Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429

Spilling hot coffee in a drive-through is an “accident” under s.3(1) of the SABS

Released October 24, 2017 | Full Decision [CanLII]

The Plaintiff spilled hot coffee on her lap while in McDonald’s drive-through. Her car was in gear at the time, but not moving. There was no other vehicle involved in the spill. She was wearing her seatbelt and could not take evasive action to avoid the burning coffee.

The Plaintiff applied for accident benefits. Her insurer argued she was not involved in an “accident” within the meaning of s.3(1) of the SABS. The Court was left to consider the “purpose” and “causation” test to determine whether the Plaintiff was involved in an “accident”. The Court was required to ask:

  1. “Was the use or operation of the vehicle a cause of the injuries?’
  2. “If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?”

The Defendant conceded the purpose test. It admitted that attending a drive-through was “within the range of the ordinary and well-known activities to which automobiles are put”. The only issue was the causation test.

On the causation test, the Court agreed with the Plaintiff. But for the Plaintiff’s use of her car, she would not have been using the drive through. But for the Plaintiff’s use of her seatbelt, she may have been able to avoid the burning coffee. The Court wrote:

I am content that but for the use of the vehicle the Plaintiff’s injuries would not have occurred. I come to this conclusion because but for her use of the vehicle she would not have been in the drive-through lane, would not have received the coffee while in a seated position, would not have been transferring the coffee cup to the cup holder across her body, and would not have had the coffee spill on her lap. In addition, but for her being seated and restrained by a lap and shoulder harness she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.

Further, the Court found no intervening act. The Plaintiff’s injuries were part of the “ordinary course of things.” Beverages spill in the ordinary course of things. This case was distinguished from a situation where a drive-through attendant deliberately threw a hot beverage on a drive-through patron, or a patron became sick from bad coffee. The Court wrote:

In the case before me the automobile was being used to allow the Plaintiff to acquire a hot beverage at a drive-through window of a fast food restaurant. 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” as would be the case with such intervening acts as a drive-through attendant deliberately throwing hot coffee on the claimant or the claimant falling ill due to impurities in the coffee that was served. Such intervening acts would not be a normal incident of the risk created by the use of the car and would effectively break the chain of causation.

Read the full decision on CanLII


  • Plaintiff: Michael A. Gauthier
  • Defendant: Joy E. Stothers
  • Judge: R.D. Gordon R.S.J.
Jordan Kofman
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.