A person physically assaulted in his car may not be entitled to insurance benefits under an automobile policy

An appeal by an insurer from the dismissal of its application to dismiss an insured’s claim for accident benefits. The appeal was allowed in part.

Downer v. Personal Insurance Co., [2012] O.J. No. 2015, May 9, 2012, Ontario Court of Appeal, S.E. Lang, H.S. LaForme JJ.A. and L.A. Pattillo J. (ad hoc)

The appellant, Personal Insurance Co., appealed the dismissal of an application for summary judgment.

While sitting in his parked vehicle at a gas station, the respondent was assaulted by 3 or 4 men. The assailants tried to pull him from his car and the respondent tried to change gears to reverse out of the spot. One of the men tried to force the vehicle into park, before the respondent managed to reverse the vehicle. In the course of driving away, the respondent believes that he may have run over one of the assailants. The respondent subsequently made a claim for accident benefits for personal injuries, including psychological injuries, pursuant to the Statutory Accident Benefits Schedule (“the SABS”).

The Appellant had argued that the personal injuries were not sustained in an "accident" within the meaning of the s. 2 of the SABS which defined an accident as: "an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage."

The motions judge dismissed the application and granted a declaration that the respondent was involved in an "accident" within the meaning of the SABS. He found that the incident resulted from one of the ordinary and well-known activities to which automobiles were put, namely pulling into a gas station in order to purchase gas. The motions judge also found that there was a direct or proximate causal relationship between the respondent’s injuries and the use or operation of an automobile. The use of the automobile had not ended before injury was suffered, he had not left the vehicle, and the assault on the insured arose out of his ownership, use and operation of his vehicle.

At issue on appeal was whether the motions judge erred in concluding that the insured was involved in an "accident" within the meaning of the SABS. The appeal was allowed in part.

The Court of Appeal held that the motion judge erred in concluding that the insured was involved in an "accident". He erred in concluding that the causation test was satisfied in relation to the injuries caused by the assault on the insured while he was parked at the gas station.

The motions judge erroneously referred to "ownership", which was not included in s. 2(1) of the SABS, and he failed to ask whether there was an intervening act outside the "ordinary course of things".

The motions judge erred in relying on the location of the attack and on the inferred motive of the assailants as proving that there was a direct causal relationship between the injuries suffered during the attack and the use or operation of a motor vehicle.

While the physical assault on the insured did not constitute an "accident" under s. 2(1) of the SABS, the insured's psychological injuries, including depression, anxiety and post-traumatic stress disorder, which resulted from his belief that he had run over one of his assailants, might have been caused by an "accident" as defined in the SABS. Whether the insured was involved in an "accident" was a genuine issue requiring a trial. In addition, there were other issues in the action that the motion judge was not asked to decide on the motion for summary trial. As a result, the action had to proceed to trial.

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

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