Yesterday the Ontario Divisional Court unanimously upheld FSCO’s decisions in Whipple v. Economical (affectionately known as the “stripper pole” case).
In Whipple, the claimant and his golf buddies were returning via Interstate 90 from a day of golfing in New York State when Mr. Whipple was injured at about 10:30 in the evening. The incident occurred in a 24-passenger luxury limousine coach tall enough for passengers to stand and move around in. It was advertised as a "Party Bus". Its amenities included "a pole with a light above it in the center of the wrap-around seating in the rear of the vehicle, referred to by all of the witnesses, including the owner and driver of the vehicle, as a 'stripper pole'… [T]he pole was an amenity of the vehicle, was intended to be used as one, and was so used by various members of the group on the evening of the incident."
During the return trip, the passengers started playing a game of one-upmanship around the stripper pole, which started with some of the men "amusing themselves and the others with a rudimentary form of 'pole dancing,' i.e., cavorting around the pole at the rear of the bus, mimicking the antics of strippers." Whipple testified that "each one was trying to 'out-do' or one-up the others, raising the ante so to speak, and this is likely what prompted him to attempt a headstand and one-up them all."
After one man slid down the stripper pole upside down, Mr. Whipple tried to top that antic with a headstand. He walked normally up to the pole, placed his head on the floor, braced himself with his hands and flipped his legs in the air, caught one foot on the pole, missed it, his arms gave out, his forehead hit the floor and his neck snapped. He fractured his neck, rendering him an incomplete quadriplegic.
As a result of the incident, Whipple applied to his personal insurer for accident benefits (pursuant to the priority rules under section 268(2) of the Insurance Act). His insurer denied coverage on the basis that he was not involved in an “accident”.
At FSCO, the arbitrator found that claimant was involved in an accident. She found that Whipple's headstand met the purpose and causation tests of an "accident", set out in the jurisprudence. He met the cause test because "but for" the pole being there Whipple would not have attempted the headstand. He met the purpose test just before and just after the incident as a passenger in the limo bus. In light of the type of vehicle in question, its amenities, and the activities inside it, Whipple's actions were seen as occurring in the course of the ordinary and well-known activities of that particular limo bus.
The Director’s Delegate dismissed the insurer’s appeal, agreeing with the arbitrator’s findings on the purpose and causation tests. The Divisional Court dismissed the insurer’s application for judicial review, with oral reasons.
So next time you ride a party bus that is equipped with a stripper pole, you might have some assurance knowing that your automobile insurer will have your back.
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