Neutral Citation: 1997 ONICDRG 100

OIC A96-001436

ONTARIO INSURANCE COMMISSION

BETWEEN:

ADUGNA WUBBIE

Applicant

and

NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD'S

Insurer

DECISION ON A PRELIMINARY ISSUE

Issues:

Mr. Adugna Wubbie was stabbed by a passenger while driving his taxi cab on May 30, 1995. He applied for statutory accident benefits from Non-Marine Underwriters, Members of Lloyd's ("Lloyd's"), payable under the Schedule¹ Lloyd's refused to pay him accident benefits on the basis that he was not injured as a result of an accident. The parties were unable to resolve their dispute through mediation, and Mr. Wubbie applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Was Mr. Wubbie injured as a result of an "accident" as defined in section 1 of the Schedule?

Mr. Wubbie also claims his expenses incurred in the hearing.

Result:

1. Mr. Wubbie was injured as a result of an "accident" as defined in section 1 of the Schedule.

2. Mr. Wubbie is entitled to his expenses in this arbitration.

Hearing:

The hearing proceeded by way of written submissions which were received from the parties on April 15, and 29, 1997. Further submissions were received on May 13, 15, and 16, 1997 and submitted to me, Joyce Miller, Arbitrator.

Mr. Wubbie's Representative:

Betsy R. Kane Barrister and Solicitor

Lloyd's Representative:

Brian Ward Barrister and Solicitor

Graeme Mew Barrister and Solicitor

Preliminary Ruling:

Ms. Kane, counsel for Mr. Wubbie, wrote to the Commission on May 1, 1997 and submitted that I should not consider Lloyd's submissions because they were sent in late.

For the following reasons, I have accepted and considered Lloyd's submissions in my decision.

In a letter to the parties dated March 4, 1997, the pre-hearing arbitrator stated that "Written Submissions shall be prepared, exchanged and forwarded to the Commission together with the Agreed Statement of Facts, on or before April 11, 1997."

Generally, when submissions are presented by one party, a certain amount of time is given to the other party to respond to those submissions. It appears that the pre-hearing arbitrator assumed that the parties would agree on the dates and that they would have completed the exchange of submissions by April 11, 1997, but that does not seem to have happened. Mr. Wubbie's submissions, dated April 11, 1997, were received by the Commission on April 15, 1997. Presumably, Lloyd's received the submissions at about the same time. Lloyd's response was faxed to Mr. Wubbie and the Commission on April 29, 1997.

I do not find that approximately two weeks was an unreasonable amount of time to respond to Mr. Wubbie's submissions. Accordingly, I accepted and considered Lloyd's submissions in making my decision.

Introduction

Mr. Wubbie, a taxi driver, was injured in his car when a passenger stabbed him. The issue I must decide is whether his injuries were caused directly or indirectly, by the use or operation of an automobile so as to constitute an accident pursuant to section 1 of the Schedule.

The hearing proceeded by way of an Agreed Statement of Facts attached as Appendix A to this decision. The Agreed Statement of Facts contains a considerable amount of information irrelevant to this preliminary issue. Therefore, I have limited my consideration of the facts to its first seven paragraphs which I have briefly summarized as follows:

On May 30, 1995 at about 3:20 a.m. Mr. Wubbie picked up a fare and drove him to his destination, which turned out to be a dead end street. On arrival Mr. Wubbie put his car in park. The "vehicle remained running" with the keys in the ignition. Mr. Wubbie was strapped in his seat belt with his left hand on the steering wheel waiting to be paid his fare when the passenger reached forward and attempted to retrieve Mr. Wubbie's wallet from his pocket. "At the same time, the passenger stabbed Mr. Wubbie on the left forearm, [and] put his left hand over Mr. Wubbie's mouth. The passenger stabbed Mr. Wubbie three times on his forearm and ... three times in the web of his left hand between his index finger and thumb. Mr. Wubbie's right index finger was also cut. Mr. Wubbie also sustained a head wound where a piece of the knife used by the passenger was lodged in his head."

Mr. Wubbie managed to undo his seat belt, extricate himself from the car and obtain help in a nearby house. When the police arrived at the scene, the keys were in the ignition and the car was still running. The passenger had fled. The vehicle had blood stains on both the front and back seats.

The Law:

(1) Section 1 of the Schedule

To qualify for benefits Mr. Wubbie must establish, on a balance of probabilities, that he was injured as a result of an accident as defined in section 1 of the Schedule² Specifically, Mr. Wubbie must establish that his injuries are as a result of an "incident" that involved the use or operation of an automobile, and the use or operation of that automobile caused his injuries, directly or indirectly.

