INSIGHT INFORMATION: LITIGATING CATASTROPHIC DISABILITY AND DAMAGES PROVING CAUSATION HOW TO CROSS THE RUBICON William Westeringh, Managing Partner-Vancouver, Fasken Martineau DuMoulin LLP and Karen Ameyaw, Student, Fasken Martineau DuMoulin LLP Since 1990, when the Supreme Court of Canada rendered its decision in Snell v. Farrell 1 ( Snell ), followed by its 1995 decision in Athey v. Leonati 2 ( Athey ), injured parties, tortfeasors whose actions caused injuries to others, and their respective insurers have watched with interest as the law relating to causation in personal injury cases, appeared to be evolving. The trend appeared to be moving toward favouring injured parties and tort-feasors seeking coverage, at the expense of insurers, both in the third party and first party context. Perhaps not surprisingly, the trend seemed to evolve from hard cases, where unless liability or coverage was found to have been established, innocent and seriously plaintiffs would be denied compensation. However, three 2007 decisions rendered by the Supreme Court of Canada may be signalling that the pendulum is beginning to swing the other way. In relation to tort, the requirement that there be a link between a defendant s tortious act, and the plaintiff s resulting injury in order to affix liability on the former, is the hallmark of causation. The importance of this connection was expressed by Sopinka, J, in Snell v. Farrell, supra, when his lordship stated: Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to 1 2 Snell v. Farrell, [1990] 2 S.C.R. 311. Athey v. Leonati, [1996] 3 S.C.R. 458. DM_VAN/900298-00006/6755171.1
the victim in order to justify compensation of the latter out of the pocket of the former. 3 Traditionally, the test used to establish causation has been the but for test, which places on the plaintiff the onus to prove, on the balance of probabilities, that his or her injury would not have occurred but for the defendant s negligent conduct. If the plaintiff succeeded in discharging this onus, the causal connection was deemed to have been established. Traditionally, exceptions to this test were rare, limited to extreme circumstances such as those found in Cook v. Lewis 4. In that case, it was undisputed that the plaintiff has been struck and injured by a bullet negligently fired by one of two identified hunters, who apparently discharged their rifles at virtually the same time. Although the plaintiff could establish, on the balance of probability, that one of the defendants had caused his injury, he could not prove which one of the two was actually responsible. To avoid the plaintiff being denied recovery in such circumstances, the court concluded that both defendants should be found responsible, essentially reversing the onus of proof. Absence such exceptional circumstances however, the onus remained on the injured plaintiff to establish that there was a direct causal link between the injury he or she sustained and the negligent or deliberate wrongful act of an identified defendant. The significance of the decision in Snell is the court s recognition that the rigid application of the but for test, in that case in a medical malpractice suit, had the potential to deprive injured victims of relief in some instances. In particular, the court recognized that due to the complexities of proof in cases where the defendant(s) may be in a much better position to establish the cause of an injury than the plaintiff is, the traditional approach to causation might operate to deprive plaintiffs of compensation, simply because they could not prove causation even though it in fact existed. While in Snell, the Supreme Court of Canada reiterated that the onus remained on the plaintiff to establish that the defendant s negligence caused or contributed to the plaintiff s injury, it also 3 4 Snell v. Farrell, supra, at page 326. Cook v. Lewis [1951] S.C.R. 830. DM_VAN/900298-00006/6755171.1 2
indicated that causation did not need to be established by scientific precision, and indeed in some circumstances from very limited affirmative evidence presented by a plaintiff, an inference of causation could be drawn in the absence of evidence to the contrary. Snell seemed to signal therefore, the court was prepared to apply less onerous standards of causation in appropriate circumstances. One such less onerous standard is the material contribution which recognizes not a single necessary and sufficient cause, but numerous factors which together contributed to the result 5. The exact relationship between the but for test and the material contribution test was not clearly delineated however, and the exact meaning of material contribution, and its