SG v. Intact Insurance Company, 2018 CanLII 95561

Date: 2018-02-28

Tribunal File Number: 17-002640/AABS

Case Name: 17-002640 v Intact Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

SG

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Darcy Romaine, Counsel

For the Respondent: Jocelyn Tatebe, Counsel

HEARD: In Writing on February 8, 2018

OVERVIEW

1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) to determine an insured person’s entitlement to statutory accident benefits.

2SG (“the applicant”) was involved in an incident on April 11, 2014 (“the incident”). The applicant was a pedestrian who was struck in the right eye and blinded by an egg that was thrown from a passing motor vehicle. The vehicle’s occupants are unidentified.

3The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'') and commenced her appeal when her claim was denied by her insurer (“the respondent”).

4The respondent denied the applicant’s claim, asserting that the incident was not an “accident” within the meaning prescribed by the Schedule.

5If the respondent is correct, then:

a. The applicant’s injuries and her claim for benefits are not governed by the Schedule; and

b. I must dismiss the applicant’s claim.

6If I find that the respondent is incorrect, then I will order that the matter proceed to a case conference to discuss settlement of the applicant’s claims, and if necessary to determine the details of a hearing in this matter.

PRELIMINARY ISSUE

7Did the incident for which benefits are claimed constitute an “accident” as defined by the Schedule?

FINDINGS

8The incident in this case is not an accident as defined by the Schedule.

9The applicant’s appeal is denied.

REASONS

Definition of “Accident” in the Schedule

10Section 2.(1) of the Schedule prescribes that the benefits it sets out “shall be provided […] in respect of accidents occurring on or after September 1, 2010.”

11Section 3.(1) of the Schedule defines “accident” as an “incident in which the use of an automobile directly causes an impairment. […]”

12The Schedule does not say that the automobile must be the exclusive cause of the injury, only that it must be a direct cause.

13The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 set out a two-part test for determining whether an incident constitutes an “accident” under the SABS; in order to establish coverage, the claimant must satisfy both:

i. the “purpose test”: did the incident arise out of the use or operation of an automobile?, and

ii. the “causation test”: did such use or operation of an automobile directly cause the impairment? ²

14The parties agree that the purpose test has been met in this case.

15I will proceed to determine whether the causation test has been met in this case.

16To determine the causation test, I will follow the courts and frame the direct causation test as follows:

i. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the ‘ordinary course of things’? In that sense, can it be said that the use or operation of the vehicle was a ‘direct cause’ of the injuries?

ii. “Dominant feature”, or whether the use or operation of the automobile was the primary cause of the impairment. ?³

iii. It is not enough to show that an automobile was involved in the incident giving rise to the impairment, rather the use or operation of the automobile must have directly caused the injury.⁴

Was the automobile in this incident a direct cause of the applicant’s injuries?

17The respondent contends that the applicant’s injury was caused by an assault. The incident was reported and recorded as such by local police. The applicant’s submission refers to the automobile’s occupants as “assailants”.

18The applicant proposes a novel theory in which the automobile in this incident is an integral, essential and inseparable part of the assault which injured her. She argues with evidence from a biomechanical engineer that the moving car imparted a high kinetic energy to the thrown egg, resulting in an injury that would have been less likely or less severe than had the egg been thrown by a pedestrian.

19The applicant's injury and its severity are acknowledged by the respondent, as is the possibility that the harm was exacerbated by launching the egg from a moving car. These facts, however, do not help me to determine that the incident was an accident rather than an assault.

20I find the applicant's theory and supporting argument to be unpersuasive in determining the issue before me because:

i. In my view, the applicant’s argument makes the car a part of the weapon used to assault her -- like the string on a bow. There were no cases in the submissions in this matter in which an accident involved a car used as a weapon in a deliberate assault. The case law is that where an incident involves criminal activity, an "accident" is only found where the injury caused or exacerbated by the car was inadvertent.⁵

ii. Her case fails to address the egg-throwing as an intervening act unrelated to the ordinary use and operation of an automobile. Attacking people is not the ordinary use and operation of a vehicle.

