June 03, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
18-001029 BH v Primmum Insurance Company, 2019 CanLII 22205 (ON LAT)
Date of Decision: February 14, 2019
Heard Before: Adjudicator Rebecca Hines
WAS IT AN ACCIDENT – no proof there was contact with the vehicle in the incident; assault or physical altercation was the dominant feature of the incident; chain of events was broken when applicant left car to engage in fight
BH was in his parked car preparing to leave a parking lot, when he got into a dispute with a third party that resulted in him getting out of his car and getting into a physical altercation with a man who assaulted him by pushing him against his car, where he suffered injuries. He applied to Primmum for accident benefits pursuant to the SABs. The parties disagree that the incident falls within the definition of an “accident” as defined by the Schedule.
This is a preliminary issue hearing. If BH is unsuccessful at this hearing, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident.
- Was BH was involved in an “accident” as defined in section 3(1) of the Schedule.
- H was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, BH is not entitled to claim accident benefits under the Schedule.
BH testified that incident involved an altercation between BH and The manager of BH’s local gym. BH tried to serve MT. with a summons to witness, but was unsuccessful.
BH maintains that he drove to the gym to work out, and had parked his vehicle in the parking lot. After his workout, he sat in his vehicle in the parking lot for 15 to 20 minutes, resting. BH testified that his keys were in the ignition, the engine was running, the heat was on, and he was listening to music, when he noticed The manager taking pictures of his vehicle.
BH lowered his window to ask the manager what he was doing. The manager told him that he was taking pictures to make sure that BH was a gym member and legally allowed to park there. BH verbally challenged the manager, as, in his view, the manager knew that he was a gym member given that they had met on previous occasions. In response, the manager walked closer (three steps away) to BH’s vehicle and swore at him. BH maintained that he could not drive away because the manager stood too close, and he was afraid that he would hit him with his vehicle.
BH opened his door and stood up and a verbal argument ensued, with both men swearing at each other. BH went to get back into his car and the manager then blocked BH from being able to close his door by placing his leg in-between the open door and the car’s body. BH was unable to close his door, so he stood up to close his door, at which point the manager pushed him into his vehicle, causing his back, left arm and elbow, and right leg to hit the vehicle. The men then got into a fist fight approximately 10 feet away from BH’s vehicle. BH testified that the men hit each other two-to-four times in the head. BH alleged that the final blow was dealt by the manager, which resulted in him fainting, and falling to the ground onto his left elbow. He woke up with the manager on top of him staring at him. At that point, the manager got up and went back into the gym.
Both men immediately called 911, complaining that they had both been assaulted by the other. Police and paramedics attended the scene and took statements. The police classified the incident as a “consensual fight” and no charges were laid. BH declined medical care from the paramedics and drove himself home. BH maintains that his wife later drove him to the hospital.
BH contends that he sustained serious injuries as a result of the manager pushing him into his vehicle. A disability certificate dated November 16, 2017, listed the following accident related impairments: multiple fracture of upper end of radius, sprain and strain of shoulder girdle, other specified injuries of shoulder and upper arm and other unspecified injuries of wrist and hand.
The Adjudicator reviewed the definitions:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
Pursuant to the Schedule BH bears the onus of demonstrating that the use or operation of a vehicle directly caused his injuries.
In order for BH to have been involved in an accident, the Court of Appeal has set out the following two-part test, in which both requirements must be satisfied:
- Purpose test: Did the incident arise out of the use or operation of an automobile?
- Causation test: Did the use or operation of an automobile directly cause the impairment?
(i) Purpose test: Did the incident arise out of the use or operation of an automobile?
BH argued that the incident of October 17, 2017 meets the purpose test since driving to the gym and sitting in his vehicle afterwards with the engine on preparing to depart constitutes a regular activity to which automobiles are put. Further, he argues the use and operation of his vehicle was part of an unbroken chain of events that ultimately led to the incident.
On the other hand, Primmum argued that the incident was not “directly caused” by the use or operation of BH’s vehicle. Simply put, it was an assault which cannot be considered to be part of the normal use or operation of an automobile. Further, Primmum asserts that it was not BH’s vehicle that “directly” caused his injury but the assault. Therefore, the incident does not satisfy either the purpose or causation test.
For the following reasons the Adjudicator agreed with Primmum.
First, sitting in a parked car with the keys in the ignition, preparing to depart from a location, is considered the regular use and operation of an automobile. However, BH’s regular use of an automobile stopped when he opened his car door to exit to engage in a dispute. BH testified that he opened his car door to “sort things out” when things had already become hostile. Both men proceeded to yell and swear at each other. This led to the manager pushing BH into his car, after which a fist fight occurred 10 feet away from BH’s vehicle, which, interrupted what would be considered the regular use of an automobile.
Second, the York Regional Police officers who attended the scene classified the incident as a consensual fight and no charges were laid. Both men called 911 following the incident, complaining that they had been assaulted by the other. Police attended the location shortly after the incident, interviewed both parties, and reviewed the gym’s surveillance footage. BH did not report to police that he was pushed into his vehicle by the manager, nor did the police make a reference to BH making contact with the vehicle in his notes.
Based on the facts and evidence the Adjudicator was unable to conclude that BH’s vehicle was the dominant feature of the incident. No medical reports were submitted to confirm that BH’s injuries were caused by him making contact with the vehicle or that the vehicle directly caused his injuries absent an intervening act. On this basis the assault or physical altercation was the dominant feature of the incident, not BH’s vehicle.