application, was unclear until the recent decision in Hanke v. Resurfice Corp. 6 ( Hanke ). Athey is considered the leading case for causation. The procedural history of the case involved a plaintiff seeking damages for injury and loss against two defendants after being a victim in two successive motor vehicle accidents. The Plaintiff, who had a history of back problems, suffered a disk herniation shortly after the last accident. The trial judge found that accidents were not sole cause of the plaintiff s injury and assessed the motor vehicle accidents as being 25% responsible 7. The Court of Appeal dismissed the appeal and the argument that the plaintiff was entitled to 100% of the damages from the defendants because they material contributed to the injury. The Supreme Court of Canada reversed the trial decision and endorsed the material contribution test and found the defendants 100% liable. The unanimous court declared that [i]t is a well established principle that a defendant is liable for any injuries for which the defendant s negligence is cause 8. The adoption of a lower threshold lent credence to a shift, indicated in Snell, that the courts were open to applying less rigid standards of causation. Further evidence of this flexibility is demonstrated in the principles of causation discussed in the case: 5 6 7 8 Lewis Klar, Tort Law, 3d ed. (Toronto: Thomson Canada, 2003) at 396. Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333. Athey v. Leonati, [1994] B.C.W.L.D. 1122 (B.C.S.C. Dec. 29, 1993). Athey v. Leonati, [1996] 3 S.C.R. 458. DM_VAN/900298-00006/6755171.1 3
Causation principles discussed in Athey 9 The general, but not conclusive, test for causation is the but for test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant (para 14) The but for test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant s negligence material contributed to the occurrence of the injury. A contributing factor is material if it falls outside the de minimus range (para 15) Causation test is not to be applied too rigidly (para 15) Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof (para 16) Not necessary for the plaintiff to establish that the defendant s negligence was the sole cause of the injury (para 17) Defendants remain liable for all injuries caused or contributed to by their negligence (para 17) It is sufficient if the defendant s negligence was a cause of harm (para 19) The Court s inclusion of the words not conclusive and unworkable with respect to the but for test seemed to allow the uncertainty to persist on whether the but for test was the primary test. This uncertainty was resolved by Hanke. Hanke involved a plaintiff, an arena operator, who was injured in a gasoline explosion while he was preparing to operate an ice resurfacing machine. The plaintiff advanced a product liability claim against the manufacturer of an ice re-surfacing machine (Resurfice Corporation), and the distributors of that product, (LeClair Equipment Ltd.). At issue was whether the defendants were liable for design defects in the machine including failure to warn of known dangers or dangers that should have been known. 9 Athey, supra note 8, at para 14-19. DM_VAN/900298-00006/6755171.1 4
At trial level, the judge found that the plaintiff failed to prove on the balance of probabilities that either defendant created a foreseeable risk of harm. The court stated [t]he danger that an operator would put hot water into the gasoline tank was not reasonably foreseeable and there was no duty to warn 10. The trial judge, upon finding that the evidence did not establish that the manufacturer or the distributors were at fault, dismissed the plaintiff s claim. The Court of Appeal took issue with the trial judge s causation approach. The application of the but for test by the trial judge resulted in reasoning that but for the appellant putting or leaving the hose in the gasoline tank, the explosion would not have occurred and that the [a]ppellant was solely the cause of the accident and was thus 100 per cent responsible for his injuries 11 The Court of Appeal advanced the material contribution approach and cited the principle in Athey that the but for test is unworkable in some circumstances. The court cited this approach as the more appropriate test. The Supreme Court of Canada handed down its decision in Hanke on February 8, 2007 and settled the uncertainty within the causation tests. The Court was definitive in stating that the basic test for determining causation remains the but for test, including situations of multiple causes. In clarifying the appropriate circumstances that the material contribution test can be applied, the court iterated two requirements: 1. It must be impossible for the plaintiff to prove that the defendant s negligence caused the plaintiff s injury using the but for test. The impossibility must be due to factors that are outside of the plaintiff s control. 2. It must be clear that the defendant breached a duty of care owed to the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. The plaintiff s injury must fall within the ambit of risk created by the defendant s breach. 12 10 Hanke v. Resurfice Corp., 333 A.R. 371, 2003. 11 Hanke v. Resurfice Corp., 380 A.R. 216 at para 10 and 12, 2005. 12 Hanke, supra note 6 para 25. DM_VAN/900298-00006/6755171.1 5
