Many risks associated with driving a vehicle are intuitive; some are not.
Imprecision in identifying the risks of driving influences how insurers assess the value of automobile insurance. A recent Ontario Superior Court decision, Gilbraith v Intact Insurance Company, reminds insurers and insured persons how difficult it can be to properly assess and categorize risk at the outset of an insurance relationship.
This case will likely rise through appellate courts in Ontario, which provides an opportunity for the courts to clarify the risks that an auto insurance policy will reasonably cover.
Gilbraith v Intact Insurance Company
Stephanie Gilbraith was walking along a sidewalk with a friend when a vehicle approached her from the opposite direction. As the vehicle passed, a passenger reached out the window and threw several eggs at Gilbraith and her friend, one of which struck Gilbraith in her right eye and severely damaged her central vision. The vehicle sped away and neither it nor the occupants have been identified.
Gilbraith’s father had obtained insurance with Intact Insurance Company (“Intact”) and had opted to include the Ontario Policy Change Form (“OPCF”) 44R Family Protection Coverage in his policy. There was no dispute that Gilbraith was insured under this policy. The issue was whether the policy applied at all.
Section 3 of OPCF 44R states as follows:
[T]he insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile.
Intact moved for summary judgment and argued that Gilbraith’s injuries did not arise directly or indirectly from the use or operation of an automobile. The court held that this issue was a genuine issue that would require a full trial to resolve and dismissed Intact’s motion.
The Purpose and Modified Causation Tests
Determining whether an injury arises “directly or indirectly from the use or operation of an automobile” requires two separate inquiries: (1) the purpose test and (2) the modified causation test.
1. The Purpose Test
The purpose test considers whether the impugned incident occurred in the course of an automobile’s ordinary and well-known activities. The court interprets this test generically rather than focusing on the driver’s subjective intent. For example, in Russo v John Doe, the Court of Appeal found that drive-by-shootings were in an automobile’s ordinary and well-known activities—transporting passengers and apparatus (i.e. a gun) from one place to another. Following Russo, the Superior Court held that the tortfeasors in Gilbraith used the vehicle to carry passengers and cargo (i.e. eggs), which is a well-known use for a car.
2. The Modified Causation Test
The modified causation test requires an unbroken causal chain linking the motorist’s conduct as a motorist to the plaintiff’s injuries. For example, when a bungee cord that secured a boat to a trailer snapped and injured a nearby person, the Ontario Court of Appeal held that the person’s injuries occurred directly or indirectly from the ordinary use of a vehicle (i.e. towing a trailer).
The Court of Appeal reached the opposite conclusion in Russo. In that case, a driver operated a van to facilitate a drive-by-shooting. The Court of Appeal held that the plaintiff’s injuries did not result from the driver’s use of the van, but from the passenger firing a weapon. The van simply “create[d] an opportunity in time and space for damage to be inflicted.” The shooting was a severable act that broke the causal chain.
The facts in Gilbraith are similar to those in Russo. Yet, unlike shooting a firearm, the court did not find that throwing an egg broke the causal chain. Counsel for Gilbraith adduced expert evidence that the kinetic energy imparted into the egg by the speeding vehicle increased the likelihood that Gilbraith would suffer injury. On the strength of this evidence, the court held that there was an unbroken causal chain between speeding and the plaintiff’s injuries—meaning the plaintiff’s injuries arose “directly or indirectly from the use or operation of an automobile”. Therefore, OPCF 44R applied.
Gilbraith walks on eggshells between competing precedents. The Superior Court found that speeding contributed to an egg being thrown from a vehicle with such velocity that it caused Gilbraith’s injuries. On this basis, the court concluded that speeding, an ordinary use for a vehicle, had caused the plaintiff’s injury without any break in the causal chain. Unlike the tortfeasors in Gilbraith, this reasoning misses its mark.
Driving a vehicle at a greater speed undoubtedly imparts greater kinetic energy to the vehicle’s cargo. However, whether a vehicle carries a boulder, bullet, or an egg, this cargo’s kinetic energy is not connected to a plaintiff’s injury absent some separate action, such as abruptly stopping the vehicle, firing a gun, or throwing an object. Put simply, an egg will not blind a pedestrian simply because a vehicle transports the egg at a high speed. Something else must happen.
The central question is whether this “something
else” is within the ordinary and well-known activities of automobiles. The Superior Court’s decision in Gilbraith does not analyze why the
throwing of an object, however fast, ought to be considered within the ordinary
and well-known activities of an automobile. On the contrary, throwing an
object seems to be “a distinct and
intervening act completely independent from the use or operation of the [motor
Absent the court’s analysis on this central issue, Gilbraith offers little guidance on how the modified causation test
should be applied in future cases involving projectiles from motor vehicles. We
anticipate that this decision will be appealed.
 Russo v John Doe, 2009 ONCA 305, 95 OR (3d) 138 [Russo].
 Ibid at para 26.
 AXA Insurance v Dominion of Canada Insurance Co. (2004), 73 OR (3d) 391 (CA).
 Russo, supra note 1 at para 34.