In the recent decision of Gilbraith v. Intact Insurance Company, 2019 ONSC 1875, the Court had to determine whether the plaintiff’s injuries arose from the use or operation of an automobile by an inadequately insured motorist, or by an egg being thrown by a passenger in the car.
The Plaintiff’s position was as follows:
- Her injuries arose from the use or operation of a motor vehicle from which an egg(s) was thrown. The incident occurred in the course of the ordinary and well known activity of motor vehicles, and that there was an unbroken chain of causation linking the injury to the use and operation of the motor vehicle, which was more than fortuitous.
- That the added velocity of the egg imparted by the speeding motor vehicle rendered the involvement of the motor vehicle the dominant feature that caused her injury. The plaintiff relied on the Injury Biomechanics Report.
Reference was made to the Supreme Court of Canada’s decision in Vytlingam (Litigation Guardian of) v. Farmer, where the tortfeasors drove a motor vehicle to an overpass, exited the vehicle, and dropped a rock from the overpass onto traffic below, causing catastrophic injuries to the Vytlingams. The Supreme Court of Canada held:
I do not accept the insurer’s contention that the use of Farmer’s vehicle for the purpose of transporting rocks to the scene of the crime fell outside the scope of the ordinary and well-known activities to which automobiles are put.
The Ontario Court of Appeal decision in Russo v. John Doe was also considered. In that matter, Ms. Russo sustained spinal injuries that rendered her a paraplegic as a result of being caught in the crossfire of a drive-by shooting. The Court of Appeal held that the purpose test had been met, at para. 24:
The motion judge, in concluding that the purpose test was not met in this case, refused to accept that “it is an ordinary use of an automobile when you add to the scenario that the vehicle is being used to carry guns and assailants to effect a shooting and to escape the scene.” …… I would put things much more generically – the motor vehicle was used to transport passengers and apparatus from one place to another. Peretz used the van to transport Borrelli and Christoforou and their guns from wherever they were to the front of the restaurant. Viewed from this perspective, Peretz’s use of the van was a well-known and ordinary use of an automobile. The purpose test, in my view, was met on the facts of this case, as far as Peretz is concerned.
Arguments were also advanced regarding the Modified Causation Test (“arising directly or indirectly”). Intact argued that the modified causation test requires an unbroken chain of causation linking the conduct of the motorist, as a motorist, to the injuries in respect of which the claim is made. The link must be shown to be more than simply fortuitous or “but for”. Justice Sosna found Vytlingam to be distinguishable from the present matter, where an egg was thrown from a speeding motor vehicle, causing injury. In this case, the motor vehicle was in motion and the egg was thrown from within the motor vehicle. The tortfeasors did not exit the motor vehicle in order to throw the egg(s).
It was concluded that throwing egg(s) from a vehicle travelling 50 to 60 km/h resulted in injury, and therefore, resulted from the use or operation of the motor vehicle. Accordingly, the summary judgment motion was dismissed.
In my opinion, the reasoning is sound in the decision, but it will be curious whether the action is further appealed. The expert’s report here was key in establishing the speed of the vehicle, coupled with the egg throwing, as being the reason the injury was so severe.