August 29, 2011 by Canadian Underwriter
The Ontario Superior Court of Justice has found that a man attacked and beaten in his car while parked at a gas station was involved in an “accident” under the Statutory Accident Benefits Schedule (SABS).
In Downer v. Personal Insurance, Michael Downer was parked at a gas station pump in the east end of Toronto in February 2000. He sat in his unlocked Jeep, with the engine still running and his seat belt buckled, counting a stack of money he had just withdrawn from the bank.
A group of four men swarmed the vehicle. A man entered the vehicle on the passenger side and began to beat him, and someone on the driver’s side opened the door and did the same. In an agreed statement of facts Downer describes how his assailants entered the vehicle and tried to pull him from it. He managed to get the vehicle into gear and flee the scene. Beaten, confused and scared, he returned to his apartment where he iced his injuries. He then decided to drive himself to a nearby police station, along the way, he flagged a police officer who began an investigation into the incident.
Downer collected $73,061.27 from his insurer for depression, anxiety, post-traumatic stress disorder, chronic low back pain, migraine headaches and other ailments, including physical limitations on his ability to function.
In August 2001, his insurer advised him that no further accident benefits would be paid and that the insurance company would be seeking repayment of all benefits paid, pursuant to section 47(1) of the SABS.
“The defendant insurance company takes the position that the payment of accident benefits was the result of an error,” the decision says.
In her decision, Ontario Superior Court Justice Ellen B. Murray asked the questions: Does Downer’s accident result from the ordinary and well-known activities to which automobiles are put? Is there a direct and proximate causal relationship between the plaintiff’s injuries and the ownership, use or operation of his vehicle, or is the connection merely incidental or fortuitous?
“Pulling into a gas station in order to purchase fuel is an activity to which all vehicles are put. The first part of the test is therefore satisfied,” Murray wrote.
With regards to the second part of the test, Murray decided that Downer’s injuries were directly linked to the use and operation of his vehicle because they were caused by assailants whose purpose was to seize possession and control of his automobile.
“The assault on Downer was not random, but arose out of his ownership, use and operation of his vehicle,” she wrote.
“In this case there is a direct or proximate causal relationship between the plaintiff’s injuries and the ownership, use or operation of his vehicle and that Mr. Downer was involved in an “accident” within the meaning of the SABS.”