iii. The use of a car as a situs or platform and escape vehicle in an assault does not make an assault an accident.⁶

iv. In cases where an incident involving assault were held to include an accident, it was clear that acts of assault were distinguished from inadvertent contact between a car and the victim. For example, in one case, a rock or piece of cement thrown from a car and a beating were not an accident, but a strike on the victim by the car as the assailants fled the scene was.⁷

v. Clearly, an "incident" may involve a train of events that include both assault and accident. That does not validate the applicant's theory that assault does not preclude accident. If specific acts within an incident are distinct and severable, acts of assault are not accidents.⁸

21The applicant argues that an accident occurs when an automobile makes an injury worse, citing the Court of Appeal in Dittmann⁹. In Dittmann, the applicant was badly burned when she accidentally dumped a cup of coffee onto her lap. The court ruled that the incident was an accident, and cited the seatbelt and shoulder straps as exacerbating factors.

22The applicant contends that her evidence, which shows that the automobile’s speed made the injury from the thrown egg worse, should lead me to conclude that the incident was an accident in the context of an accident benefits claim.

23I do not find Dittmann instructive in this case because it is distinguishable:

i. There was no assault in the case, and no intervening act contributing to the injury. The applicant dropped the coffee on herself while operating her car.

ii. The court observed that the car was being used and operated for an ordinary purpose, which it ruled includes fetching coffee from a drive-through service.

iii. The operation of the car itself was a dominant cause of the injury -- the errand itself, and – as the court observed -- the fastened seatbelt and shoulder harness, parts of the vehicle itself, were found to have exacerbated the applicant’s injury.

iv. Nothing in Dittmann contradicts or conflicts with case law on assault, intervening acts or dominant cause as factors in determining whether an incident is an accident.

24I find that that the incident was not an accident within the meaning of the Schedule, for the following reasons:

i. The case law is settled that an assault committed on or by a driver or occupant of an automobile is not an “accident” as defined in the Schedule unless the automobile was the instrument of injury (it struck the victim) or the assault caused an automobile to lose control resulting in injury to the victim (e.g. violent swerving, a crash or a collision).¹⁰

ii. The respondent’s evidence is that within the body of cases involving assault and accident benefits claims, none of the ones in which applicants have sustained injuries as a result of objects being thrown at or out of motor vehicles were found to be "accidents." I find this evidence to be accurate and persuasive.

iii. I agree with the respondent argues that the act of assault, the throwing of an egg by an occupant of the automobile, was an independent and intervening act. In two persuasive cases, impairments from the impact of projectiles thrown from vehicles were determined to be the result of assaults. The assaults in turn were found to be independent and intervening acts – not the result of the use or operation of a vehicle or the risks associated therewith.¹¹

iv. I agree with the respondent that similar-fact cases illustrate that the assault and not the operation of the vehicle in this incident was “dominant cause” of the applicant’s impairment. For example, where impairment was caused by a bottle thrown from a truck, the dominant character of the incident was found to be that of an assault, not an accident.¹²

CONCLUSIONS

25The incident in this case is not an accident as defined by the Schedule.

26The applicant’s appeal is denied.

Date of Issue: February 28, 2018

___________________________

Christopher A. Ferguson

djudicator

Footnotes

1. 1O.Reg. 34/10
2. 2Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (ONCA), para. 11, submitted by both parties.
3. 3ibid, para.36, – see also Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, submitted by the respondent
4. 4Downer v. Personal Insurance Company, 2012 ONCA 302 para.39
5. 5Golizadeh and the Motor Vehicle Accident Claims Fund (April 20, 2017, Appeal PlS-00030), see also Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617, para.5
6. 6CGU, Lombard General Insurance and Liu, (2004 FSCO Appeal P02-00030)
7. 7Golizadeh (see footnote 5)
8. 8Citadel Insurance Co. v. Vytlingam and Insurance Bureau of Canada [2007] 3 S.C.R.
9. 9Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617, para.5
10. 10CGU Insurance Company and Irving (2004, FSCO Appeal P03-00022), at page 11
11. 11CGU Insurance Company and Irving (2004, FSCO Appeal P03-00022) and Kennedy and Gore Mutual Insurance Company (2009, FSCO A07-002444)
12. 12CGU Insurance Company and Irving (2004, FSCO Appeal P03-00022)