In Roberts v. Intact Insurance Company (FSCO A14-002957), Arbitrator Musson found that Intact was responsible for the payment of accident benefits to a young woman who had injured herself while diving into a shallow lake, with a considerable amount of alcohol in her system, from the tailgate of a stationary pick up truck, sometime after 2 a.m.

The facts of the case were submitted by way of an agreed statement of facts. Essentially, the claimant and her friends were out for a night of drinking and socializing.  After patronizing a bar in Manitouwadge, Ontario, they drove out to Sand Lake.  The truck was parked, with its engine off and music blaring from its stereo. The truck bed was hanging out over the shore.  The tailgate was put down and the group were jumping from the tailgate into the lake.  Nobody actually witnessed the claimant jump from the tailgate into the water but she was last seen standing up in the bed of the truck before next being seen floating face down in the water. 

She was transported to Manitouwadge hospital where she was diagnosed with complete (ASIA A) cervical spinal cord injury C5-C6, secondary to traumatic C5-C6 fracture-dislocation, rendering her quadriplegic.   An application for accident benefits was submitted to the pick up truck’s insurer, Intact. 

At the arbitration hearing, Intact denied that the claimant was involved in an “accident” as defined in the SABS, which is “an incident in which the use or operation of a motor vehicle directly causes an impairment …” Specifically, Intact took issue with the claimant’s submission that the incident arose from an activity involving the ordinary use to which automobiles are put.  Arbitrator Musson disagreed and found that the claimant was injured while as a result of “disembarking” the truck and it mattered not that she was diving off the tailgate into a shallow lake, versus say stepping down from the tailgate onto asphalt or grass.  It was further found that had the claimant been jumping from the hood of the truck and not the truck bed/tailgate, this activity may not have passed the purpose test because the hood of a truck is not designed for such activity.

As to causation, it was held that the claimant’s injuries were a direct result of her disembarking into the lake.  There was no intervening event to absolve Intact from liability.  Taking into consideration a “but for” analysis, Arbitrator Musson found that “but for” parking the truck at the lake’s edge, the claimant would not have been injured or “but for” disembarking the tailgate she would not have been injured.   Finally, as the last object on which the claimant was observed before the incident, it was a dominant feature in the claimant’s injuries.

Both the 1996 and 2010 legislative changes were meant to bring about a tightening of the definition of an accident by requiring a direct link between the use and operation of an automobile and the injuries sustained.  However, what constitutes “ordinary use to which automobiles are put” continues to be expanded by recent court and arbitration decisions.  In this case for example, Arbitrator Musson states that using trucks for “tailgating” purposes is an ordinary and regular use as evidenced by the fact that manufactures are putting cupholders into the beds of trucks for this very purpose (presumably, this is also why stripper poles are installed in party buses).  Potentially “tailgating” in its ordinary sense of a social gathering on or around the open tailgate of a truck could be a regular and well known activity to which tailgates are put. The motoring and premium paying public may be surprised to find that using a truck bed as a diving platform, in the middle of the night, after having consumed a significant amount of alcohol, to dive into a relatively dark and shallow lake is also a regular and ordinary use.