An assault on a driver is an accident for the purposes of entitlement to statutory accident benefits.

The plaintiff was injured when he was assaulted in his vehicle when he stopped for gas.  He made a claim for statutory accident benefits, but his insurer denied the claim on the basis that the injuries were not sustained in an “accident” within the meaning of the governing legislation.  The insurer brought an application for summary judgment and the application was dismissed.  The Court found the plaintiff's injuries were directly connected to the use and operation of his vehicle because they were caused by assailants whose purpose was to seize possession and control of the plaintiff's automobile from him. The assault was not random but arose out of his ownership, use and operation of his vehicle.

Downer v. Personal Insurance Co. [2011] O.J. No. 3806, August 23, 2011, Ontario Superior Court of Justice, J. C. Murray J.

While sitting in his parked vehicle at a gas station, the plaintiff was assaulted by three or four men.   The assailants tried to pull him from his car and the plaintiff tried to change gears to reverse out of the spot. One of the men tried to force the vehicle into park, before the plaintiff managed to reverse the vehicle. In the course of driving away, the plaintiff believes that he may have run over one of the assailants . As a result of the incident, the plaintiff asserts that he suffers from depression, anxiety, post-traumatic stress disorder, chronic low back pain, migraine headaches, anxiety, nervousness, and other ailments which impact upon his ability to function.

At the time of the incident, the plaintiff was insured with the defendant, the Personal Insurance Co. He claimed for benefits pursuant to the Statutory Accident Benefits Schedule (Ontario Regulation 403/96) in relation to his alleged injuries. The defendant denied that there was an “accident” within the meaning of that statute which defines an accident as: “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage …”.

The Court’s analysis of the issue was guided by the two part test set out in Amos v. Insurance Corporation of British Columbia, [1995] 3 S.C.R. 405:  (1) Did the accident result from the ordinary and well known activities to which automobiles are put? (2) Is there some nexus or causal relationship between the plaintiff’s injuries and the ownership, use or operation of his vehicle; or is the connection between the injuries and the ownership or use or operation of the vehicle fortuitous?

To reflect the fact that indirect causes of impairment had been removed from the Statutory Accident Benefits Schedule since the Amos case, the Court added a third aspect to the test: Is there a direct or proximate causal relationship between the injuries and ownership, use or operation of his vehicle or is the connection between them merely incidental or fortuitous?

The Court found that pulling into a gas station is an activity that all vehicles are put and therefore the first part of the test was satisfied. The Court also found that there was a direct causal relationship between the injuries and the use, ownership or operation of the vehicle because the use of the car had not come to an end before the injury was suffered. The plaintiff had not left the car and the engine was running when he was assaulted. The logical and probable inference from the facts is that the assailants had intended to try to take the plaintiff’s vehicle. It was the use or ownership of the vehicle that had put him in harm’s way.

The Court concluded that the plaintiff had been involved in an “accident” within the meaning of the Statutory Accident Benefits Schedule. The motion for summary judgment was denied.

This case was digested by Kim Yee and edited by David W. Pilley of Harper Grey LLP.

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