Thus, the material contribution test is clearly an exception recognized in law only in special circumstances, while the but for test has been re-established as the governing test in all but exceptional cases. While Hanke does not purport to overrule Athey, it signals that exception to the but for test will be rare. Of the two examples provided by the court, where the material contribution test might be applicable, one is Cook v. Lewis, (supra). The other, applies where it is impossible to prove what a particular person in the causal chain would have done have the defendant not committed a negligent act or omission, thus breaking the but for chain of causation. Reference is made to the example where it was impossible to determine that a donor whose tainted blood infected the plaintiff, would not have given blood if the defendant had properly warned him against donating blood. As the court pointed out, in that example, the impossibility of establishing causation and the element of injury related risk created by the defendant, were central to the case. 13 While it appears that Athey continues to be a good law, to the extent it implies that the material contribution test could be used interchangeably with the but for test, reducing the burden of proof on injured plaintiff, the tone of the Hanke decision suggests otherwise, and the traditional but for test appears to have been firmly re-established as the test of causation in Canada. While the but for, and material contribution, debate was taking place in relation to tort liability, another debate was taking place in relation to first party, no fault, under insured motorist protection, and third party liability insurance. One of the features of automobile insurance is the terms of coverage and exclusions. In British Columbia, compulsory automobile insurances provided by the Insurance Corporation of British Columbia ( ICBC ) with the terms of coverage contained in the Insurance (Vehicle) Act and regulations. In Ontario, insurance is provided by private insurers with the terms of coverage outlined in standard policies that are approved by the government regulator and by provincial legislation. 13 Hanke, supra note 6 para 27 and 28. DM_VAN/900298-00006/6755171.1 6
In British Columbia, the Insurance (Vehicle) Act Regulations, under Part 7 Accident Benefit, outlines the coverage and benefits extended to an insured, in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle. 14 In jurisdictions like British Columbia where the term accident is not specifically defined, and that it is not restricted to losses following directly from the use and operation of an automobile, the courts have interpreted this section broadly. 15 In Ontario, every automobile insurance policy provides for the payment of no-fault or accident benefits by an insured person s own car insurer. These accident benefits are set out in a schedule to the Insurance Act, called the Statutory Accidents Benefits Schedule ( SABS ). As first party, no-fault benefits are contractual, it would not surprise most observers that courts have historically given an expansive interpretation to such policy language, favouring insureds. Until recently however, it appeared as though that the courts might be adopting the reasoning applicable to the interpretation of language in the no-fault context, and applying it to circumstances involving underinsured motorist, unidentified motorist, and even third party liability, coverage. The leading case for the interpretation of arising from the use or operation of a vehicle is Amos v. Insurance Corp. of British Columbia 16, ( Amos ). In Amos, the plaintiff was insured by a standard ICBC automobile insurance policy. While lawfully operating his vehicle in the United States, he was subjected to an unprovoked criminal attack where he was shot while in his vehicle and sustained a serious, disabling and permanent injury. The plaintiff was denied liability under the ICBC automobile insurance policy for medical and other benefits. The action sought a declaration of entitlement to those benefits. 14 15 16 Insurance (Vehicle) Regulation B.C. Reg. 447/83 O.C. 1897/83. Richard J. Bundus, Insurance Law in Canada vol. 2, (Toronto: Thomson Canada Limited, 2002), at 17-19. Amos v. Insurance Corp. of British Columbia [1995] 3 S.C.R. 405. DM_VAN/900298-00006/6755171.1 7
