Taxi Driver Being Punched By Passenger is Not An "Accident"

May 12, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Raja and Arch
FSCO A15-004857

Date of Decision: April 17, 2017
Heard Before: Adjudicator Jeffrey Musson

Was it an accident: definition of accident; taxi driver punched by passenger not an accident under Schedule; completion of normal use of vehicle at time of incident; two fold test; purpose test; causation test

DECISION ON A PRELIMINARY ISSUE

Mr. Raja was injured in an incident on May 29, 2012 and sought accident benefits from Arch payable under the SABs. When the parties were unable to resolve their disputes through mediation Mr. Raja applied for arbitration at FSCO.

The issues in this Preliminary Issue Hearing are:

1. Was Mr. Raja involved in an “accident” as defined in the Schedule?

Result:

1. Mr. Raja was not involved in an accident as defined by Section 3(1) of the Schedule.

Mr. Raja is employed as a taxicab driver. On May 29, 2012, he had a fare which went to the hospital. When he arrived at the hospital main doors he put the taxi in park, leaving the engine running.  He got out of the vehicle to remove a child’s stroller from the trunk of the taxi.  All three passengers got out of the car and Mr. Raja was paid the fare owing. When got back in the taxi, there was another vehicle blocking him.  Mr. Raja proceeded to reverse slowly and in doing so, he inadvertently bumped the female passenger who he had just dropped off at the MUMC.  Mr. Raja heard someone yell stop.  He proceeded to put his taxi in park and exited the vehicle to see if anyone was injured.  As Mr. Raja was walking to the back of his taxi, one of the passengers punched Mr. Raja in the face rendering him unconscious.  Mr. Raja was admitted to the MUMC’s emergency ward.  He was subsequently admitted to Hamilton General Hospital for observation, and a CT scan was performed.

In his statement to the police on November 14, 2012, Mr. Raja stated that he was admitted to the hospital as a result of a physical assault.  The passenger ultimately plead guilty to assault causing bodily harm, and was sentenced to three months in jail. Mr. Raja applied for accident benefits from Arch and submitted an OCF-1 on November 8, 2012.  Arch, however, opines that the incident is not an “accident” as defined in Section 3.1 of the Schedule.

The only issue put forward is to determine if this incident qualifies as an accident under the SABs.  Both parties agree that the “two-part test” should be applied to determine this issue in dispute.

Part one of the two-part test is the “Purpose Test”.  Did the incident arise out of the use or operation of a vehicle in the ordinary and well-known activities to which vehicles are put?  Part two of the two-part test is the “Causation Test”.  Was the use or operation of an automobile a direct cause of Mr. Raja’s injuries?

Mr. Raja submits that he has been able to satisfy in the affirmative both questions of the two-part test, thereby allowing the incident of May 29, 2012 to be defined as an accident under Section 3.1 of the Schedule.  Mr. Raja believes since he disembarked from the taxi to check on the condition of his recently dropped-off passengers, this is an ordinary activity related to the use or operation of a vehicle.  Mr. Raja further believes that his injuries were sustained from an uninterrupted sequence of events that occurred because of the use or operation of a vehicle, in this case the picking up and dropping off of passengers as a taxi driver.

Mr. Raja relies on the Court of Appeal’s decision in Economical v. Caughy, which set out the Supreme Court of Canada’s test from Amos v. Insurance Corporation of British Columbia.  Mr. Raja submits that using the same test, his use of the taxi is the dominant feature of his accident.    In terms of the Causation Test, Mr. Raja believes that the activity of dropping off passengers, and the short amount of time between the disembarking of his passengers and the incident are all evidence that favours him passing the Causation Test.  The assault also took place near the taxi.

The Causation Test has three subtests.  The first subtest is the “but for” test.  Mr. Raja submits that but for the operation of the taxi, Mr. Raja would not have been present with the passenger who assaulted him.  The second subtest is to determine whether there was a sufficient intervening act to negate the nexus between the operation of the taxi and the incident.  Mr. Raja submits that the assault was immediately after his taxi hit the passenger’s companion.  There were no intervening lapses of time.  The third subtest is used to determine if the use and operation of the taxi was the “dominant feature”.  Mr. Raja submits that his operation of the taxi was the reason for this incident, and therefore the dominant feature.

Arch states that the incident on May 29, 2012 does not satisfy the two-part test.  It submitted evidence that the Purpose Test is only satisfied if the use or operation of a motor vehicle is the “direct cause” of the injuries.  It argues Mr. Raja’s injuries were not caused by the operation of the vehicle.  The injuries were caused by the assault on Mr. Raja.  Further, Arch submits that even if Mr. Raja meets the Purpose Test, he fails to meet the Causation Test.  Arch states that in Downer v. Personal Insurance Company of Canada, the Court of Appeal affirmed that a modified, stricter causation test is to be applied when determining if a person is entitled to statutory accident benefits.  Arch has a difference of opinion respecting the application of the three subtests to Mr. Raja’s incident.

Arch believes the assault was an intervening act.  Arch submits that an assailant’s criminal act breaks the chain of causation between the use or operation of the vehicle and the injuries suffered by the injured person, and therefore, Mr. Raja would not be entitled to claim this incident as an accident as defined under the Schedule.  Arch also argued that Mr. Raja’s use or operation of the vehicle as a taxi ended once he was paid for his transportation services and exited/walked around to the side of the taxi.  The third subtest asks if the use and operation of the taxi was the “dominant feature” of the incident.  Arch submits that the assault was the dominant feature of the incident, and not the operation of the taxi by Mr. Raja.  The taxi provided the opportunity and location for the assault, but was not the dominant feature. Ultimately, Arch submits that Mr. Raja does not pass the two-part test, and as a result, the incident of May 29, 2012 is not an “accident” as defined by the Schedule.

The Arbitrator reviewed the evidence and the law and determined that it has been determined through jurisprudence that the ordinary use of a vehicle extends beyond the act of driving.  The Arbitrator noted that based on the evidence in the case that the criminal act of which the passenger was convicted, and which caused the injuries sustained by Mr. Raja, was the intervening act.  The Arbitrator also determined that the completion of the trip, and specifically the payment of cab fare, was an additional intervening act. In essence, payment for services rendered was completed and thus a contract for transportation services in exchange for financial compensation was completed.  This is important because if the assault occurred before the contract for transportation services was completed, Mr. Raja’s argument that the assault was resulted from ordinary use of a taxi would have considerably more weight.  The facts show that this incident occurred after completion of the transaction.

Both Mr. Raja and Arch submitted the case of Kumar and Coachman Insurance Company. The assault in Kumar addressed an attempted robbery, not an issue about the fare or the operation of the taxi.  It should be noted that it was the passenger who assaulted Mr. Raja, but he was not the person who Mr. Raja hit when reversing the taxi.  Therefore, there is little guidance in Kumar that would support Mr. Raja’s position; in fact,  Kumar supports Arch’s position.

On the basis of the evidence presented the assault which took place does not pass the two-part test.  This test has been established to assist in determining if an “accident” has occurred under the Schedule.  Analyzing the totality of the evidence presented, the Arbitrator determined Mr. Raja’s incident on May 29, 2012 is not an accident as defined under Section 3.1 of the Schedule. 

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