Personal Injury

Court rules benefits apply to injuries sustained while car surfing

By Kathy Rumleski, AdvocateDaily.com Contributor

Toronto personal injury lawyer Nainesh Kotak says a recent ruling by the Ontario Divisional Court confirming that auto insurance covers what’s known as car surfing is a well-reasoned decision.

“I would have been surprised if it was decided in a different way,” he tells AdvocateDaily.com.

According to the decision, a woman was seriously injured after she fell while standing on the bumper of a moving vehicle, an activity referred to as car surfing. She struck her head on the concrete.

The Ontario Divisional Court decision upheld a ruling at the Ontario Licence Appeal Tribunal, which rejected the argument by the insurance company that the incident was not an accident.

“Nobody was saying this wasn’t dangerous, but we aren’t looking at the sensible nature of the conduct in this case,” says Kotak, principal of Kotak Personal Injury Law.

Ontario Divisional Court Justice Paul Perell wrote in his decision that the woman’s action was “reckless and foolish,” but that she used the car “for its normal purpose of transportation.”

In determining if there should be accident benefits paid in an incident involving a car, the court will look at a two-part test, Kotak explains.

“The first test is to look at causation. Was the use of the automobile a cause of the injury?”

In this case, the answer is yes, he says.

“She was on the automobile when she fell and hit her head.”

Kotak says the second part of the test is trickier.

“The court must decide if the use of the automobile is within the normal course of what it will be used for,” he says. “It doesn’t matter how silly the conduct was. It was deemed to be in the normal course of automobile use because people do car surf.”

Kotak says that even though car surfing is considered an offence under the Highway Traffic Act, it is a practice some people engage in.

“We may not like the activity that the car was used for, but it’s still in the normal course of use.”

Because the Insurance Act is consumer protection legislation, if there is any ambiguity in how it should be applied, Kotak says it will be interpreted to favour the consumer.

“The Insurance Act does not preclude those activities from coverage.”

The same is true for other illegal activities, such as driving while impaired or while texting, Kotak says.

“If an impaired driver is in an accident and they are injured, they still have access to benefits coverage to a certain extent,” he says. “When it comes to texting, it is a distraction, but a person could also be preoccupied with the radio, or maybe they’re just a terrible driver. Either way, they would still be covered in terms of receiving accident benefit payments.”

While this case may be anomalous, Kotak says similar matters will be judged on their individual circumstances.

“The court will have to look at the issues around each to see if the two-part test of causation and normal course of use are actually met,” he says.

Kotak says even though the Ontario Divisional Court ruled against the insurance company, it doesn’t mean people will take more risks when it comes automobile use.

“Let’s be clear, this decision won’t encourage people to go car surfing.”

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