The insured was not in breach of his insurance policy when he crashed his vehicle into a restaurant after consuming a bowl of Kava (a traditional Fijian drink). There was insufficient evidence to prove that a single bowl of Kava would cause the symptoms experienced by the insured. The insured did not provide a false statement by saying he had not consumed drugs in the 12 hours prior to the accident.

Insurance law – Automobile insurance – Policies and insurance contracts – Breach of policy – Exclusions – Impaired driver

Venkataya v. Insurance Corp. of British Columbia, [2015] B.C.J. No. 1896, 2015 BCSC 1583, British Columbia Supreme Court, September 3, 2015, P.G. Voith J.

The action arose out of a single vehicle accident (the “Accident”). The plaintiff insured claimed for the replacement value of his vehicle, pursuant to his optional collision/own damage policy with the defendant ICBC. ICBC accepted that the insured had coverage for this loss, but alleged that the insured was in breach of the terms of his insurance policy. Specifically, ICBC alleged that (1) the insured had consumed a traditional Fijian drink called “Kava” prior to the accident, rendering him incapable of the proper control of his vehicle; and (2) the insured had provided a willfully false statement.

The issue before the court was whether the insured was in breach of his insurance policy. Mr. Justice Voith concluded that ICBC had failed to establish any breach.

Mr. Justice Voith accepted that the insured had attended a friend’s house on the night of the accident. There were five other guests in attendance. As per Fijian custom, the youngest attendee prepared and served the Kava. The insured had only one small bowl, as he was not feeling well that day. Around 2am, the insured decided to drive home. He took his usual route.

Sometime during the drive, the insured suffered a loss of consciousness. In the plain view of two police officers, the insured’s vehicle hit a meridian, crossed from the southbound lane into the northbound lane, and passed very close to the officers, who were frantically waiving for the vehicle to stop. The vehicle then proceeded to hit several poles, signs, trees, a light standard and a fire hydrant, before crashing into the wall of a restaurant. Both police officers described the events as “extraordinary”.

When the insured exited the vehicle, he had difficulty speaking, standing and walking. He vomited several times. When asked if he had been drinking, the insured advised the police that he did not drink, but that he had consumed “one small bowl” of Kava. The insured’s blood alcohol level was zero. He subsequently pled guilty to driving without due care and attention. The insured took steps to determine whether there was some medical condition that could have caused his loss of consciousness. His doctors were unable to identify any.

ICBC relied on the insured’s erratic driving and the expert evidence of a pharmacologist to argue that Kava was an intoxicating substance and that it had rendered the insured incapable of proper control of his vehicle. Mr. Justice Voith found that this evidence was insufficient to discharge the onus upon ICBC. In particular, he found that ICBC’s expert, though having impressive qualifications, had little experience or familiarity with Kava. Further, the expert purported to rely on documents that were not put into evidence, newspaper articles and potentially unreliable internet sources. Of the two scientific articles referred to by the expert, one considered the effects of Kava when consumed with alcohol and the other when Kava was consumed at 150 times the clinical dosage. The former study was inapplicable, and the latter study reported a series of symptoms that were inconsistent with that shown by the insured. In any event, Mr. Justice Voith accepted the insured’s testimony that he had only consumed a single bowl of Kava.

Mr. Justice Voith thus concluded that the insured was not in breach of his policy with respect to his consumption of Kava. Justice Voith also found that any inaccuracies in the insured’s subsequent statement to ICBC were simply as a result of the insured’s interpretation of the word “drug” and perhaps a failure to appreciate the significance of the phrase “prescription or otherwise”. He concluded that these inaccuracies were not intentional. Mr. Justice Voith ordered ICBC to pay the amount due under the insured’s policy.

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