Definition Of 'Accident' Revisited: Van Berlo v Aim Underwriting Limited Et Al 2014 ONSC 4648, 122 O.R. (3d) 315

Van Berlo v Aim Underwriting Limited et al ("Van Berlo") proceeded to trial, was appealed and then was sent back to be reheard anew when the Ontario Court of Appeal decided that the trial judge had used an incorrect standard when coming to her decision.

This case involved a pilot's take-off attempt with a compromised engine that resulted in a crash and the issue was whether such incident was an "accident". Also at issue was whether the plaintiff was in breach of a condition of the subject policy that obligated him to minimize the loss, once the risk materialized and whether his failure to do so, disentitled him to coverage.

This case provides a helpful review of the Supreme Court of Canada decisions regarding the definition of "accident" and confirms that, even if conduct is foolish, simply bad judgment or can be characterized as "gross negligence", the circumstances can still amount to an "accident" and corresponding coverage.

Facts

The 54 year old plaintiff, who was an experienced pilot, owned a single-engine Piper "Cherokee Six" (the "Aztec"). He had logged close to 1,000 hours with this aircraft using it to travel between various states in the United States and Canada. On the morning of August 24, 2009, the plaintiff, in his Aztec, took off from a private airstrip in Delhi, Ontario heading to a town in North Carolina and he had clients with him as passengers. The trip to North Carolina was uneventful, as was the plaintiff's solo return trip of 2 hours and 20 minutes to the airport at Brantford, Ontario. The plaintiff landed at the Brantford airport at about 4:00 p.m. The plaintiff was registered in the "Canpass" programme and accordingly he had confirmed earlier that he would be at the Brantford airport at 4:15 p.m. for the purpose of clearing customs. This protocol required the plaintiff to be present at 4:15 p.m. for the purpose of meeting with a customs official. On a random basis, however, such customs official may or may not attend. If that customs official does not attend, then the person is free to go. On August 24, 2009, no customs official attended at the appointed time and so the plaintiff left and proceeded to the Aztec to fly home, which was a short six-minute flight.

Upon starting the engines of the Aztec, the plaintiff's right engine would not start, but, after his inspection, the plaintiff determined that the starter motor on the right engine would not engage properly or "turn over". The plaintiff's assessment was that the right engine itself was capable of functioning properly although it could not be started via the starter motor. The plaintiff chose not to use the repair facility at the airport because he did not have confidence in it typically using, instead, his own local mechanic to carry out any necessary repairs.

The plaintiff, fatefully, decided he would fly home utilizing a single engine take-off. The right engine had trouble and not the critical left engine that powered the hydraulics. The left engine also had the thrust closest to the fuselage. The Aztec was "light" having no passengers or cargo and only an hour and a half of fuel. Further, the wind was light and blowing in the intended direction of his flight giving him increased lift at take-off. The plaintiff also knew that, while operating on a single engine, the Aztec would tend to "yaw" and, given the direction, he would be heading away from people towards an open field area where he felt that he would not endanger others.

The plaintiff also had multi-engine training with, according to the plaintiff's evidence, over 50% of that training involving single-engine operation of the Aztec. The plaintiff explained in his evidence that the Aztec's ability to fly on one engine was "flawless", although the speed was slower. During cross-examination the plaintiff agreed that he had never attempted a one engine take-off. The plaintiff testified that he considered that the runway had a length of five thousand feet and that, with two engines, if you held the brakes and powered up, the Aztec could be airborne within five hundred feet. With a single-engine take-off, the plaintiff testified that he had to power gradually to the left engine, and "roll into it" being careful not to apply too much throttle or the aircraft would spin. As speed was gained, the plaintiff would have to apply "left rudder" and "more right aileron" to steer the plane down the runway and to counteract the tendency of the plane to veer or "yaw" to the right. The plaintiff expected (or rather he was "hopeful") that he would achieve a speed of 102 miles per hour, whereas, in normal circumstances, a speed of ninety to ninety-five miles per hour would result in liftoff.

The plaintiff's state of mind as to the ability of the Aztec to take-off on one engine was also important. The plaintiff was confident that the Aztec could take off on one engine. He bet his life on it.

The actual one-engine take-off on August 24, 2009 involved the plane being positioned at the beginning of the runway after which he kept "inching the power up" and the speed increased. The Aztec became airborne after it was approximately two-thirds down the runway after which it yawed to the right. The plaintiff applied the necessary controls to counteract the yaw. However, he did not "think" that the plane touched the ground again and he thought he managed to keep the aircraft flying over a cornfield, which was to the right of the runway, and which was actually on the airport property according to the plaintiff.

Once airborne, the plaintiff testified he only had one option and that was to keep flying. If he had tried to put the aircraft back down, the plaintiff testified that he would have ended up in the cornfield at a high rate of speed with potentially "deadly" consequences. The Aztec cleared the cornfield and the estimated speed was 100 miles per hour. The aircraft was climbing but the plaintiff could not recall at what rate. The plaintiff could not quite clear the tree line at the eastern end of the airport and he "nicked" a tree with the Aztec's...