Coffee Lid “Intervening Act”
The Applicant Rathbone, in 22-009104 v Co-operators, was stopped at a drive through window, purchasing two coffees. As he transferred the second from the window into the car, the lid came off, resulting in coffee spilling onto his lap, and he reacted to same by dropping the remainder of the coffee onto his lap. He secured burn injuries, and ultimately sought treatment at the hospital for his injuries. Rathbone submitted both that the described incident satisfied the definition of “accident” in accordance with the Schedule, and as well that he had a reasonable explanation for not reporting this August 2021 incident to Co-operators until March 2022.
Rathbone contended that there was no intervening act that would absolve the respondent of liability. He relied on the Court in Dittmann v. Aviva, that was affirmed by the Court of Appeal. In Dittman, she was also transferring the coffee from the drive through window into the car, holding same by the lid, at which time the cup released from the lid, and the coffee thusly spilled onto her lap. The Court held “That the beverage might inadvertently spill is a normal incident of the risk created by that use. Accordingly, it cannot be said to have been outside the “ordinary course of things…”. Therefore, Dittman was involved in an “accident”, as there was no intervening act that would effectively break the chain of causation.
However, despite markedly similar circumstances, the Tribunal found that the facts of the within case were distinguishable. It was noted that Rathbone had mentioned at his EUO that the fact of the lid not being secured properly to his coffee cup a couple of times. Therefore, it was found that “the fact that the lid was not secured properly was the intervening act that caused the injuries and broke the chain of causation… his injuries resulted from an intervening cause, which was the improperly secured lid that caused the coffee to spill onto him.” Accordingly, the use or operation of the vehicle did not directly cause the injuries sustained by Rathbone.
With respect to the aforementioned late notice, Rathbone testified at his EUO that “…I understand it happened within a vehicle, but my — my first mind or my first reaction was not that this could be anything that could be covered under my car insurance policy.” It was not until he received a legal opinion that he discovered that he could apply for accident benefits as a result of the incident. The Tribunal did “not find this explanation credible or worthy of belief. The applicant had retained experienced legal counsel within weeks of the incident. It is unclear why it took almost seven months to notify the respondent… In my view, the applicant’s explanation for the delay is not reasonable”.
Therefore, Rathbone was found not to have complied with s.32 and s.34 of the Schedule, having “failed to provide a reasonable explanation for the delay in notifying the respondent regarding the circumstances that gave rise to the entitlement to the benefit…”.