The parties agree that when Mr. Wubbie was injured he was seated in the front seat, strapped into his seat belt and the car was still running. Lloyd's, however, disputes that Mr. Wubbie's injuries were directly or indirectly caused by the use or operation of his automobile.

The definition of "accident" under Bill 68³ has been the subject of three recent appeal decisions: Vineski,⁴ Hanlon,⁵ and Overley.⁶ In these decisions, the Director's Delegates undertook an in-depth analysis of the wording of the definition. I find that the significant phrases in the definition of "accident" under Bill 68 are the same under Bill 164. Therefore, I refer to and rely on their analyses to support my conclusion.

(2) The Test in Amos

The leading court case on what constitutes an "accident" under a no-fault regulatory scheme is Amos v. Insurance Corp. of British Columbia,⁷ a decision of the Supreme Court of Canada.

In Amos, a group of men tried to gain entry to Mr. Amos' van while it was proceeding along the road. In attempting to drive away from the men, Mr. Amos was shot and seriously injured.

The issue in the Amos case was whether the Insurance Corporation of British Columbia was required to pay Mr. Amos benefits under section 79(1) of the no-fault regulatory scheme. This section states that: "... the corporation shall pay benefits to an insured in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle ..."

After setting out a "two-part test to be applied in interpreting this section," the court concluded that Mr. Amos' injuries were caused by an accident arising out of the ownership, use or operation of his van. Accordingly, he was entitled to benefits from the Insurance Corporation of British Columbia.

The two-part test is as follows:

1. Did the accident result from the ordinary and well-known activities to which automobiles are put? [the purpose test]

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous? [the causation test]

This two-part test was considered and adopted in the Director's Delegates decisions in Vineski, Hanlon, and Overley.

In Hanlon, Director's Delegate David Draper found that the phrase "causes, directly or indirectly" in section 2⁸ of the Schedule has a narrower focus than the phrase "arising from" in section 79(1) which the Supreme Court was interpreting in Amos. Nevertheless, he found that "... the retention of the causation test in the second part of the Amos test [was] relevant..." to the analysis in the Hanlon case.

In Royal Insurance Co. of Canada v. Guardian Insurance Co. of Canada,⁹ a recent case of the Ontario Court, General Division, Mr. Justice Macdonald noted the differences in the wording of the sections. Nevertheless, he agreed with and adopted the test in Amos.

In deciding whether Mr. Wubbie was injured as a result of an accident as defined in section 1 of the Schedule, I conclude I must follow the two-part test in Amos.

Analysis and Findings:

(1) The Purpose Test

In determining whether Mr. Wubbie was injured as a result of an accident, the first question I must answer is: "Did the accident result from the ordinary and well-known activities to which automobiles are put?"

In the case of Portch¹⁰ the applicant, a tractor-trailer driver, was injured while preparing to unload his truck. In that case Arbitrator Draper found that the applicant's activities fell"... within the 'ordinary and well-known activities' to which a truck and trailer is put." Arbitrator Draper commented that:

Clearly, "use or operation" extends well beyond driving the vehicle. Injuries resulting from discharging gasoline from a tanker truck (Stevenson), draining or syphoning gasoline from a vehicle (Pioneer Grain and Shelton), and drilling a hole in the trunk of an automobile to connect wires to a trailer (Gramak), have all been found to arise from the "use or operation" of an automobile.

In Vineski, Director's Delegate Susan Naylor upheld the Arbitrator's finding that starting a car engine in itself "... constitutes use or operation of an automobile, even if the vehicle did not actually move." Director's Delegate Naylor noted that "[t]he phrase 'use or operation' of an automobile has been given broad applications" and cites with approval the same examples that were mentioned above in the Portch case.

In Royal Insurance Co. Of Canada, the plaintiff was injured when a forklift was unhitched from a truck and rolled down a hill crushing him. Mr. Justice Macdonald held that the injuries arose from the use or operation of the truck. In arriving at this conclusion, Mr. Justice Macdonald asked whether the 'activity' was "one of the ways in which a service may be provided by an automobile, on a common sense basis ... or an integral and necessary part of accomplishing the truck's purpose."

Succinctly, these cases stand for the proposition that "use or operation" of a vehicle involves more than the simple act of driving it. The range of activities that a vehicle can engage in are quite broad. The key is whether the activity has a common sense basis connected with its ordinary usage.

