Driver entitled to Accident Benefits when injured outside their Vehicle

In a recent case, the vehicle insurer contested an Arbitrator’s decision that the insured was entitled to Accident Benefits under his automobile insurance policy, when the accident victim’s injuries occurred while outside his vehicle and resulted from being pushed by a passenger. This case, North Waterloo Farmers Mutual Insurance Co. v. Samad (2018), involved a man who was using his van as a taxi service and was in the process of driving three passengers to a house party in Newmarket.

On route to the destination, the driver and passengers got into an argument about directions and as a result, the driver pulled over onto the side of the road. At this point, a front-seat passenger punched the driver in the face so the driver told the passengers to get out of his vehicle.  While walking around the van to close a rear door left open by the passengers, the driver was then pushed by the passenger, lost his footing on the ice and fell into the ditch.  The assault and the fall caused the driver to sustain injuries to his shoulder and leg.

The passenger who committed the assault was convicted of assault causing bodily harm and the injured man sued his attacker for damages.  Further, the injured driver received compensation from the Criminal Injuries Compensation Board and also sought no fault accident benefits under his automobile insurance policy. The claim for Statutory Accident Benefits is the subject of this case.

The van was insured only for personal use which meant that it’s use as a taxi on the date of the accident was contrary to the conditions of the vehicle insurance contract under the Insurance Act.  However, the insurer did not raise the issue of the driver’s use of the vehicle as a taxi and the Arbitrator ruled that stopping a vehicle to pick up or drop off passengers falls under regular use of an automobile.

In order to make a ruling on whether the accident entitled the driver to Accident Benefits under Ontario law, the FSCO Arbitrator stated that there are two key issues that must be resolved:

  1. whether or not the accident arose out of ordinary use/operation of an automobile; and
  2. whether the use/operation of the automobile directly caused the injury.

On these questions, the Arbitrator found that the use of the van was, in fact, a direct cause of the driver’s injuries because the injuries would not have happened if he was not using the vehicle.  Also, there can be multiple direct causes of injuries and in this case, the assault was only one of the causes of the injuries and the injuries resulted from a series of events that began with the use of the automobile.

In the insurer’s Appeal of the Arbitrator’s decision, the Director’s Delegate upheld the Arbitrator’s findings and agreed that the use of the vehicle contributed to the driver’s injuries and was not simply incidental to the assault, since the driver was in the process of using his vehicle when the assault and icy surface contributed to his fall. Further, the driver planned to continue operating the van after he closed the passenger sliding door, and in fact, did drive himself despite having suffered a broken leg. The Director’s Delegate also held that using the taxi was an ordinary activity and noted that this issue was not raised by the Insurance Company with respect to contravening the terms of the insurance contract.  On all these findings, the driver was entitled to compensation under the Statutory Accident Benefits of his automobile insurance policy.

Under Ontario’s legislation governing Statutory Accident Benefits, 3(1) of O. Reg. 116/16 of the Statutory Accident Benefits Schedule, an ‘accident’ is defined as an incident where the operation or use of an automobile directly causes an injury or damage to such personal articles as prescription eyewear, hearing aids, dental devices, prosthesis, or other medical devices.  And, although the ‘accident’ must be the direct cause of injuries or damage in order to qualify for compensation, the fact that other factors contributed to your losses does not exempt you from receiving coverage as long as your injuries would occurred while you were in the process of operating your vehicle.


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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.