A Crash Involving Aircraft Unfit for Flight Was an Accident

After thoroughly reviewing the law on the defintion of “accident”, the court concluded the insured’s foolish attempt to take-off with only one functioning engine in a two-engine aircraft, resulting in a crash, was still an accident.

Van Berlo v. Aim Underwriting Ltd., [2014] O.J. No. 3885, August 19, 2014, Ontario Superior Court of Justice, V. Mitrow J.

The insured attempted to take-off in a two-engine aircraft when he knew that one of the engines was not functioning properly. After lift-off the aircraft nicked a tree with the right wing. The insured directed the aircraft to impact on one side to absorb the shock and cause the plane to cartwheel. The insurer denied coverage under the policy on the basis that the occurrence was not an accident.

The question in this case was whether the decision by the insured to attempt a single-engine take-off in a twin-engine aircraft, and then crashing, was an occurrence that fits within the meaning of an “accident”. The court thoroughly reviewed the jurisprudence on the definition of the word “accident”. The court applied the often cited definition of an accident as being an “unlooked for mishap or occurrence” and also relied on the line of cases establishing the principle that an accident can occur even where the conduct of the insured constitutes negligence or even gross negligence. It concluded the decision to take-off was foolish and amounted to negligence, however, it was still an accident.

The insurer attempted to rely on the Supreme Court of Canada’s decision in Cooperative Fire and Casualty Co. v. Saindon, [1976] 1 S.C.R. 735 in which the court held an insured’s attempt to scare a third party by directing lawnmower blades towards the third party’s face, and then cutting off the man’s fingers, was not an accident. In Saindon, the court held unintended, but reasonably anticipated, consequences of a willful and culpable act could not be considered an accident. The court here rejected the insurer’s “courting the risk” argument or that the insured had deliberately assumed the risk of his actions. The court concluded the insured’s actions did not rise to the level discussed in Saindon.

This case was originally summarized by Djuna M. Field of Harper Grey LLP.

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