In this case, Mr. Wubbie was transporting a paying passenger in his taxi cab from one place to another. Clearly, common sense dictates that transporting people from one place to another is one of the most ordinary and well-known activity to which automobiles are put.

Accordingly, I find that at the time of the stabbing incident, Mr. Wubbie was engaged in the ordinary use and operation of a motor vehicle. He, therefore, satisfies the first part of the two-part test.

2. The Causation Test

The second question I must answer in determining whether Mr. Wubbie was injured as a result of an accident is whether there is some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between Mr. Wubbie's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

In Vineski and Hanlon, Director's Delegates Naylor and Draper, each undertook an in-depth analysis of the phrase "causes, directly or indirectly." In Hanlon, Director's Delegate Draper agreed with the analysis in Vineski and incorporated it into his decision. He stated that:

In my view, the phrase ["causes, directly or indirectly"] demands a causal relationship between the incident involving the use or operation of an automobile and the person's injuries, a narrower focus than an accident arising from the ownership, use or operation of a vehicle. Although the addition of "indirectly" may take the analysis beyond proximate cause, a causal relationship still must be found. I agree with the following analysis of Director's Delegate Naylor in Vineski and Federation Insurance Company of Canada, (October 18, 1996, OIC P96-000034):

I conclude that the phrase "causes, directly or indirectly" takes us somewhat beyond a strict analysis of the doctrine of proximate cause, as suggested in Coxe and the Royal Trust. It allows for consideration of a more remote causal link. However, the link cannot be so remote as to deprive the word "causes" of meaning. As I stated in Ekunah and Simcoe & Erie General Insurance Company, (April 22, 1996, OIC P-003550), it is not enough to show that an automobile was merely the location of the injury, that the injured person was occupying it at the time or that an automobile was involved in some peripheral or incidental way. The use or operation of an automobile must have caused the injuries whether directly or indirectly. To determine this, paraphrasing Voisin, the role of the automobile in the whole scenario must be considered.

In Vineski, the Applicant was riding his bike when he heard the sound of a car starting. He looked back to see where the sound of the car was coming from and rode into a pothole. The front wheel of his bike twisted, snapping the bolts, causing him to fall and injure himself.

The Arbitrator concluded that in the Agreed Statement of Facts the Insurer agreed "... that the Applicant heard a car engine being started, looked around to locate the car, and in the process failed to see the approaching pothole." Director's Delegate Naylor upheld the Arbitrator's findings that this was an "accident" within the meaning of the Schedule; it was an incident in which the use or operation of an automobile caused his injuries, directly or indirectly.

In my view, Vineski suggests that if there is an indirect or direct causal link between a person's injury and the use and operation of a motor vehicle, a person need not be in, or touched by a vehicle for an accident to have occurred. This is in keeping with the reasoning in Amos where the Court held that "... a motor vehicle need not be the instrument of the injury to satisfy the causal connection requirement."

Both the Hanlon and Overley cases dealt with assaults that had occurred after there had been a collision between two vehicles. In Hanlon, Director's Delegate Draper agreed with the Arbitrator's findings that the assault by one driver on the other driver, following a collision between their two vehicles, was not an "accident." In Overley, he disagreed with the Arbitrator's findings that an assault of a passenger sitting in a vehicle after that vehicle had collided into another vehicle was an "accident" pursuant to section 2¹¹ of the Schedule.

In Overley, after the collision, the driver of the vehicle that was hit, first assaulted the driver of the vehicle that hit his car and then opened the passenger door of the other vehicle and assaulted Mr. Overley. Director's Delegate Draper found that the "...ongoing connection between the vehicle and the assault [was] lacking in this case." In coming to his conclusion, he relied on his decision in Hanlon where he stated:

"Cause" has an instrumental aspect that is lacking here. The incident involving the use or operation of an automobile ended with no one being injured. No further consequences were inevitable or linked to any ongoing use or operation of an automobile. Sometime later, in a location removed from the "incident," there was a verbal confrontation between the two men outside their vehicles. At that point, Mr. Daly attacked Mr. Hanlon. No automobile was the target of the attack, was used in the attack or contributed to Mr. Hanlon's injuries. I conclude that, like in Alchimowicz, the connection between the use or operation of the automobile and the injury is not sufficient to be covered by automobile insurance.

In its submissions Lloyd's relied on the appeal cases of Hanlon and Overley to support its position that Mr. Wubbie's injuries were caused by an assault and not by the use and operation of a motor vehicle.

