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Spilled Coffee at Drive-Thru Not an “Accident”

By Samuel Pevalin, Student-at-Law


The Licence Appeal Tribunal (LAT) considered the issue of what constitutes an “accident” under 3(1) of the Statutory Accidents Benefits Schedule (“SABS”) in Rathbone v. Co-operators General Insurance Company, 2023 CanLII 58468. The applicant, Mr. Rathbone, sustained injuries when he ordered a coffee at a drive-thru and the lid came off, burning him. The Tribunal held that an improperly placed coffee lid counts as an intervening act, so Mr. Rathbone did not qualify for benefits.


Mr. Rathbone visited a Tim Hortons drive-thru on August 17, 2021. He drove up to the window with his seatbelt on, and as he took a coffee from the drive-thru window to place in his cupholder, the lid came off, and the upper brim of the cup collapsed inward. The coffee spilled over the sides of the cup, onto his lap and groin area, burning him. Mr. Rathbone received first-aid from the Tim Hortons’ employees and later went to the ER to treat his burns.

Mr. Rathbone applied for accident benefits from his insurer, Co-Operators General Insurance Company. Section 3(1) of the SABS defines an accident as “an incident in which the use or operation of an automobile directly causes an impairment.” Co-Operators denied his claim on the basis of the incident not being an “accident”.

Mr. Rathbone took the matter to the LAT, arguing the incident occurred solely because of the use and operation of the motor vehicle to stop at the drive-thru lane while restrained by a seatbelt.


Did Mr. Rathbone’s case satisfy the definition of an “accident” under Section 3(1) of the SABS?


Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 sets out a two-part test for whether an incident satisfies the definition of an “accident”.

  • First, the purpose test: Did the incident arise out of the use or operation of an automobile?
  • Second, the causation test: Did the use or operation of an automobile directly cause the impairment? This test has three sub-parts:

a) the “but for” consideration

b) the “intervening act” consideration

c) the “dominant feature” consideration


Co-operators conceded the purpose test was met. The adjudicator also found the “but for” part of the causation test was met. In particular, but for the use of the vehicle to go to a drive-thru, Mr. Rathbone would not have been injured. The key issue in the case was whether there had been an intervening act.

Intervening Act

Mr. Rathbone relied on the case of Dittmann v. Aviva Insurance Company, 2017 ONCA 617 (“Dittmann”) to demonstrate there was no intervening act. In Dittmann, the plaintiff ordered a coffee at a drive-thru. The plaintiff received the coffee and held it by the lid, transferred it across her body, but then the coffee cup released from the lid. The coffee spilled on the plaintiff and burned her.

In Dittmann, the motion judge cited Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), stating “that an intervening act will absolve the insurer of liability if it cannot fairly be considered as a normal incident of the risk created by the use of the car.” The motion judge found that coffee spilling at a drive-thru amounted to a normal incident of risk created by using a car, and the plaintiff was entitled to benefits. The Court of Appeal upheld this decision.

Co-operators relied on the case of M.P v. Allstate Insurance Company of Canada, 2020 CanLII 30398. In M.P, the applicant ordered tea at a drive-thru, received it in a tray and placed it on the passenger seat. The applicant then drove off and arrived at a red light, where she noticed the lid was loose. The applicant took the tea out of the tray and brought it in front of her to fix when it spilled and burned her. The adjudicator determined that, because the applicant recognized the lid was loose before attempting to fix it and burning herself, the loose lid qualified as an intervening act.

In the case at hand, Mr. Rathbone stated at an examination under oath that “due to the lid not securely installed, the liquid spilled out, which caused me to — to — reactionary — to drop the cup.” In Dittmann, the plaintiff did not mention noticing an improperly sealed lid. The adjudicator consequently used Mr. Rathbone’s admission to distinguish the case at hand from Dittmann and held that the loose coffee lid amounted to an intervening act.


First, evidence matters. A one-line admission Mr. Rathbone gave during his EUO was enough to distinguish his case from the precedent he relied on.

Second, be even more diligent when handling hot beverages!