Why this driver can’t collect benefits for his carjacking injuries

A car owner is not entitled to auto accident benefits (AB) for injuries sustained in a carjacking because his injuries were not directly caused by the use and operation of the motor vehicle, Ontario’s Licence Appeals Tribunal determined last Wednesday.

“The carjacking was an intervening event that caused the applicant’s injuries,” LAT Adjudicator Kate Grieves ruled in Ji v. Aviva Insurance Company of Canada. “Without the carjacking, the [injured AB applicant] would not have been injured.

“Accordingly, I find that the carjacking interrupted the chain of events from the applicant’s ordinary use of his vehicle. I am persuaded by the reasoning in Guo, where the Tribunal found that being forcibly extracted from a vehicle is not in the ordinary course of things associated with the use or operation of the vehicle. The use or operation of the vehicle was ancillary to the assault.”

On Sept. 9, 2022, Pengfei Ji drove his vehicle to a gas station. He parked his vehicle and was filling his tires with air when two individuals approached, pointed a gun at him, and stole his vehicle.

He filed an OCF-1 form requesting accident benefits from his insurer, Aviva, saying he suffered from neck pain, headaches, severe sleeping issues, and anxiety as a result of the carjacking.

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The injured driver maintained that, had he not been operating his vehicle and filling up his tires at that location, he would not have sustained injuries.

But Aviva denied the claim. The insurer said the injuries did not arise from the ordinary course of use or operation of the vehicle.

The tribunal agreed with Aviva’s position, ruling that the carjacking was an intervening event that broke the chain of causation of the vehicle’s operation, meaning ordinary use did not directly cause the insured’s injuries.

“According to his examination under oath, [Pengfei Ji] testified that he was not physically struck or injured in any way,” the LAT adjudicator wrote in the decision. “The assailants did not physically touch him. Nor is there any indication that there were any injuries caused by making contact with the vehicle as part of the incident. The assailants demanded the keys, which were still in the running vehicle, and drove away.”

The tribunal cited an Ontario Court of Appeal decision from 2012, called Downer v. The Personal Insurance Company, which found the location of a car close to the scene of the injuries doesn’t mean the injuries were sustained as a result of an “accident.”

In Downer, “it was not enough to show that an automobile was the location of an injury inflicted by [wrongdoers], or that an automobile was somehow involved in the incident giving rise to the injury,” Grieves found. “The use or operation of the automobile must have directly caused the injury.”

 

Feature image courtesy of iStock.com/urbazon