At the trial level, at issue was whether the accident, [arose] out of the ownership, use or operation of a vehicle as stipulated in s. 79(1). Hardinge, J. applied principles derived from leading S.C.C. cases of the day, Reliance Petroleum Ltd. v. Stevenson 17, and Law Union & Rock Insurance Co. v. Moore s Taxi Ltd. 18, that stated the test for ownership, use or operation were the purpose and causation tests. The tests had the following requirements: First, both the purpose test and the chain of causation test must be satisfied before injuries caused by an accident can be said to have arisen out of the ownership, use or operation of a motor vehicle. Second, even if anything more than a minimal connection between the ownership, use or operation of a vehicle and accidental injuries is sufficient to establish the required nexus, mere presence in a vehicle when injuries are sustained is not sufficient. 19 The trial judge found that the injuries did not arise from the accident and the vehicle was merely the situs of the attack 20. The unanimous Court of Appeal affirmed the trial judge s interpretation of s. 79(1) and found that there was a requirement for a causal connection between the accident and the ownership, use or operation of the vehicle. 21 The court opined: In my view, it is not sufficient that the accident happens while the injured party is using or operating the vehicle. Nor is it sufficient that the injured party simply happens to be in the vehicle at the time the accident occurs if the accident bears no reasonable relationship to the ownership, use or operation of the vehicle. The Supreme Court of Canada considered three issues on appeal: 1. Did the BCCA err in adopting a causal connection test in interpreting s. 79(1); 17 18 19 20 21 Reliance Petroleum Ltd. V. Stevenson, [1956] S.C.R. 936. Law Union & Rock Insurance Co. v. Moores Taxi Ltd., [1960] S.C.R. 80. Amos v. Insurance Corp. of British Columbia, [1993] B.C.J. No. 251. Amos, supra note 15 at para 10. Amos v. Insurance Corp. of British Columbia, 113 D.L.R. (4 th ) 269 page 274. DM_VAN/900298-00006/6755171.1 8
2. In any event, did a causal connection exist between the accident and the ownership, use or operation, of Mr. Amos vehicle within the meaning of s. 79(1); and 3. Did the BCCA err in holding that Mr. Amos van was merely the situs of a shooting and not causally connected to his injuries. 22 Major, J. noted that the no-fault character of the benefits in question did not change the interpretation of s. 79(1), but noted that traditionally the provisions providing coverage in private insurance policies had been interpreted broadly in favour of the insured, while exclusions were interpreted strictly and narrowly against the insurer. Accordingly, while his lordship concluded that s. 79(1) should not be stretched beyond its plain and ordinary meaning, at the same time, it ought not be given a technical construction that defeated its object and the intent of the legislation providing coverage. His lordship therefore proposed a two-part test to be applied to interpreting this section as follows: 1. Did the accident result from the ordinary and well-known activities to which automobiles are put? 2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous? 23 The court found the purpose test was satisfied as the plaintiff s accident resulted from the ordinary and well-known activities to which automobiles are put. The court found that the causal test required a more liberal interpretation because the term arising out of is broader than caused by 24. Major, J. used the broader interpretation to find: 22 Amos, supra note 16 at page 412. 23 Amos, supra note 16 at page 415. 24 Amos, supra note 16 at page 417. DM_VAN/900298-00006/6755171.1 9
