Full Decision
A chain of events triggered by an accident and followed by an assault falls under the definition of “accident” under the SABS according to the latest LAT decision.
This was a preliminary issue hearing on the question of whether the incident in question was an “accident” as defined by s.3(1) of SABS. The applicant was injured when a motorist deliberately hit her with the door of his parked car causing injuries to her knee and left forearm. The applicant then began to back away, but the assailant climbed out of his car, walked over to the applicant and punched her in the face three times. As a result of the incident, the applicant sustained soft tissue injuries and developed serious psychological impairments.
The applicant sought benefits for both her physical and psychological injuries from her insurer. Intact approved treatment for the physical injuries, but denied treatment for the more serious psychological injuries. Intact took the position that the incident actually consisted of two separate incidents, as the chain of causation was broken by the assailant getting out of his car and striking the applicant in the face. They attributed her psychological injuries to the second phase, arguing that this did not fall within the definition of “accident”. The applicant on the other hand argued that the whole chain of events constituted one incident, falling under the definition of “accident”.
The LAT considered s.3(1) of the SABS, and Greenhalgh v. ING Halifax Insurance Co., 72 OR (3d) 338 CA, which outlines the approach to be taken when considering the issue:
- Was the use/operation of the vehicle a cause of the injury? There can be more than one direct cause of injury; and
- If the use or operation of a vehicle was the cause of the injuries, was there an intervening act(s) that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? Is so, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
The LAT acknowledged that for the most part, an assault cannot be said to be part of the “ordinary course of things”, but distinguished this case on its facts. Here, it was not an assault that initiated the chain of events leading to injury and impairment. It was an accident, as defined by the SABS, which triggered the chain of events. The ongoing nature of the assault was such that they could not neatly divide the cause of the applicant’s impairments into separate categories, and there was no medical evidence provided in support of same. As a result, the LAT determined that the applicant was injured in an accident and any impairments she sustained were then worsened by what Intact alleged to be a separate assault.
