Initial one hour consultation is free!

Beament Hebert Nicholson LLP Blog

Incident or Accident

To qualify for accident benefits under a motor vehicle accident policy, the injury must be the result of “an incident in which the use or operation of an automobile directly causes an impairment.” So how do we determine if there is a direct cause? We look at the case of Clark v TTC Insurance Company Ltd., [2014] Appeal P13-00012.

This is a case where a conflict between two passengers on a TTC bus in October 2009 escalated until the applicant stumbled and fell. He claimed that his toe came into physical contact with the under-side of the bus seat which led to the amputation of his lower leg several months later. Witnesses testified that the bus was not moving and surveillance supports the same. The Arbitrator held that the injury was not an “accident” because the bus merely provided the opportunity and the location for a fight. This was an assault in a vehicle which does not fit the definition of an “accident”. The bus played no more than a passive role.

The Arbitrator’s decision was upheld on appeal. The cases relied upon were Downer v. The Personal Insurance Company, (2012) O.N.C.A. 302 and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 O.N.C.A. 19. Both of these cases were assault cases where the vehicle was found to be merely the location for the assault.