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Attempted car-jacking qualifies as an accident pursuant to the Statutory Accident Benefits Schedule (SABS)

Michael Kennedy
Michael Kennedy

October 2011

By Michael Kennedy, Associate
Published in McCague Borlack's Transportation Newsletter

A person must be involved in an accident if he or she is to be entitled to statutory accident benefits.

An “accident”, as defined by section 2 of the Statutory Accident Benefits Schedule, means “an incident in which the use or operation of an automobile directly causes an impairment”.

The courts have developed the following 2-part test to determine whether a person was involved in an “accident” pursuant to the Schedule:

  1. Did the accident result from the ordinary and well-known activities to which automobiles are put? (the “Purpose Test”); and

  2. Is there a direct or proximate causal relationship between the plaintiff’s injuries and the ownership, use or operation of his or her vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle indirect or merely incidental or fortuitous? (the “Causation Test”)

In Downer v. Personal Insurance, 2011 ONSC 4980, the Ontario Superior Court reaffirmed the above test and applied it to a peculiar set of facts: a plaintiff drove his vehicle into a gas station and was assaulted by multiple attackers while his engine remained running. The plaintiff was ultimately able to put his vehicle into gear and escape, but not before sustaining serious injuries. Worthy of note is that the plaintiff's insurer paid him $73,061.27 in accident benefits before taking the position that the plaintiff was not involved in an accident, consequently seeking repayment of all amounts paid.

Justice Murray held that the Purpose Test was easily satisfied, as pulling one’s vehicle into a gas station to purchase fuel is an activity to which all vehicles are put. Moving to the Causation Test, Justice Murray held that the assailants’ actions showed that they intended to seize possession of the plaintiff’s vehicle. As such, the assault on the plaintiff was not incidental to the use of the vehicle (such as in the case of a drive-by shooting) but was directly connected to his ownership, use and operation of the vehicle.

The court therefore held that the plaintiff was entitled to statutory accident benefits.

The Downer case shows that determining whether an insured was involved in an “accident” is extremely fact-based. Some factors the court considered in arriving at its decision included

  • whether the use of the car had ended before the injuries were sustained,
  • whether the insured physically left the car before sustaining the injuries,
  • whether there were intervening acts between the use of the car and the injuries sustained and
  • whether using the car was a dominant cause of the injuries.

 

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