I agree, however, with Mr. Wubbie's submissions that the Hanlon and Overley cases can be distinguished from his case. Unlike Hanlon and Overley, where the collision between the motor vehicles had ended with no one being injured before the applicants were assaulted, the attack on Mr. Wubbie was integral to the use and operation of the taxi cab. There was no intervening act, outside the use and operation of the taxi cab which broke the chain of causation.

The Agreed Statement of Facts shows that the stabbing incident took place while Mr. Wubbie was carrying on the normal activities of a taxi cab driver. Mr. Wubbie was driving his fare to a destination. When he arrived at the destination, the car was still running, and Mr. Wubbie was sitting in the front seat, strapped into his safety belt, waiting to be paid when he was stabbed. There was no intervening event that took place outside the purview of the activities normally associated with operating a taxi cab.

I find that Mr. Wubbie was assaulted while carrying out the normal activities of a taxi cab driver. The connection between the assault and Mr. Wubbie's operation of the taxi cab was never interrupted. Unlike the Hanlon and Overley cases, there was an ongoing connection between the "use and operation" of the vehicle and the assault. The taxi cab was not merely the site of the attack. Mr. Wubbie was strapped into his seat and unable to escape. The taxi cab was used in the attack and contributed to Mr. Wubbie's injuries.

I, therefore, find that there was a direct causal link between the use and operation of Mr. Wubbie's taxi cab and the injuries he received. Accordingly, I find that Mr. Wubbie has satisfied the second part of the two-part test.

Conclusion:

In Amos, the Court concluded that the shooting of the driver was not "a typical motor vehicle accident. A bullet rather than a motor vehicle, was the cause of the injury." The Court then went on to say that, "... a motor vehicle need not be the instrument of the injury to satisfy the causal connection requirement. Injuries which do not arise from the negligent use of a motor vehicle may be covered [by the no-fault regulation]".

It appears to be counter-intuitive to say that shooting a driver in a motor vehicle is an accident. Nevertheless, according to Amos, if the two-part test is satisfied, it can be considered an accident.

The facts in this case, like the facts in Amos, would not generally be considered a typical motor vehicle accident. However, Mr. Wubbie has successfully satisfied the two-part test in Amos. This test has been followed by the General Division Court in Ontario as well as a number of OIC appeal decisions. Although I find that the Amos case considerably broadens the scope of what has been usually considered to be an automobile accident I am, nevertheless, bound to follow the two-part test in Amos.

For all of the above reasons, I find that Mr. Wubbie has established on a balance of probabilities that his injuries were caused directly by the use and operation of his taxi cab. Accordingly, I find that Mr. Wubbie was injured as a result of an "accident," as defined in section 1 of the Schedule.

Expenses:

I exercise my discretion to award Mr. Wubbie his expenses under section 282(11) of the Insurance Act.

Order:

1. Mr. Wubbie is entitled to proceed to arbitration on his application for accident benefits as he was injured as a result of an "accident" as defined in section 1 of the Schedule.

2. Lloyd's is ordered to pay Mr. Wubbie his expenses in this arbitration.

June 13, 1997

Joyce Miller Arbitrator

Date

APPENDIX

The parties agreed to proceed based on the following Agreed Statement of Facts:

On May 30, 1995 at approximately 3:20 AM, Adugna Wubbie was operating a Capital Taxi Cab no: 216. The taxi was a 1987 Oldsmobile Cutlass station wagon, black in color bearing Ontario license plate no: 637 KDA. At the time of operating the vehicle, Mr. Wubbie was employed by the Capital Taxi plate owner, Melhem Nehme Rahme. Mr. Rahme was at all times insured by Non-Marine Underwriter, Mbrs. Of Lloyd's of London, policy no: 857-2079.

Mr. Wubbie picked up a fare on the Cummings Bridge in the City of Ottawa. The passenger asked him to take him to the corner of Montreal Road and Lafontaine Street. He proceeded in that direction and when he reached this intersection, the passenger asked him to take him to the corner or [sic] Lola Street in the City of Ottawa. When he arrived at this second destination, the passenger instructed him to drive to the end of Presland Street which is a dead end street. The end of Presland street is at the Vanier Parkway.

Once Mr. Wubbie had arrived at the final destination at the end of Presland Street (corner Vanier Parkway), he placed the vehicle into the parked position and awaited payment of the allotted fare by the passenger. At the time of awaiting payment, Mr. Wubbie was wearing his seat belt. The keys of the vehicle were in the ignition and the vehicle remained running as he awaited the passenger to pay the fee indicated on the meter.

