Incident involving a car door, punches in the face considered an accident - L.L. and Intact Insurance Co., Re 2019 CarswellOnt 3604

April 24, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

L.L. and Intact Insurance Co., Re, 2019 CarswellOnt 3604

Ontario Licence Appeal Tribunal

Heard Before: D. Gregory Flude V-Chair
Date of Decision: March 4, 2019

WAS IT AN ACCIDENT: definition of accident; what is an incident/accident; did the injury occur as a result o f the normal use of an automobile;

The applicant was deliberately injured by the driver of a parked car. The driver slammed a car door into her, and then got out of his car and subsequently punched her in the face three times. The question before the LAT was whether the assault falls under the definition of ‘accident’ pursuant the SABs.

The Tribunal reviewed the incident and the chain of events that led to the assault. The applicant was injured when the other driver deliberately struck her with the door of his parked car injuring her knee and left forearm. The driver then stepped out of his car and punched the applicant in the face three times. As a result of what happened the applicant suffered soft tissue injuries and went on to develop serious psychological impairments.

She sought benefits pursuant the SABs for her injuries from Intact. Intact approved the benefits for the physical injuries but denied benefits to fund the serious psychological injuries on the basis that the incident was actually two separate events, the first being the accident and the second event the assault. Intact Argued that the chain of causation was broken when the other driver got out of the car and struck the applicant in the face. Intact argued that this did not fall within the definition of an accident as set out in the SABs.

On review of the details The Arbitrator concluded that the incident was an accident as that term is defined in the Schedule. In arriving at this conclusion, the Arbitrator took into account the fact that the respondent conceded that the assault involving the car door was an accident and has paid whatever benefits it feels are due as a result. The Arbitrator considered that the long-term impairments allegedly suffered by the applicant as a result of the assault cannot be neatly attributed to the second phase of the assault as the respondent has tried to do. The use or operation of a motor vehicle was a direct cause - not the only cause, of the applicant’s impairments. It is sufficient for the first phase of the assault to be a direct cause of the applicant’s impairments for it to attract the payment of benefits under the Schedule.

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