Neutral Citation: 2009 ONFSCDRS 37 FSCO A07-002444

BETWEEN:

MYRA KENNEDY Applicant

and

GORE MUTUAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Joyce Miller Heard: January 28, 2009 by teleconference Appearances: Lucianna Saplywy for Ms. Kennedy Philippa Samworth for Gore Mutual Insurance Company

Issues:

The Applicant, Myra Kennedy, alleges she was injured in a motor vehicle accident on June 14, 2007. She applied for and received statutory accident benefits from Gore Mutual Insurance Company ("Gore Mutual"), payable under the Schedule.¹ Gore Mutual denied her claim for benefits on the basis that she was not involved in a car accident. The parties were unable to resolve their disputes through mediation, and Ms. Kennedy applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Was Ms. Kennedy injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Result:

Ms. Kennedy was not injured as a result of an "accident" as defined in section 2(1) of the Schedule.

Preliminary Matter

At the commencement of the hearing, I was asked by Ms. Kennedy to make an order for the production of the Niagara Regional Police Service file in respect of the incident of June 14, 2007. Ms. Carol Berry, Central Records Manager of Niagara Regional Police Service, was summoned by Ms. Kennedy to produce the file. She was in attendance at the hearing and was represented by Monique Atherton, an articling student, for the Niagara Regional Police Service.

Ms. Atherton submitted that Niagara Regional Police Service had no objection to providing the requested document as long as the personal information of the minor involved in the incident of June 14, 2007 would be redacted.

Both Ms. Kennedy and Gore Mutual agreed to this request. Accordingly, I ordered that the Niagara Regional Police Service file be produced with the personal information of the minor redacted.

EVIDENCE:

The parties presented an agreed statement of facts which is reproduced in part below:

On June 14, 2007, Ms. Kennedy was driving home from work as the sole occupant of her vehicle traveling north on Louth Street in St. Catharine's, Ontario south of Rykert Road.
At approximately 3:15 p.m., Ms. Kennedy was stopped at a red light beside a yellow Laidlaw school bus with her driver's side window partially rolled down. At that time, she was struck by a piece of [fruit]² thrown through her window from an open window on the bus. The [fruit] was apparently thrown by an 11-year old boy on the school bus.
At the time Ms. Kennedy was struck by the [fruit], her vehicle was stopped at the red light and was not in motion.
The [fruit] struck Ms. Kennedy on the left side of the head and she describes feeling a cold wet splatter.
Following the incident, Ms. Kennedy noticed children in the bus laughing and bits of [fruit] on her. Ms. Kennedy drove ahead a few feet and attempted to attract the attention of the bus drive. She turned off her ignition, stopping her car in traffic and got out of the car.
The bus driver opened the door to the bus and Ms. Kennedy entered the first step of the bus. She told the driver she had been struck on the side of the head with what she thought was a piece of [fruit]. The driver reportedly asked the children on the bus whether or not any of them had thrown anything at her. Ms. Kennedy yelled at the children.
As a result of the incident, Ms. Kennedy claims she has suffered injuries including lumbar and thoracic strains, dizziness, a temporarily lazy left eye, sleep disturbance, fatigue, inattentiveness, headaches, difficulties with concentration, difficulty with word finding, balance problems, mood disturbance, anxiety, post-traumatic stress and irritability and anger.
Ms. Kennedy has made a claim for accident benefits to Gore Mutual Insurance in respect of the incident on June 14, 2007, consisting of claims for income replacement benefits, medical benefits and the cost of examinations under sections 4, 14 and 24 of the Schedule respectively.

SUBMISSIONS

Ms. Kennedy's Submissions

Ms. Kennedy submits that at the time of the incident she was operating her car while in the ordinary use and operation of a vehicle, namely, she was driving home from work and stopped at a red light. Accordingly, she submits, she meets the purpose test, the first of the two-part test enunciated in the Court of Appeal decision in Greenhalgh v. ING Halifax Insurance Co..³

Ms. Kennedy further submits that she meets the second part of the test in Greenhalgh, the causation test. Ms. Kennedy submits that her impairment was directly caused by the use and operation of a motor vehicle, namely, the school bus.

Ms. Kennedy submits that the bus driver's use and operation of the bus included delivery of students to and from school and monitoring his load of students. She submits that the dominant feature of the incident in this case is that the bus driver failed to properly operate his bus and carry out all of the responsibilities that came with his position, thereby allowing a child to act in a dangerous way. She submits that the bus driver's actions and the manner in which he operated the bus set in motion that chain of events that led to Ms. Kennedy's impairment. Accordingly, Ms. Kennedy submits that there is a direct connection between the operation of the bus, and the fact that that the fruit was thrown and hit Ms. Kennedy causing an impairment.

