Accident Benefits Update – Paul’s Right Foot: SABS access limited to a sole injury
ACCIDENT BENEFITS UPDATE
For the week of June 3 to June 7, 2013
Paul’s Right Foot: SABS access limited to a sole injury
Martin v 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19; Cronk, Epstein and Pepall JJ.A
The Ontario Court of Appeal (“ONCA”) summarily dismissed the Statutory Accident Benefits Schedule (“SABS”) and indemnity claims of an insured, save for those of his right foot. The Court concluded that his injuries did not arise from an “accident”, but from an assault.
On April 23, 2005, Paul Martin, the insured, was mugged next to his car in a parking lot. He was forced into the trunk and then into the passenger seat to operate the manual transmission for his stick-shift challenged muggers, all the while being further assaulted. The assailants removed Paul from the car upon reaching another parking lot, where they continued their physical attacks and drove off, running over Paul’s right foot in the process.
Paul applied to his automobile insurer, Certas Direct Insurance Company [Certa], for the following:
1. Accident benefits, and
2. Indemnity for damages for injuries under his unidentified, uninsured and underinsured provision within his insurance.
Certas rejected the claims, which resulted in Paul initiating a lawsuit.
Certas failed in having Paul’s lawsuit dismissed by summary judgment. Rather, the motion judge decided
1. That Paul’s injuries flowed from an ‘accident’ as meant by SABS, thereby entitling him to accident benefits, and
2. That Paul’s injuries stemmed “directly or indirectly from use [or] operation” of his car, thereby entitling him to the fruits of the indemnity provision.
This ONCA case represents Certas’s appeal of the motion judge’s ruling, that found Paul was entitled to SABS and compensation for damages under his unidentified, uninsured and underinsured provision.
To qualify for SABS, Paul’s injuries must have arisen from an “accident”, which is defined, in part, as “an incident in which the use or operation of an automobile directly causes an impairment”. [s. 2(1) of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96]
The motion judge considered Paul’s injuries to be “directly connected to the use and operation of his vehicle” as the car was “part of the instrumentality through which the assaults were committed” [paras. 32 and 31]. Therefore, the injuries arose from an “accident” and Paul qualified for SABS.
In accordance with its decision in Downer v. Personal Insurance Co., 2012 ONCA 302 (CanLII), the ONCA overturned the motion judge’s conclusion, which occurred prior to Downer’s release. The Court applied the modified causation test, as developed in Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), and Greenhalgh v. ING Halifax Insurance Co.2004 CanLII 21045 (ON CA). This test poses the following two questions, as set out in Greenhalgh at para. 36:
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?
The ONCA opined that an automobile cannot simply be involved in an injury-causing incident to be considered a direct cause. Rather, an automobile must be used or operated in a usual or ordinary fashion to qualify. The Court deemed being struck against a vehicle or forced into a trunk or struck while shifting gears as not in the “‘ordinary course of things’ associated with the use or operation of a vehicle” [para. 54]. These assaults constituted an intervening act, thereby precluding the vehicle as being a direct cause of injury. The Court concluded that the motion judge failed to properly apply the second branch of the modified causation test.
Paul’s right foot is a different matter entirely. The Court acknowledged that the injury to Paul’s right foot could be considered directly caused by the use or operation of his vehicle, potentially qualifying the injury as arising from an “accident” and, in turn, qualifying Paul for SABS. On this basis, Certas’s summary judgment was dismissed against Paul’s right foot. Lastly, the Court clarified that Paul’s SABS claim was restricted to his foot injury and should not extend to all of his injuries.
The Court granted Certas summary judgment over Paul’s SABS claims, with the exception of those related to his foot.
To qualify for indemnity coverage, Paul’s injuries and losses must have arisen from “the ownership or directly or indirectly from the use or operation of any such automobile.” [ s. 239(1) of the Insurance Act, R.S.O. 1990, c. I.8.
The Court’s deliberation and conclusion was similar to that for SABS, as detailed above. The vehicle was deemed incidental to the assaults and neither directly or indirectly the cause of Paul’s injuries, with the exception of his right foot.
The Court granted Certas summary judgment over Paul’s indemnity claim, save for the claim related to his foot.
It is important to note that the particular facts of each case, even between decidedly similar cases, can alter the outcome.
Nevertheless, this case follows previous decisions that limit the availability of SABS to injuries arising from incidents whereby the vehicle is not incidental, there is no intervening act responsible and the vehicle is used or operated in a usual or ordinary fashion. The message is that the mere presence of an automobile is unlikely to be sufficient to trigger SABS. Furthermore, injuries arising from an assault, even if a vehicle is being used or operated, may not qualify for SABS.
This decision is also significant because it isolated one injury as being eligible for SABS despite this injury being a constituent of a single incident from which many injuries flowed. The application of this ruling may prove unmanageable due to the difficulties of segregating the cost of treatment or care for particular injuries
Accessing This Decision
If you would like to read the decision for yourself, it can be found at: http://canlii.ca/t/fvn83
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