[A] motor vehicle need not be the instrument of the injury to satisfy the causal connection requirement. Injuries which do not arise from the negligent use of a motor vehicle may be covered by s. 79(1) 25 Major, J. found that the injuries originated from, flowed from, or were causally connected with its ownership, use and operation 26. Thus, the court found that the plaintiff was entitled to the no-fault benefits to compensate him for the injuries suffered as a result of the accident. It is important to note although he interpreted s. 79(1) broadly, and in a manner favourable to Mr. Amos, Major, J. did recognize the necessity of a causal connection between Mr. Amos injuries and the ownership, use or operation of his vehicle. His lordship indicated that a true random shooting, not related to the use or operation of a vehicle would not be covered under s. 79(1), but where a nexus or connection between the injuries and the vehicle exist, the injured plaintiff, such as Mr. Amos, was entitled to coverage. An important factor was that the ownership, use or operation of the vehicle in question, related to Mr. Amos vehicle and his ownership, use or operation thereof. The issue of causation therefore related to an injury sustained by Mr. Amos while he was the owner, user, or operator, of his own vehicle. While the Amos decision has been widely applied in other Canadian cases involving first party no-fault benefits, until the Supreme Court of Canada rendered its decisions in Vytlingam v. Citadel General Assurance Co. 27 ( Vytlingam ) and Herbison v. Lumbermens Mutual Casualty Co. 28 ( Herbison ) on Friday, October 19, 2007, it appears as though the decision in Amos might be applied to circumstances involving third party liability coverage and underinsured motorist protection coverage, broadening such coverage significantly. In Vytlingam, the plaintiff was driving an automobile in North Carolina that was struck by a boulder, which went through the windshield and/or roof of his vehicle and injured him 25 26 27 28 Amos, supra note 16 at page 419. Amos, supra note 16 at page 420. Vytlingam v. Citadel General Assurance Co., 2007 S.C.C. 46. Herbison v. Lumbermens Mutual Casualty Co. 2007 S.C.C. 47. DM_VAN/900298-00006/6755171.1 10
catastrophically. The defendant deliberately threw the boulder which struck the plaintiff s vehicle. The defendant s vehicle transported the boulder to the bridge and was used as he fled the scene. At the trial level, relying on provisions for benefits from inadequately insured motorists, the plaintiff argued that he was entitled to benefits because the injuries arose directly or indirectly from the use or operation of an automobile used by the defendant. Backhouse, J. applied the two part Amos test and found that the purpose test was met because the vehicle transporting the boulder was central to the escape, required to transport them to the scene and necessary to transport the boulder 29. The court found that the purpose test was satisfied because transporting goods is an ordinary and common use of a motor vehicle. Thus, the defendants act of transporting the boulder in his vehicle was found to be within this meaning. The court found that causation was met because the use or operation of the vehicle was not merely incidental or fortuitous 30. Quoting from Amos that the motor vehicle need not be the instrument of the injury to satisfy the causal connection, Blackhouse, J. concluded: Its use was central to the defendants entire plan. It was necessary for their transportation to the scene, essential to carry the boulders, and the means for their escape. 31 A split occurred at the Court of Appeal on the issue of the Amos test and use or operation of the vehicle directly or indirectly. The majority of the court agreed with the lower court that the injuries to Michael Vytlingam arose either directly or indirectly from the use or operation of the defendant s vehicle. The dissenting judge, Juriansz, J.A. also applied the Amos test but came to different conclusions. He disagree with the trial judge s finding that the purpose test was met because, in his view, this 29 30 31 Vytlingam (Litigation Guardian of) v. Farmer, 2004, 23 C.C.L.I. (4 th ) 267, at para 23. Vytlingam, supra, note 29 at 26. Vytlingam, supra, note 29 at 26. DM_VAN/900298-00006/6755171.1 11
characterization applied only to the first part of the defendants course of activity, taking the boulders to the overpass. However, according to Juriansz, J.A., when the defendant dropped the boulder from which the plaintiff s injuries resulted, he was no longer using the vehicle to transport anything and accordingly the plaintiff s injuries could not be said to result from the ordinary and wide known activities to which vehicles are applied. With regard to causation, Juriansz, J.A. noted that Major, J. in Amos observed that a nexus or causal link was necessary between the cause of the injury and the ownership, use or operation of the vehicle. His lordship noted that Major, J. was unequivocal that a truly random shooting would not have been covered, but rather that an additional link was required to causally connect the bullet to the automobile s use. He criticized the trial judge s use of the but for test due to its potential to identify a relationship that may be incidental or fortuitous. Juriansz, J.A. concluded that the chain of causation was broken and that the act causing the injuries, the dropping of the boulder from the overpass, was unconnected to the use or operation of the vehicle. On October 19, 2007, Binnie, J., writing for the Supreme Court of Canada, allowed the appeal. The court noted that the question was whether the tort that caused the plaintiff s injuries was sufficiently connected to the use and operation of the defendant s vehicle, for it to be considered a claim based on a tort committed by a motorist. 