In response to the Insurer's position that Ms. Kennedy was a victim of an assault and not a car accident, Ms. Kennedy submits that the act of throwing the fruit was that of a child and accordingly, he cannot be charged with an assault because he does not have the moral development to form the same intention as an adult or even a teen.

Gore Mutual's Submissions

Gore Mutual submits that the incident which occurred on June 14, 2007 was an assault and not an accident as defined in section 2(1) of the Schedule. Gore Mutual submits that the law is clear that when an assault is committed by a driver or occupant of an automobile it is not an accident unless the vehicle itself is the instrument of the injury, such as a car running down a person.

Gore Mutual submits that the dominant feature of this incident is the fruit and not the car or the bus. The fruit is the direct cause of the injury. Had the eleven year old boy shot a gun there would be no difference than the throwing of the fruit. The fruit is a new and intervening event.

Gore Mutual submits that there is no direct relationship between the bus or car and the injury, both are merely the situs or location of the incident. Both the car and bus were stopped at a red light. As a result of the fruit hitting her, Ms. Kennedy did not lose control of her vehicle. The vehicle remained stopped.

In response to Ms. Kennedy's submission that the eleven year old boy was too young to be charged with assault, Gore Mutual submits no law was presented to support this position. In addition, the Niagara Regional Police Service document shows the contrary.

Gore Mutual submits that Ms. Kennedy is trying to create a red herring by suggesting the potential negligence of the bus driver should be considered as to whether or not the incident is an accident. Gore Mutual submits there is no evidence presented as to what the bus driver did or did not do in terms of supervision. Moreover, Gore Mutual submits, even if this was relevant, which it does not admit, there is no evidence to suggest that the bus driver was not supervising the children, as we do not know the circumstance of what was going on in the bus.

In support of its position that the incident in this case was an assault and not an accident, Gore Mutual relies on a number of arbitration decisions, some of which will be referred to in my findings below.

The Law

Subsection 2(1) of the Schedule, which was enacted on November 1, 1996, defines "accident" as follows:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Prior to November 1, 1996, the definition was more expansive in that it encompassed impairments caused "indirectly or directly" by the use or operation of an automobile. The post-November 1996 definition limited the definition to "directly causes."

In the Court of Appeal decision of Chisholm and Liberty Mutual Group,⁴ Justice Laskin clearly confirms that the new definition of "accident" significantly narrows the scope of what can be considered an accident, in comparison to the definition prior to November 1996.

A leading arbitration case in interpreting the revised definition of an accident is Petrosoniak and Security National Insurance Company.⁵ In that case, Arbitrator Novick found that the deletion of the word "indirectly" from the definition now, required that there be a direct link between the circumstance that caused an injury and the incident. In interpreting the new definition of "accident," Arbitrator Novick adopted the definition of "direct cause" found in Black's Law Dictionary where the phrase was defined as:

... the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source. [emphasis omitted]

This interpretation of "directly causes" has been consistently adopted by both arbitrators and judges in interpreting the post-November 1996 definition of "accident."

A number of arbitration cases have discussed the new definition in depth and its effect on the concept of what is an "accident" post-November 1996. I have relied on them and the Chisholm case to extract the following propositions applicable to dealing with the issue of what is an "accident" pursuant to subsection 2(1) of the Schedule. These are:

The use or operation of a motor vehicle must directly cause the impairment.⁶
A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.⁷
Direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim's injuries, and one of the direct causes must be the use or operation of a motor vehicle.⁸
The motor vehicle need not come into direct physical contact with the accident victim.⁹
The role played by the motor vehicle must be more than just the location, opportunity or motive.¹⁰
The motor vehicle must be a dominant feature in the incident, and not ancillary to it.¹¹
Time, proximity, activity and risk are factors that are relevant in determining the causal connection between the use or operation of the automobile and the loss.¹²
The injury must be a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.¹³

ANALYSIS AND FINDINGS

The burden of proof rests with Ms. Kennedy to show on a balance of probabilities that she was involved in a car accident on June 14, 2007. For the following a reasons I find that Ms. Kennedy has not met her burden of proof.

The statement of facts states and I accept the fact that when the young boy threw a piece of fruit outside the window of the stopped school bus, Ms. Kennedy was seated in her car, stopped at a red light. I also accept the fact that when the fruit passed through the open window it hit Ms. Kennedy's head on the left side. The question to be answered is whether this incident can be considered an accident pursuant to the Schedule.

