An Ontario court recently found that the injuries sustained by a pedestrian when eggs were thrown at her from a vehicle arose "directly or indirectly from the use or operation of an automobile". The court determined that the act of egg throwing in this case was not a distinct and intervening act from the use or operation of the vehicle, as the speeding vehicle created speed and kinetic energy for the egg(s) which were crucial in causing the extensive damage it did.
Facts
The plaintiff in Gilbraith v Intact Insurance Company1 was a pedestrian walking along a sidewalk with her friend when a car approached her from the opposite direction. The front passenger threw an egg or multiple eggs at her, striking her right eye, which caused serious and permanent injuries.2 It was believed that the car was travelling 10-20km/h above the speed limit, and it did not stop. Both the car and its occupants remained unidentified.3
As a result, the plaintiff commenced a claim against Intact Insurance Company ("Intact") in accordance with the OPCF 44R Family Protection Coverage Endorsement of the standard Ontario automobile insurance policy. The relevant section of the Endorsement provided:
Insuring Agreement
[The] insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of the bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile. [Emphasis added]4
Intact moved for summary judgment, arguing that the plaintiff's injuries did not arise directly or indirectly from the use or operation of an automobile, but rather by an egg thrown from a passenger in the vehicle.
Law
It is well-established that courts apply a two-part test in determining entitlement to coverage under the OPCF 44R Endorsement for bodily injuries or death that arose "directly or indirectly from the use or operation of an automobile". The two parts are: (i) the purpose test, and (ii) the modified causation test:
Purpose test ("use or operation"): Did the incident occur in the course of the ordinary and well known activities of automobiles?
Modified causation test ("arising directly or indirectly"): Was there an unbroken chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicles, which is shown to be more than simply fortuitous or "but" for?5
Purpose Test
The purpose test generally has a lower threshold where the court merely examines whether the incident occurred through the use or operation of ordinary and well-known activities of automobiles. Transporting individuals or cargo including rocks and guns have been found to meet the purpose test.6
It is notable that here, Intact argued that the motor vehicle was used as a catapult for an egg, which was not an ordinary and well-known use to which motor vehicles are put. The Ontario Superior Court rejected this contention and found that the driver was simply transporting passengers and cargo (the egg(s)) which was an ordinary and well-known activity of automobiles.
Modified Causation Test
The court's finding in the modified causation test appears to stand directly against the Supreme Court's decision in Vytlingam.
Intact relied upon the courts in Vytlingam and Russo to argue that the modified causation test was not satisfied due to a broken chain of causation. In Russo, the plaintiff was injured in a restaurant due to a drive-by shooting. The Court of Appeal found that the shooting was a distinct and intervening act completely independent from the use or operation of the van.7
Vytlingam involved tortfeasors who drove to an overpass with rocks, before exiting the vehicle and dropping the rocks onto the road below, causing catastrophic injuries. The Supreme Court of Canada found that the chain of causation was broken as the tort, which consisted of dropping rocks from the highway, was separate from the use and operation of the motor vehicle.8
In particular, the Supreme Court in Vytlingam explicitly rejected the British Columbia Court of Appeal's finding in Chan v Insurance Corp. of British Columbia,9 which involved a passenger injured by a brick thrown from an oncoming vehicle.10 The court in Chan found it was impossible to isolate the throwing of the brick from the use or operation of the vehicle as two entirely separate and distinct acts; instead, it said that operation was "part and parcel" to the throwing of the brick.11 The court in Vytlingam opined:
...Nevertheless, if the analysis had focused on the elements of the tort that gave rise to the tortfeasor's liability (as it should have), the fact the brick was thrown from a car rather than a horse does not qualify it as a motoring activity. The rock throwing was an intervening act. Neither in Chan nor in the present appeal was the tortfeasor at fault as a motorist.12
Justice Sosna distinguished this case from Vytlingam because the egg was thrown from a speeding vehicle, where he found that the speed was crucial to changing the likelihood of the plaintiff's injury from unlikely to "more likely than not".13 As a result, he concluded there was an unbroken chain of causation as throwing the egg(s) from a speeding vehicle was not a distinct and intervening act independent from the use or operation of the vehicle.14
The court here essentially adopts the reasoning in Chan and justified its approach by considering the speed of the motor vehicle. It found that where speeding increased the likelihood of the injury, an unbroken chain of causation linked the injuries and damages to the use and operation of the motor vehicle.
Conclusion
Although the court distinguished its facts from those of Vytlingam, its findings muddy the waters on how the modified causation test should be applied, particularly when items are propelled from a moving vehicle resulting in injury. Chan found that in such circumstances, there is no intervening or distinct act, whereas Vytlingam explicitly overruled Chan. The court in Gilbraith did not clearly address why speeding, which affected the balance of probabilities of injuries, resulted in an unbroken chain of events. As a result, this decision leaves the fate of future cases involving projectiles from a vehicle that result in injury unclear.
Footnotes
1. Gilbraith v Intact Insurance Company, 2019 ONSC 1875, [Gilbraith].
2. Gilbraith at paras 7-9.
3. Gilbraith at paras 3 and 61.
4. Gilbraith at para 28.
5. Gilbraith at para 33; Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC 46 at para 12, [Vytlingam].
6. Vytlingam at para 33, Russo at para 24 (ONCA).
7. Russo v John Doe, 2009 ONCA 305, at para 34.
8. Vytlingam at para 38.
9. Vytlingam at para 31.
10. Chan v Insurance Corp. of British Columbia, 60 ACWS (3d) 605, [Chan].
11. Chan at para 30.
12. Vytlingam at para 31.
13. Gilbraith at paras 56 and 61.
14. Gilbraith at para 62.
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