ICBC and Hit and Run "Accidents"

[36] In the case at bar, it is clear that at all material times, the tortfeasor’s motor vehicle was being used as a motor vehicle.  That it was being used to facilitate the commission of a criminal offense no more negates its use as a motor vehicle than if it were being driven to or from the scene of a bank robbery, or as a vehicle to transport a kidnap victim.  In my view, a finding in the present case that the motor vehicle was being used as a motor vehicle, notwithstanding that it was used in the commission of the offense of robbery or the civil tort of assault, is consistent with the reasoning of Binnie J. in the Citadel case.  It is clear from Binnie J.’s reasoning that the fact a motor vehicle is used to facilitate or effect a criminal purpose does not render its use as anything other than as a motor vehicle.

[37] The question that arises in the case at bar is whether the use of the motor vehicle was fortuitous or incidental to the act that caused the injury or whether it was integral to it.

[38] In my view, in the case at bar, unlike the cases of Citadel, Chan, Collier or Lumbermens, the act causing the alleged injury to the plaintiff was directly caused, and not isolated from, or severed from the use of a vehicle as a vehicle.  Here, the uncontradicted evidence is that, as the passenger in the vehicle grabbed the plaintiff’s purse, which she was carrying on her shoulder, the driver accelerated the vehicle, and it was that acceleration in combination with the passenger’s grip on the plaintiff’s purse that caused her to fall to the ground and be dragged by the vehicle as it accelerated away.  For the present case to be analogous to the circumstances in Chan, in which Binnie J. found a severance between the tortfeasor’s use or operation of his motor vehicle and the act causing the injury, the tortfeasor’s motor vehicle in the present case would have had to be stationary and not implicated in the action by which the plaintiff was thrown to the ground and injured.  In my view, there is a clear causal link between the use of a motor vehicle as a motor vehicle in the present case, and the injuries alleged by the plaintiff.

[39] In my view, this case is distinguishable from the facts in Co-operative Fire, supra, relied on by the applicant.  In that case the court was confronted with the need to construe the effects of an exclusion clause in a policy of insurance excluding coverage for a “bodily injury or damage caused intentionally by or at the direction of an insured”, and as well s. 2 of the Insurance Act, 1968 of New Brunswick, upon the circumstances at issue.  Section 2 of the Insurance Act reads as follows:

… a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity … except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage ….

[40] Thus the court in Co-operative Fire was dealing with whether an act by the insured was governed by a term in the contract of insurance excluding liability for intentional acts.  The court found that although the consequences were unintended in that case, the unlawful act causing them was not, and hence it (the act) fell within the scope of the exclusion clause.

[41] In the present case, there is no exclusion clause.  It is true, as the applicant submits, that in s. 24 the occurrence giving rise to the bodily injury or death that is the subject of a claim is referred to as an accident in various subsections.  However, in those cases that the applicant relies on as support for the proposition that the word “accident” is to be given “its ordinary and popular meaning” and means “any unlooked for mishap or occurrence”, the operative wording is somewhat different from that in the case at bar.  In Canadian Indemnity, supra, the relevant term being applied was as follows:

The Coverage given by this policy applies only to accidents or occurrences arising out of and incidental to the business operations of the Insured and originating during the policy period.

[see Straits Towing Ltd. v. Washington Iron Works¸ [1970] 74 W.W.R. 228, 1970 CarswellBC 157 (er) (B.C.S.C.) at 230].

[42] In Mutual of Omaha, supra, the applicable term under consideration was:

“Injuries” means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained….

[43] Thus, in both cases, unlike in the present case, the policies of insurance contained a clause that expressly limited coverage to damage or injuries caused by accidents.

[44] As Finch J.A. noted in Chan, supra, however, s. 24 does not refer to bodily injury or death arising from the negligent or accidental use or operation of a motor vehicle.  It requires “only that the plaintiff establish ‘a cause of action’ against the driver (or owner) and that the injury arises out of the use or operation of the motor vehicle”.  It was Finch J.A.’s conclusion in Chan that the injury arose out of the use or operation of the motor vehicle (that is, his conclusion with respect to causation) that attracted disagreement from the Supreme Court of Canada in Citadel, not his conclusion that intentional acts fall within the scope of s. 24.

[45] Indeed, in Citadel, Binnie J., in giving examples of what would attract coverage under s. 24, did reference actions (in exploring the purpose test) that, under the reasoning in Saindon, would attract the characterization of intentional.  In particular, he gave an example of a motorist intentionally trying to jump his vehicle over the interstate highway at high speed, “Evel Knievel style”, and crashing down on the plaintiff’s vehicle.  There, he held, “…there is no doubt that [the tortfeasor] would have been driving the vehicle and driving meets the Amos purpose test.”

[46] Justice Binnie observed that the relevant Ontario legislation, which is similar to s. 24, “is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle”.  Binnie J. quite explicitly rejected the argument that “coverage can be denied if the tortfeasor is engaging (as here) in criminal activity”.  He went on to note “[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”.

[47] In my view, the reasoning of Binnie J. in Citadel is consistent with that of Finch J.A. in Chan, so far as it relates to the extent s. 24 covers intentional criminal acts.  The case at bar does not involve a tortfeasor seeking coverage for his intentional criminal actions in the face of either policy considerations or an express statutory or contractual exclusion.  Rather, it involves an insured seeking coverage for an injury arising from the use or operation of a motor vehicle, which is the foundation for s. 24.  The use of the word “accident” to describe the occurrence giving rise to the injury does not, in my view, modify the scope of s. 24 to exclude intentional criminal acts of which the use or operation of a motor vehicle forms an integral part.  In any event, in the present case, while an inference can be drawn that the driver of the motor vehicle was complicit in his passenger’s unlawful act, the evidence does not go so far as to preclude a finding that the use or operation of the motor vehicle in the course of those events was, as well, negligent.  There was no evidence that the tortfeasor intended to pull over or injure the plaintiff, only that he intended to facilitate a theft that involved some indirect application of force to the plaintiff.  The ultimate cause of the plaintiff’s alleged injuries was incidental to the tortfeasor’s purpose and it could not be said to be inconsistent with the meaning of the word “accident” as it is used in s. 24.

[48] I therefore dismiss the defendant’s application for an order dismissing the plaintiff’s action, and order costs to the plaintiff.