When an Assault is an “Accident” Under the SABS

Martin v. 2064324 Ontario Inc (c.o.b. Freeze Night Club), [2013] O.J. No. 172)

MVC April 23, 2005. Martin was loading his car in a parking lot after leaving work at a Toronto night club when he was assaulted by two unknown assailants. The assailants pepper sprayed him and forced him into the trunk of his own automobile. They proceed to remove him from the trunk and forced him to assist driving when they realized that the vehicle had a manual transmission. The assailants continued to hit Martin in the head while he was being made to drive to another parking lot. Upon arriving, the assailants forced Martin to the ground and continued to assault him, breaking two of his fingers. They attempted to drive off in Martin’s automobile and ran over his foot in the process after which time the automobile stalled. The assailants pepper sprayed Martin again and fled. Martin claimed statutory accident benefits on the grounds that all of his injuries arose as a result of an “accident” within the meaning of the SABS.

Martin’s automobile insurer advanced a summary judgment motion on the basis that his injuries resulted from the assault rather than from the use or operation of an automobile. The motion judge concluded that the automobile was “part of the instrumentality through which the assaults were committed” and concluded that Martin was entitled to no fault accident benefits. The decision was then appealed by the insurer.

The Court of Appeal unanimously found that the motion’s judge had failed to properly apply the modified causation test as recently set out in Downer v. Personal Insurance Co., [2012] O.J. No. 2015. Save and except for the injury to Martin’s right foot, the use or operation of the vehicle was not a “direct cause” of the injuries suffered by Martin. The assaults had nothing to do with the use or operation of the vehicle and constituted an intervening act which was not a “normal incident of the risk created by the use or operation of the car”. The injuries were found to have been inflicted by the assailants, and not from the conduct of the assailants as motorists. While the insurer was predominantly successful on its motion, it was not entitled to complete summary judgment because the foot injury, allegedly caused when the assailants drove over Martin’s foot, required a trial.

Why is this case important? As a general rule, it appears that the court is not prepared to accept that car jackings involving assaults taking place in or around an automobile will constitute “accidents” within the meaning of the SABS. If, however, there is a distinct injury sustained by a Plaintiff that may meet the modified causation test, courts are prepared to characterize those injuries distinctly. In those circumstances, insurers will have more difficulty succeeding on a motion for complete summary judgment.

Prepared by Tori Chapman