32 Binnie, J. noted that the applicable Ontario coverage requires there to be liability on the part of the tort-feasor, as a motorist, who is inadequately insured. The primary issue therefore was whether the defendant, who dropped the boulder on the plaintiff s vehicle, was a motorist when he did so. 33 Binnie, J. noted that Amos was concerned with no-fault statutory benefits where the focus was necessarily on the use and operation of the claimant s vehicle. In contrast, in Vytlingam the focus was on the use of the tort-feasor s vehicle with the question being: 32 33 Vytlingam, supra, note 27 para 4. Vytlingam, supra, note 27 para 5. DM_VAN/900298-00006/6755171.1 12
1. Whether the Vytlingam s claim is in respect of an inadequately insured tort-feasor whose fault occurred in the course of using a motor vehicle as a motor vehicle; and 2. Whether the chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or but for is unbroken. 34 Binnie, J. noted that in Vytlingam there was no doubt that the claimant was entitled to the nofault benefits accompanying his policy. However, he adopted Juriansz, J.A. s reasoning in dissent, concluding that, for underinsured motorist coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist, in his or her capacity as a motorist, to the injuries in respect of which the claim is made. 35 The court concluded that the liability in the present case came from dropping rocks, and that it was irrelevant that the vehicle had been previously used to move the rocks to the site where the wrongful act occurred. Binnie, J. agreed with Juriansz, J.A. that the rock throwing was an independent act which broke the chain of causation. The Vytlingam decision is also important because it specifically confirms that Amos remains good law in relation to the interpretation of first party, no-fault benefit policies. 36 Interestingly, Vytlingam also supports the proposition that Chan v. ICBC [1996] 4 WWR 734 (BCCA) was wrongly decided, even though leave to appeal to the Supreme Court of Canada in that case was refused. In Chan, the plaintiff was injured while a passenger in her boyfriend s vehicle. An unidentified motorist, in an approaching vehicle, threw a brick at the plaintiff s vehicle, striking and injuring her. In awarding the plaintiff unidentified vehicle indemnification insurance benefits the BCCA agreed with the trial judge s conclusion that the throwing of the brick could not be isolated from the assailants driving the vehicle along the highway. In 34 35 36 Vytlingam, supra, note 27 para 12. Vytlingam, supra, note 27 para 25. Vytlingam, supra, note 27 para 15. DM_VAN/900298-00006/6755171.1 13
Vytlingam however, Binnie, J. disagrees, pointing out that if the BCCA had focused its analysis of the tort that caused the injury, and he opined that it should have, the fact that the brick was thrown from a car does not make it a motoring activity, rather it was an intervening act. According to Binnie, J. neither in Chan nor in Vytlingam was the tort-feasor at fault as a motorist, and accordingly neither applicable insurance the policy was required to respond. 37 On the same day that the S.C.C. rendered its reasons in Vytlingam, it also handed down reasons for judgment in Herbison v. Lumbermen Mutual Casualty Co. 38 ( Herbison ). In this case the plaintiff was claiming against the defendant s third party liability policy. In Herbison, the plaintiff, a member of a deer hunting party, was shot in the leg by the defendant Wolfe, who mistook him for a deer. Mr. Wolfe, operating a 4 wheel drive truck in the dark, was using the truck to get to the hunting stand when he stopped the vehicle to shoot at what he mistakenly thought was a deer. Mr. Wolfe argued that due to poor physical condition, poor heart and the inability to walk to the shooting stand, he relied on his truck. He also argued that the illumination from the headlights allowed him to see the shadow that he thought was a deer. The plaintiff successfully brought an action against Mr. Wolfe and sought through Mr. Wolfe s insurer, recovery for judgment pursuant to provisions for indemnity for loss or damages arising from the ownership