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What started as a rebellious act of egging pedestrians from a moving car led to a coverage dispute, and an interesting interpretation of “ordinary and well-known activity of automobiles”

On April 11, 2014, the plaintiff was walking with a friend on the sidewalk in Waterloo, Ontario, when she was struck in the face by one of several eggs thrown from a speeding car. The plaintiff, a teenage girl, suffered a permanent loss of vision in her right eye. The car and knuckleheads inside were never identified.

The plaintiff sued Intact Insurance, her father’s car insurance company. The plaintiff sued under the OPCF 44R “Family Protection” endorsement of the policy. She also made a claim against the Superintendent of Financial Services seeking mandatory uninsured automobile coverage for damages occasioned by an unidentified motor vehicle when the plaintiff is not insured.

Intact brought a summary judgment motion seeking dismissal of the plaintiff’s claim, arguing there was no genuine issue for trial.

Intact’s position was that the plaintiff’s injuries did not arise directly or indirectly (the modified causation test) from the use or operation of an automobile (purpose test) by an inadequately insured motorist. Rather, the injury was caused by an egg being thrown by a passenger in the car.

Intact argued that the purpose test failed. Intact characterized the use of the car as that of a catapult for the offending egg. Catapulting an egg was not an ordinary and well known use of an automobile, Intact argued, but an aberrant use. The Court disagreed. It held that the driver of the car was transporting passengers and cargo, namely, the egg(s). The car was not a catapult since catapults do not carry passengers nor travel on roads. But transporting passengers and transporting cargo are well known activities involving the use of an automobile. Thus, the egg throwing incident did in fact occur in the course of an ordinary and well known activity of automobiles.

Intact argued that the modified causation test also failed because the act of intentionally throwing an egg from a moving vehicle was an intervening act that broke the chain of causation between the driving of the vehicle by the unidentified motorist and the plaintiff’s injuries. Intact argued this was analogous to a drive-by shooting, and relied on a case in which the Court of Appeal ruled that a drive-by shooting was distinct and an intervening act completely independent from the use or operation of the vehicle.

But the Court again rejected Intact’s argument. The plaintiff had served a Biomechanics expert report wherein the engineer concluded that the kinetic energy imparted to the egg by the speeding motor vehicle rendered the involvement of the motor vehicle the dominant feature that caused the plaintiff’s injuries. Absent the speed and kinetic energy imparted to the egg by the vehicle, the plaintiff would not have suffered the eye injury. So unlike the drive-by shooting case, here there was an unbroken chain of causation linking the injuries to the use and operation of the automobile.

In the result, the plaintiff met both the purpose test and the modified causation test, and Intact’s summary judgment motion was dismissed. We continue to see these two tests evolve and egg-spand in cases involving automobiles. Don’t whisk holding on to rigid interpretations of what could be considered an ordinary and well-known activity of automobiles.

Case: Gilbraith v. Intact Insurance Company, 2019 ONSC 1875

The plaintiff, a teenage girl, suffered a permanent loss of vision in her right eye.