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Not Quite E-gg-spected!



There have been numerous intriguing cases with respect to Insureds arguing “incidents” as “accidents” defined under SABS in order to secure benefits under the automobile policy. Not only SABS, arguments have been raised to claim Bodily Injury expenses in case of unidentified motorists too.


Under the Statutory Accident Benefits Schedule (SABS), Section 3(1), an accident is defined as:


“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;


The definition at the outset seems quite straightforward. However, not quite so. The following may be noted:


· The incident must occur because of “the use or operation of an automobile”; and

· The incident must “directly causes an impairment”


The Tests


For an “incident” to qualify as an “accident” under SABS, the following two tests must be met.


1. The Purpose Test


Did the accident occur as a result of the vehicle being put to ordinary and well-known use/activities to which automobiles are put? Interesting to note here, the vehicle need not be in “active use” to meet this part of the test [see Economical Mutual Insurance Co. v. Caughy, 2016, ONCA].


2. The Modified Causation Test


Was there a causal relationship, without any external intervening act(s), between the injuries and the accident once the “purpose test” is met?


The causation involves a three-prong test [see 16-000218 v Aviva Insurance, 2017]:


a) But for test.


b) Is there an intervening act breaking the causation link?


c) The dominant feature test.


In a recent decision, the Ontario Superior Court of Justice discussed the above tests in detail with respect to a sad, but one of its kind of an incident.


In Gilbraith v. Intact Insurance Company, 2019, the plaintiff, Stephanie Gilbraith was a pedestrian when she received an eye injury by one of several eggs thrown in her direction by occupant(s) from a moving motor vehicle, that decamped without being ever identified. As a result, the plaintiff’s right eye was injured, and she commenced a claim against, inter alia, Intact Insurance Company in accordance with the OPCF 44R Family Protection Coverage Endorsement of the standard Ontario policy of automobile insurance which was issued to her father by Intact. The Insurer brought in a summary judgment motion to dismiss the action.


Position of the Parties


Intact


Submitted that the injuries did not arise directly or indirectly from the use or operation of an automobile but arose as a result of an egg thrown by a passenger in the car, and thus both the “purpose” and “modified causation” tests have not been met. Intact argued that “the act of intentionally throwing an egg by a passenger from the moving motor vehicle was an intervening act that broke the chain of causation between the driving of the vehicle by the unidentified motorist and the plaintiff’s injuries”.


Plaintiff


Submitted both the tests have been met as her injuries arose from the use or operation of a motor vehicle from which an egg(s) was thrown, and the incident occurred in the course of the ordinary and well-known activity of motor vehicles without any external intervening acts causing the break in the causation link. The plaintiff submitted, relying on the expert evidence report (“Report”), that the added velocity of the egg imparted by the speeding motor vehicle rendered the involvement of the motor vehicle the dominant feature that caused her injury.


Issue


The court stated as under:


In the present motion, the Report addresses the central issue in assessing whether there is a genuine issue for trial, namely whether the plaintiff’s injury arose directly or indirectly from the use or operation of a motor vehicle by an inadequately insured motorist, or by an egg thrown by a passenger in the car.


Analysis


The findings of the report, though inadmissible, for being “hearsay”, for the truth of its contents, were confirmed as under:


The Report finds that a vehicle travelling at least 50 km/h would likely have doubled or more the impact speed of the egg, and the vehicle speed increased the risk of retinal injury from 0 percent for the throw alone to between 1 percent and 39 percent for an egg thrown from a vehicle travelling at 50 km/h.


Purpose Test (“use and operation”)


The court dismissed Intact’s submissions, stating:


In the present matter, the driver was transporting passengers and cargo, egg(s). These are well known activities involving the use of an automobile consistent with the findings in Vytlingam and Russo. As such, I find that the incident did occur in the course of the ordinary and well known activity of automobiles. Contrary to Intact’s submission, the plaintiff has met the purpose test.


Modified Causation Test (“arising directly or indirectly”)


The court, dismissing Intact’s submissions, stated:


As set out in the Report, absent speed and kinetic energy imparted into the egg by the vehicle, the plaintiff would not have suffered a choroidal rupture and vitreous hemorrhage to her eye when struck by the egg. The Report opined that a driver in charge of a motor vehicle travelling 60 to 70 km/h, instead of the posted 50 km/h, increases the likelihood of the plaintiff suffering injuries from between 1 percent and 49 percent to between 13 percent and 84 percent. Thus, only by speeding did the driver make the plaintiff’s injury more likely than not. As discussed above, and in accordance with Huang, I am only relying on the Report as “some evidence” for the limited purpose of assessing whether there is a genuine issue requiring a trial.


On these discrete facts, I find that the modified causation test has been met.


Further, the driver was independently negligent in failing to stop his vehicle, or slow it down to the point of eliminating the effect of the vehicle upon the egg when he knew or ought to have known that the use of his motor vehicle would contribute to the impact of the egg about to be thrown in the direction where pedestrians may be present.


Thus, the court dismissed the summary judgment motion brought by Intact seeking dismissal of the plaintiff’s action, confirming there is a triable issue.


Takeaways


This was an interesting case where the kinetic energy rendered to the egg due to speed of the car was found to be a dominant feature in causing the injury. Absent this dominant feature (say instead of eggs, shots were fired from a gun), the causation test may not have been met. Be cautious in investigating any claim that may involve a motor vehicle in the incident, even if not in active use.

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