The Court of Appeal case Greenhalgh v. ING (supra) set out a two-part test to determine whether an incident meets the definition of accident as set out in the Schedule. The test consists of two questions:

(1) Did the incident arise out of the use or operation of an automobile? (the purpose test)

(2) Did such use or operation of an automobile directly cause the impairment? (the causation test)

For the following reasons, I find Ms. Kennedy has satisfied the purpose test, but has not met the causation test.

Ms. Kennedy established, and I agree, that when she was hit by the piece of fruit thrown through her window, she was engaged in the normal use and operation of an automobile, namely, sitting in the driver's seat of her automobile, stopped at the red light. However, on the facts of this case, I find that when Ms. Kennedy was struck by the piece of fruit thrown through her car window, her alleged impairment was not caused by the direct use and operation of a motor vehicle.

I give little weight to Ms. Kennedy's argument that the normal use and operation of the bus included the bus driver's supervision and care of the students on the bus and that his failure of his duty in supervising the young boy who threw the fruit was a direct cause of Ms. Kennedy's alleged impairment. Ms. Kennedy did not provide any evidence to support her allegation that the bus driver failed in any duty he had in respect of the use and operation of the bus that directly resulted in Ms. Kennedy's alleged injuries.

I find the dominant feature of this incident is the piece of fruit which struck Ms. Kennedy. I find that the stopped bus was the place from which the boy threw the fruit. The action of throwing the fruit into the car window could easily have taken place if the boy was standing on the street next to the car. Accordingly, I find that Ms. Kennedy's alleged impairment is as a result of an assault and not the use or operation of the bus. In this finding, I am supported by the case law.

In the case of Connors v. Kingsway¹⁴, a boy threw a ball of ice at a taxi, which caused the occupant passenger to strain her neck to avoid being hurt. The judge found that that the claimant's injuries were not directly caused by the use or operation of a motor vehicle, but as a result of an assault. At paragraphs 11 and 13 he states:

The test discussed in Greenhalgh v. ING is that one should look to "the aspect of the situation that most directly caused the injuries." In my view, it was the throwing of the ice which caused the respondent to twist her head in a reflex to avoid injury and thereby suffering neck spasm which would fit the test ...

In my view, the Legislature, under the 1996 amendment under review in this motion, did not intent [sic] automobile insurance to indemnify victims of assaults, notwithstanding that the assault may have occurred to a victim while engaged in the use or operation of a automobile. [sic]

In the case of Lombard General Insurance Company of Canada and Liu¹⁵, the Applicant-Respondent was assaulted while asleep on a bus which had been hijacked by thieves set out to rob the passengers. The Applicant made a claim for accident benefits on the basis that he was injured as a result of a car accident. The Director of Arbitrations overturned the Arbitrator finding that the bus was used to confine the passengers and rob them and that the Applicant's injuries were a direct result of the use and operation of a motor vehicle. He stated that "While a hijacking can involve the use or operation of an automobile, the hijacking itself is not a "use or operation of an automobile" that encompasses an assault. ... hijacking is not an ordinary and well-known activity to which automobiles are put."

The Director of Arbitrations went on to state: "The question is whether the use or operation of the automobile directly caused the impairment – was it an active, efficient cause that set in motion a train of events which brought about the impairment without the intervention of any source started and working actively from a new and independent source?" He concluded that in the Liu case it was the assault, not the use or operation of the automobile, that caused Mr. Liu's impairment. He stated that "where the impairment is caused by an assault, the assault will be treated as an intervening act and accident benefits will not be payable."

CONCLUSION

In summary, taking into consideration the above noted cases, on the facts of the present case, I find that Ms. Kennedy's alleged injuries were the result of an assault. I find there is no direct relationship between her alleged injuries and the bus. I find that the school bus was the place from which the assault was perpetrated and not the direct cause of her injuries. I find that the dominant feature of this incident is the piece of fruit that struck Ms. Kennedy and not the use or operation of the car or the bus.

Accordingly, I find that Ms. Kennedy was not injured as a result of the direct use and operation of a motor vehicle. Accordingly, I find that Ms. Kennedy was not injured as a result of an "accident" pursuant to section 2(1) of the Schedule.

EXPENSES:

If needed, I may be spoken to on the issue of expenses within 30 days of receipt of this decision.

March 26, 2009

Joyce Miller Arbitrator

Date

Financial Services Commission of Ontario