should not be pointing fingers quite so quickly.
In this case, the plaintiff purchased a cup of coffee from a McDonald's restaurant drive through. After stopping at the first drive through position to place her order, she drove up to the window to pay for her coffee and to receive it. Her car was running and in gear at the time but it was not moving. When she was handed the coffee, she attempted to move it across her body to the car's cup holder while holding it by its lid. The cup released from the lid before it made it to the cup holder, spilling hot coffee on her.
She was wearing her shoulder/seatbelt at the time, presumably preventing her from taking any evasive action to avoid the spill.
At the time she had car insurance with Aviva. As such she was eligible for accident benefits under Ontario Statutory Accident Benefits Schedule ("SABS"), which provides for statutory accident benefits in accordance with the terms of a person's insurance policy.
The plaintiff sought these benefits and Aviva took the position that she was not entitled to them.
Eligibility for SABS requires a consideration as to whether or not the use or operation of a vehicle was a cause of injury and if so, if there was any intervening act resulting in the injury outside of the ordinary use or operation of the vehicle.
Aviva conceded that using a drive through window is an ordinary activity to which vehicles are put. The real question was as to whether or not the use of the vehicle was a cause of the plaintiff's injuries. The matter was dealt with by motion. The motion judge found that the use and operation of the vehicle was indeed a direct cause of the injuries. He ruled that but for her use of the vehicle, the plaintiff would not have been in the drive through lane, would not have received the coffee cup while seated, would not have been transferring it to the cup holder, and would not have had it spill on her lap. In addition, but for her being belted in, she may have been able to take evasive action to avoid the coffee or at least reduce the amount that was spilled on her.
The decision was appealed to the Court of Appeal. The Court of Appeal confirmed the motion judge's decision. The Court of Appeal pointed out that the issue was not what the triggering event of the incident was, but rather, what caused the problem. In this case, the use of a vehicle with the engine running and in gear to access the drive through, and the seatbelt restraint, were direct causes and dominant features of the injuries suffered by the plaintiff.
I learned a long time ago, the hard way, that holding a fast food restaurant beverage by the lid was not a good idea. I also learned to accept responsibility for my own mistakes. In this case, the plaintiff was able to learn the lesson and get paid for it in the process. So the next time you receive your car insurance premium notice and wonder why it is so high, think about cases like this one.
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