May 2012

UPDATE: Downer v. Personal Insurance

Michael Kennedy
Partner

By Michael Kennedy
Published in McCague Borlack's Transportation Newsletter

Justice Murray of the Ontario Superior Court of Justice held on August 23, 2011 that an assault during an attempted car-jacking qualified as an accident pursuant to the Statutory Accident Benefits Schedule. A synopsis of this decision and its implications for the insurance industry was reported in the October 2011 edition of McCague Borlack's Transportation Newsletter.

The Personal Insurance Company appealed Justice Murray's ruling and, on May 9, 2012, the Ontario Court of Appeal overturned Justice Murray's decision, in part. Specifically, Justice LaForme (writing for the court) held that the insured's physical injuries [emphasis added] were not directly caused by the use or operation of a motor vehicle.

In arriving at this decision, Justice LaForme affirmed the causation test from Greenlaugh v. ING Halifax Insurance Co.:¹

1. Was the use or operation of the vehicle a cause of the injuries?

2. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening 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?

Justice LaForme held that Justice Murray incorrectly applied the test in the present circumstances, as the plaintiff's use of the vehicle was not a direct cause of the plaintiff's assault-related injuries: "The assault on the [insured] as he sat in his car sorting his money cannot fairly be considered as a normal incident of the risk created by the use or operation of the car."

With respect to the insured's psychological injuries [emphasis added], Justice LaForme held that those injuries could have been caused by an "accident", as the insured blamed his psychological impairment on the belief that he may have run over one of his assailants. As such, a trial on the issue was ordered.

This appellate decision is obviously favourable to insurers. The Court of Appeal affirmed that a modified, more strict causation test is to be applied when determining if an insured is entitled to statutory accident benefits.

¹ This is in comparison to the Supreme Court of Canada's causation test from Amos v. ICBC that was applied by Justice Murray (i.e. 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?). Justice LaForme explained how the Amos causation test was specifically rejected by the Court of Appeal in prior cases defining "accidents".

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