Entering a car to escape assault is not an auto accident

Ontario’s Licence Appeal Tribunal is tightening up the definition of an auto “accident,” most recently finding that walking to a vehicle, or stepping into the vehicle to protect yourself against an assault, is not the same as the “ordinary use” of a vehicle.

For years, personal injury lawyers sued auto insurers for accident benefits simply because a stationary vehicle was on the scene, or in the vicinity when an injury occurred. Then the courts started to tighten up the rules.

In a 2007 civil liability case, Citadel General Assurance Co. v. Vytlingam, the Supreme Court of Canada introduced a “causation” test that effectively says the injury must be linked to the uninterrupted use of the auto.

And then again, in 2016, the Ontario Court of Appeal introduced the “purpose” test in Economical Mutual Insurance Company v. Caughy. The test assesses if the injuries are caused when the vehicle is used for its intended purpose (i.e. driving from Point A to Point B).

Recently, the LAT has been applying these tests to deny accident benefits claims by people who have been injured either while a car was nearby or inside an unmoving car shortly after the injuries occurred.

For example, in Kandaiya v. TD Insurance, released a week ago, the LAT found a person who was assaulted in a park, and then entered his car to protect himself from further injury by his assailant, was not involved in an “auto accident.” The tribunal upheld the auto insurer’s denial of accident benefits on this basis.

“The [accident benefits] applicant cannot bring the incident to the vehicle and then determine it was an accident,” LAT adjudicator Brian Norris ruled. “The incident occurred at a location other than at the vehicle and it was the applicant who chose to flee the scene to the vehicle.

“Accepting the applicant’s interpretation here would permit anyone involved in an injurious situation to flee to a vehicle and claim accident benefits. I find it implausible that this outcome was the legislature’s intention. Accordingly, I find that the purpose test is not met in this situation.”

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Prathab Sivagun Kandaiya, the AB benefits applicant, was assaulted by another person with a blunt object while walking in a park, tribunal documents show. He was knocked to the ground during the assault and the assailant attempted to steal a gold chain he was wearing.

He fled the location of the assault to his vehicle, but he was struck again upon entering the vehicle. He then managed to close the door. The assailant proceeded to damage the side mirror and taillight of the vehicle.

Kandaiya suffered headaches and back pain after the incident and applied to his auto insurer for accident benefits. TD Insurance denied the claim, saying his injuries did not arise from an auto accident.

The tribunal agreed with the auto insurer.

“To the applicant’s misfortune, he was assaulted in a park and not involved in an accident,” Norris  wrote. “Thus, I find that the use or operation of the vehicle is not a direct cause for the applicant’s injuries.”

 

Feature image courtesy of iStock.com/DjelicS