Law Times

Page 12 September 11, 2017 • Law timeS www.lawtimesnews.com Skeptical public perception about coffee-spill cases Stigma remains around certain types of lawsuits BY MICHAEL MCKIERNAN For Law Times A recent Court of Appeal decision confirming a woman's entitlement to accident benefits over a coffee spillage evokes bad memories for the personal injury bar, according to a Barrie, Ont. lawyer. In Dittmann v. Aviva Insur- ance Company of Canada, the province's top court ruled that a motion judge was right to find Erin Dittmann was involved in an "accident" under the Statu- tory Accident Benefits Schedule when the coffee she ordered at a McDonald's drive-thru ended up all over her lower body, leav- ing her with serious burns. Despite the fact the ruling came down in favour of the plain- tiff, Jordan Kofman, a lawyer with Oatley Vigmond Personal Injury Lawyers LLP, says he's not so sure the case represents a step forward for accident victims. "I think the case was certainly correctly decided," he says. "The only reason I don't love it is that there's still a certain stigma at- tached to coffee cases." Kofman says the skeptical public perception of lawsuits involving spilled coffee dates back to the infamous U.S. case of Liebeck v. McDonald's Res- taurants. The 79-year-old plaintiff in that case, which involved a simi- lar fact scenario, won an award worth US$2.9 million from a New Mexico jury in 1994. However, the award — which was predominantly made up of punitive damages — was substan- tially reduced by the trial judge, and the parties ultimately settled before an appeal could be heard. In the years following, Kof- man says, the case became an undeserving poster child for an allegedly out-of-control legal system. "It was terrible for the plain- tiff 's bar across the board, so I don't think it's good to bring it back into people's thoughts," Kofman says. "There was a lot of misrep- resentation of the facts, and the seriousness of Liebeck's injuries were underplayed, but it still led the public to believe that there were too many frivolous law- suits, and [it] served as a spur for tort reform in the U.S." Kofman says the SABS' wide scope, combined with its broad interpretation by judges and ad- ministrative decision-makers, has led to some surprising incidents coming under its jurisdiction. For example, an FSCO arbi- trator once found a woman who jumped off the back of a parked pickup truck into a shallow lake had been involved in an accident under the SABS, before an adju- dicator overturned the decision on appeal earlier this year. "I'm not sure that the SABS, when it was first written, was meant to help people in all these situations, but when you craft legislation as broad as that, it's inevitable that you will capture some," Kofman says. In Dittman, the plaintiff suf- fered her injuries on an early morning trip to McDonald's in the summer of 2014. While trans- ferring the drink from the service window of the drive-thru to her cupholder, the lid came off and spilled coffee all over her thighs. The car was in gear and run- ning at the time but not mov- ing. Aviva, the woman's insurer, argued that the incident did not meet the definition of an acci- dent under s. 3(1) of the SABS. But in 2016, Ontario Superior Court Justice Robbie Gordon granted summary judgment in favour of Dittman, finding that the definition was met because the use of a motor vehicle was a direct cause of her injuries. In a short decision issued on July 24, a three-judge panel of the Court of Appeal concurred with Gordon's reasoning and dismissed Aviva's appeal. "The issue is not, what was the 'triggering event' of the incident, but rather, what caused the im- pairment. In this case, the use of a running motor vehicle in gear to access the drive-through and the seatbelt restraint were direct causes and dominant features of the impairment the respondent suffered," the judges concluded. Robert Deutschmann, prin- cipal at Kitchener, Ont. personal injury firm Deutschmann Law, says he was encouraged to see the appeal court endorsing the motion judge's decision. "This is consumer protection legislation, so it's always encour- aging to see a decision that takes an expansive view. It's already dif- ficult enough to access sufficient benefits," Deutschmann says. "I understand people might roll their eyes, but these things sometimes happen. Nobody wants to spill scalding hot coffee on themselves to gain medical benefits, but when it does hap- pen, the fact there is some pro- tection available is positive." Michael Gauthier and James Ross of Sudbury, Ont. firm Orendorff & Associates acted for Dittmann, and they say both they and their client were pleased with the result. "We're happy to have an ap- pellate-level decision that clari- fies the application of the causa- tion test," Gauthier says. "I would argue this is not so much an expansion of when a reasonable person would expect their insurer to pay benefits but a maintenance of the status quo. "Since the no-fault system first came in, entitlements to benefits have been gradually reduced, so it's helpful to have some clear case law that, if your car played a part in your injury, your insurer should be liable," he adds. LT PERSONAL INJURY Robert Deutschmann says he was encour- aged to see the Ontario Court of Appeal endorse a motion judge's decision in a recent personal injury case. 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