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Avoidable events may still be accidents for insurance purposes

In Canadian Indemnity Co. v. Walkem Machinery and Equipment Ltd., [1976] 1 S.C.R. 309 a crane on a self‑unloading barge designed for transporting logs collapsed. The barge bearing the crane had been provided to the plaintiff by the defendants in an inadequate state of repair and it was found that the defendants had known that the vessel was in an inadequate state of repair but had returned it to the plaintiffs in that state without warning. The court found that Canadian Indemnity was liable to indemnify Walkem Machinery and Equipment Ltd. under the Comprehensive Business Liability Policy that applied to the loss and indicated that a loss may be accidental even if it may have been avoided by greater care: 
 
That a mishap might have been avoided by the exercise of greater care and diligence does not automatically take it out of the range of accident. Expressed another way, “negligence” and “accident” as here used are not mutually exclusive terms. They may co-exist.
(Canadian Indemnity Co. v. Walkem Machinery and Equipment Ltd. [1976] 1 S.C.R. 309 at 315).
 
Similarly:
 
That a mishap might have been avoided by the exercise of greater care and diligence does not automatically take it out of the range of “accident”.
(Hearn/Actes v. Commonwealth Insurance et al, 2000 BCSC 764 at para. 28).
 
In Martin v. American International Assurance Life Co., 2003 SCC 16 the insured, a doctor who was addicted to opiate medications, died from a drug overdose. The Supreme Court of Canada found that the doctor did not expect to die but simply made a miscalculation concerning how much Demerol his body could tolerate. The court explained that an event is not an accident if it is bound to happen in the ordinary course of events, but that an event does not become not an accident simply because it could have been avoided by taking more care, or because it occurred in the course of dangerous activity.
 
It follows that death is not non-accidental merely because the insured could have prevented death by taking greater care, or that a mishap was reasonably foreseeable in the sense used in tort law.  Nor does a death that is unintended become “non-accidental” merely because that person was engaged in a dangerous or risky activity.  As this Court emphasized in Canadian Indemnity, supra, at p. 316, the jurisprudence assigns a generous meaning to “accidental”, in the absence of language to the contrary in the insurance policy.
 
The pivotal question is whether the insured expected to die.
 
(Martin v. American International Assurance Life Co., 2003 SCC 16 at para. 20 - 21).

 

 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing persons who have been denied coverage under property insurance policies, or liability insurance policies. If you have been denied insurance coverage and require assistance with making a claim against your insurer call Michael at 604 895 3160.