Is a Carjacking an Automobile Accident?

There can be many causes of automobile injuries. Fortunately carjacking is not a common cause of injuries in Canada, but when it does happen how should insurance companies treat them? Justice John Murray of the Ontario Superior Court dealt with the issue of an assault while operating an automobile this week by in Downer v. Personal Insurance.

On Feb. 26, 2000, the plaintiff was filling his car with gas at a gas station in Scarborough on a Saturday evening. He was counting his money for payment in his car with his internal lights on when we was approached by 3-4 men who proceeded to assault him. After sustaining a number of blows the plaintiff managed to accelerate his car and exit the parking lot, leaving his assailants behind him. He claimed that as a result of the incident he suffered depression, anxiety, post-traumatic stress disorder, chronic low back pain, migraine headaches, anxiety and nervousness, and functional limitations, and received $73,061.27 in payments pursuant to the Statutory Accidents Benefits Schedule (O. Reg. 403/96). (The current regulatory scheme is O. Reg. 34/10).

The insurer brought a motion for summary judgment after the plaintiff proceeded with the action in response to the insurer’s decision to terminate accident benefits and would seek repayment of benefits paid pursuant to s. 47(1). The defendant’s position was that the payment of accident benefits was an error, and the incident failed to qualify as an accident under s. 2 of the Act.

The definition of an accident under the Act is as follows:

“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; (“accident”)
[emphasis added]

The wording in the Act reflects changes made to the previous provisions which used the words “directly or indirectly,” upon which Laskin J.A. stated for the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group,

[13] …The legislative history of the Schedule shows an intent to differentiate between direct and indirect cause. Undoubtedly, as a cost saving measure, the 1996 Schedule limits coverage to incidents in which the use or operation of an automobile directly causes an injury.

The unanimous Supreme Court decision in Amos v. Insurance Corporation of British Columbia assessed benefits for a plaintiff who was attacked and shot by a gang of people trying to enter his car. They created a two-part test to determine the meaning of accidents under B.C.’s automobile legislation:

1. Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?
2. Causation Test: Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’s injuries and the ownership, use or operation of his vehicle;
   or is the connection between the injuries and the ownership, use or operation of the vehicle, merely incidental or fortuitous?

The Amos test was further reviewed by the Ontario Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. to reflect the more stringent legislation in the province. Labrosse J.A. interpreted Justice Laskin’s statement in Chisholm as applying only to the causation test,

[23] When Mr. Chisholm submitted that the Amos test applied to this case, Laskin J.A. rejected this argument, stating, “In my view, the Amos test does not apply, and even if it did, I am dubious whether Chisholm could satisfy it” (para. 18). It may be argued that in Chisholm, Laskin J.A. questioned the applicability of the whole Amos test. However, in my opinion, when Laskin J.A. made that statement, he could only be referring to the causation test…
[emphasis added]

The injuries sustained in Chrisholm were attributed to a drive-by shooting, and the court held that gun shots from an unknown assailant were the direct cause of the impairment, and not the use of his car. They could not be considered an intervening act in the “ordinary course of things,” where an insurer would still be liable for no-fault benefits.

Murray J. held that pulling into the gas station here met the Purpose Test in Amos because purchasing gas is an activity required of all vehicles. In assessing the Causation Test, he distinguished this case from Greenhalgh and its supporting authorities because the result of numerous intervening acts in that case that prevented the use of the car from being the direct cause of injuries.

He decided to modify the Amos Causation Test to reflect the Ontario legislation as follows:

Is there a direct or proximate causal relationship between the plaintiff’s injuries and the ownership, use or operation of his vehicle or is the connection between the injuries and the ownership, use or operation of the vehicle, indirect or merely incidental or fortuitous?

In this case the use of the car had not ended when the injuries occurred and there was no temporal distance because the insured had not left the car and the engine was still running when he was assaulted.

He referred to Citadel General Assurance Co. v. Vytlingam and concluded that the assailants were likely intending on stealing the car while he was in possession of it, which is directly connected to the use of operation of his vehicle and a proximate cause to his injuries. The motion for summary judgment was dismissed.

So although a drive-by shooting may not be considered an automobile accident, a carjacking is, at least on the facts presented in this case.