When Mr. Wubbie stopped the vehicle at the dead end street he was sitting with my [sic] left hand on the steering wheel. The passenger then reached forward and attempted to go through Mr. Wubbie's pockets and he was successful in retrieving his wallet. At the same time, the passenger stabbed Mr. Wubbie on the left forearm, he also put his left hand over Mr. Wubbie's mouth. The passenger stabbed Mr. Wubbie three times on his forearm and also stabbed him three times in the web of his left hand between his index finger and thumb. Mr. Wubbie's right index finger was also cut. Mr. Wubbie also sustained a head wound where a piece of the knife used by the passenger was lodged in his head.

While Mr. Wubbie was being stabbed he attempted to extricate himself from the vehicle. He was successful in undoing his seat belt and in fleeing the vehicle to obtain help. Mr. Wubbie left the vehicle while the vehicle was still running. The passenger fled the vehicle and Mr. Wubbie lost sight of him.

Mr. Wubbie went to some houses along Presland Street to obtain assistance. A resident of one of the homes called the police while Mr. Wubbie waited on the steps of the house for the arrival of the police.

At approximately 3:45 AM the police arrived at the scene of the accident. When they arrived, they found the keys in the ignition of the vehicle and the vehicle was still running. An ambulance also arrived at the scene and Mr. Wubbie was taken to Ottawa General Hospital for the treatment of his injuries. Mr. Wubbie learned that the vehicle was subsequently towed to the police station for examination and investigation. Further following this, Mr. Wubbie was advised that the vehicle was towed to an auto garage for cleaning and repair. The vehicle had blood stains on both the front and back seats of the vehicle.

Mr. Wubbie remained in hospital for one night. His wounds were sutured and he was given pain killers. He was subsequently treated by his family physician, Dr. Elaine Taylor. He went to [sic] for physiotherapy for the treatment of his left arm for approximately 3 months.

Mr. Wubbie suffered and continues to suffer from numbness in his whole left arm and hand. Often his hand and arm go limp and he continues to suffer a lot of residual pain from the injuries. Mr. Wubbie has and continued to suffer a lot of residual pain in his day to day movements. Any contact with his forearm involves a burning or stinging sensation. Mr. Wubbie have [sic] been informed by the treating physicians that he suffered permanent nerve damage in his left arm and hand and will always experience [sic] from a sensory nerve disorder.

Since the accident, Mr. Wubbie has experienced recurrent nightmares of the incident and continues to ruminate about the incident.

Since the date of the accident, Mr. Wubbie experienced a fear of driving. He does not like to drive and he fears anyone sitting behind him in a motor vehicle. Mr. Wubbie does not think he could return to work as a taxi driver.

Mr. Wubbie has also experienced a fear of knives since the date of the accident. Even in preparing foods with the use of a knife or seeing other [sic] do so, Mr. Wubbie begins to think of the accident.

Mr. Wubbie has not seen a psychologist other than for an initial assessment of his psychological state. Mr. Wubbie has also been diagnosed as suffering from Post Traumatic Stress Disorder and a driving phobia. He has also experienced a loss of enjoyment of life since the accident. His physical lifestyle has changed substantially since the date of the accident. Prior to the accident, Mr. Wubbie was very active and athletic. Mr. Wubbie has not enjoyed the same lifestyle since the accident.

Prior to his accident, Mr. Wubbie has not had previous injuries or car accidents. He has not had an accident benefit claim before. Mr. Wubbie has not had any previous psychological, physiotherapy or chiropractic treatments before.

All of Mr. Wubbie's clothing which he wore at the time of the accident was damaged by blood stains.

March 24, 1997

Adugna Wubbie

"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment.... "impairment" is defined as "a loss or abnormality of psychological, physiological or anatomical structure or function;

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury ...

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2The term "accident" is defined in section 1 of the Schedule as follows:
3. 3The term "accident" is defined in section 2 of Bill 68 as follows:
4. 4Vineski and Federation Insurance Company of Canada (October 18, 1996), OIC P96-000034
5. 5Hanlon and Guarantee Company of North America (March 18, 1997), OIC P95-00003
6. 6Overley and Co-operators General Insurance Company (March 20, 1997), OIC P96-00043
7. 7(1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618
8. 8See footnote 3, supra
9. 9(1995) 1995 CanLII 7228 (ON CTGD), 26 O.R. (3rd) 290, Ontario Court (Gen. Div.)
10. 10Portch and Markel Insurance Company of Canada and Royal Insurance Company of Canada (March 20, 1995), OIC A-007701 and A-008360.
11. 11See footnote 3, supra