Motor vehicle insurance compensation for personal injuries is limited to injuries that arise from ownership, or the use or operation of a motor vehicle. In most situations, this is very easy to establish. However, there are situations where the injuries may have a different cause entirely that serves as an intervening act, disconnecting the vehicle from the individual’s ultimate injury. This is very common on situations relating to an assault that is somehow connected to an insured motor vehicle.
The law regarding these situations is governed by the Supreme Court of Canada’s decision in Herbison v. Lumbermen’s Mutual Casualty Co. (“Herbison”) 2007 SCC 47. In Herbison, the insured mistook the plaintiff for a deer while hunting; he was shooting while outside his vehicle. The insured was using his truck headlights to hunt. The Supreme Court determined that the injuries were not covered by the automobile policy. The Supreme Court found that the shooting was an independent, separate and intervening act that broke the chain of causation. It was also held that the use of the term “directly or indirectly” in the Insurance Act did not remove the requirement of an unbroken chain of causation. It was insufficient to find that the use or operation of the insured’s motor vehicle “in some manner contributed to or added to the injury.” The Supreme Court of Canada stated that the purpose test is to be restated to ask, “did the accident occur in the course of the ordinary and the normal activities to which normal automobiles are put?”
Several other cases have followed the reasoning in Herbison. For instance:
In Russo v. JD [2009], 2009 CarswellOnt 1901 [Ont. C.A.], the plaintiff was rendered a paraplegic by a drive-by shooting. The plaintiff sued for unidentified driver coverage. The court also found that it was not reasonably expected that an automobile insurance policy would cover injuries or death arising from a joint act or group of tortfeasors simply because of one tortfeasor’s involvement in the act of operating a motor vehicle. The court held that the plaintiff’s injuries from the shooting were a distinct and intervening act completely independent from the use or operation of the vehicle.
In Letkeman v. Willette [2010], 2010 CarswellAlta 1769 [ALTA. C.A.], a driver who physically resisted an officer’s attempt to remove him from his vehicle and that suddenly lunged at the officer, causing the officer to hit the concrete floor with his elbow, resulting in injury, was not considered use and operation of the vehicle because the assault occurred immediately after the driver’s use and operation of the vehicle. The court held that the fact that the driver lunged from the seat of the automobile and threw the door of the automobile broke the chain of causation.
In Haekel v. Allstate Insurance Co. of Canada [2007] 2007 CarswellAlta 1734 [ALTA C.A.], a driver was fatally stabbed following a collision with another vehicle. The stabbing occurred after the collision and while the driver was waiting for the police to arrive at the scene. The court concluded that the death was not caused directly and independently of all other causes by an accident arising out of the use and operation of the motor vehicle. The use and operation of the vehicle did not contribute directly to his injuries, and therefore there was a “temporal distance” between the use of his vehicle and his injuries. Therefore, the Court determined that the compensation was only payable where the injury or death arose directly and independently from other causes, and it required that the use of the motor vehicle was the direct cause of the injury or death.
Takeaway
When injuries occur outside of the proximity of the vehicle, severing the connection, said injuries cannot be said to have aroused from the “use or operation” of an automobile. Still, every case is different, and the facts in every case must be carefully considered before making a determination. Generally, injuries resulting from an assault that occurs after a motor vehicle accident would most likely be excluded from coverage. However, where the assault takes place while the vehicle is being used, the analysis must be made – was the assault an independent, separate and intervening act that broke the chain of causation? Also, did the accident occur in the course of the ordinary and the normal activities to which normal automobiles are put?
