Pedestrian Seeks Damages After Being Hit With Projectile Thrown From Car
When we think of automobile-related injuries, we naturally think of those coming as a result of an automobile hitting another car or a person. But that’s not always the case. In a recent decision from the Ontario Superior Court of Justice, the court was asked whether an insurance company could be granted summary judgment to dismiss a claim from a woman who was injured by an egg thrown from an automobile.
On April 11, 2014, the plaintiff was walking on a sidewalk with her friend when a car approached them from the opposite direction. Both she and her friend estimated it was speeding. At some point, an egg (or eggs) was thrown from the car. One of them struck the plaintiff in the eye, leaving her with a permanent loss of central vision in that eye. The vehicle left the scene and neither it nor its owners were ever identified.
The plaintiff responded by commencing a claim in accordance with the OPCF 44R Family Protection Coverage Endorsement against the insurer who provided automobile insurance to her father. She also made a claim against the Superintendent of Financial Services (“The Superintendent”) seeking the mandatory uninsured automobile coverage for the damages she received from the unidentified motor vehicle when she was not insured.
The insurer responded by bringing a motion for summary judgment, seeking dismissal of the action. The Superintendent brought a companion motion. The plaintiff asked the court to dismiss the motions.
The positions of the insurer and Superintendent
The insurer submitted that based on the facts there was no genuine issue requiring a trial. They argued, “the plaintiff’s injuries did not arise directly or indirectly from the use or operation of an automobile by an inadequately insured motorist, but by an egg being thrown by the passenger in the car.” The Superintendent agreed but added that if the injuries were occasioned by a motor vehicle, then the insurer should provide coverage.
The plaintiff’s position
The plaintiff argued that her injuries arose from the use of operation of the automobile from which an egg (or eggs) was thrown. She argued the incident arose in the course of the ordinary and well-known activity of motor vehicles, “and there was an unbroken chain of causation linking the injury to the use and operation of the motor vehicle, which was more than fortuitous.”
She added that the velocity of the egg imparted by the speeding motor vehicle rendered the automobile the dominant feature that caused her injuries.
The court’s analysis
The court referred to a 2007 decision from the Supreme Court of Canada which dealt with a case where people were catastrophically injured when their vehicle was struck by a rock that had been intentionally dropped from an overpass. In that case, the tortfeasors had driven to the scene with the rock in their vehicle, existed the car, dropped the rock, and fled. The Supreme Court found “[t]he OPCF 44R is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle…[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example…the tortfeasor whose conduct is the subject matter of the indemnity claim be at fault as a motorist”
The test coming out of this decision was articulated as follows:
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 vehicle, which is shown to be more than simply fortuitous or ‘but’ for?
In finding that the modified causation test had been met, the court wrote,
“As set out in the Report, absent speed and kinetic energy imparted into the egg by the vehicle, the plaintiff would not have suffered a choroidal rupture and vitreous hemorrhage to her eye when struck by the egg. The Report opined that a driver in charge of a motor vehicle travelling 60 to 70 km/h, instead of the posted 50 km/h, increases the likelihood of the plaintiff suffering injuries from between 1 percent and 49 percent to between 13 percent and 84 percent. Thus, only by speeding did the driver make the plaintiff’s injury more likely than not. As discussed above, and in accordance with Huang, I am only relying on the Report as ‘some evidence’ for the limited purpose of assessing whether there is a genuine issue requiring a trial.”
The court also found the plaintiff to have passed the purpose test. The driver had been transporting passengers and cargo, which are well-known activities involving the use of an automobile.
The court found there was a genuine issue for trial, with the plaintiff having met both the purpose test and the modified causation test. Both motions were dismissed.
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