or, directly or indirectly, from the use or operation of his motor vehicle. At the trial level, Manton, J. found the purpose test failed because the accident resulted from the negligent handling of a hunting rifle something totally unrelated to this use of the truck 39. Despite arguments that it fell within the ordinary purpose of the vehicle, Manton, J. found at the time the shot was fired resulting in the accident, the vehicle was not being put to ordinary use. On the issue of causation, the trial judge found that the negligent shooting by Wolfe constituted an intervening act that was merely incidental to the use and operation of the vehicle. In 37 38 39 Vytlingam, supra, note 27 para 31. Herbison v. Lumbermens Mutual Casualty Co., 2007 SCC 247. Herbison, 2003 Carswell Ont. 2874 [2003] O.J. No. 3024, 2 CCLI (4 th ) 44 Ont. S.C.J. DM_VAN/900298-00006/6755171.1 14
dismissing the arguments of a causal link, the trial judge concluded that [a]lthough the causation requirement of the Act was broadened by the inclusion of the word indirect as was said in Hanlon The test in Amos is broad, but it is not without limits 40. The trial judge concluded that the use and operation of the vehicle did not contribute to the injuries sustained by the victim. In the Ontario Court of Appeal all of the judges offered their reasons but split in favour of finding that the accident arose from the ordinary use or operation of the vehicle. Cronk, J.A. would have affirmed the trial decision, finding that the trial judge did not err in the application of the Amos to dismiss the claim. Cronk, J.A. found that Mr. Wolfe s use or operation of his pickup truck was not connected to his negligent use of his rifle or contributed to Mr. Herbison s injuries. Cronk, J.A. found that the use of the truck to transport the Wolfes to their hunting station was interrupted, and suspended by a series of separate intervening and deliberate acts and operation of his truck was merely incidental or ancillary to his unrelated negligent discharge of is weapon 41. In contrast, Borins, J.A. and Feldman, J.A. found that the trial judge erred in the application of the Amos test. The judges found that the purpose test was met on the basis that it was used: to gain access by a disabled person to difficult terrain and to transport that person, who was a deer hunter, and his hunting equipment to his hunting stand and the use of the truck s headlights to illuminate the darkness are well-known uses of pickup trucks, and its operation was an integral part of the venture in which the person was engaged. 42 The judges further found that causation was not an element of the provision under examination, and the requirement was that the damages arise directly or indirectly out of, or originate from, 40 41 42 Herbison, supra, note 39 at para 22. Herbison, 255 DLR (4 th ) 75 Ont. C.A. para 78. Herbison, supra, note 41 at para 113. DM_VAN/900298-00006/6755171.1 15
the use or operation of a vehicle 43. The judges concluded that the causation test was met because the evidence established some nexus or causal relationship between Mr. Herbison s damages and Mr. Wolfe s use or operation of his truck that was more than merely incidental or fortuitous. 44 Binnie, J. writing for all of his colleagues on the Supreme Court of Canada, allowed the appeal, agreeing with the dissenting Ontario Court of Appeal opinion of Cronk, J.A. His lordship observed that the questions for the court to decide were firstly whether Mr. Herbison s claim related to a tort committed while Mr. Wolfe was using his truck, as a motor vehicle rather than for some other purposes, and secondly whether there was an unbroken chain of causation linking Mr. Herbison s injuries to the use and operation of the Wolfe vehicle which is more than simply fortuitous. 45 Binnie, J. accepted that the first question could easily be answered in the affirmative as Mr. Wolfe was using his truck for transportation, a usual and ordinary use of a vehicle. In relation to the second question, causation, Binnie, J. concluded that the claimant Mr. Herbison faced an insurmountable obstacle. Binnie, J. pointed out that Mr. Herbison s complaint regarding Mr. Wolfe s conduct, related to the shooting resulting in him being hit by a bullet, not Mr. Wolfe s use and operation of his vehicle. 46 Binnie, J. concluded that the real source of Mr. Wolfe s liability, negligently discharging a firearm, was a tort independent of the use and operation of the Wolfe vehicle. 47 As he did in Vytlingam, Binnie, J. noted that Amos involved the interpretation of no fault benefits and although the policy language in Amos and Herbison was similar, the fact that the latter was 43 44 45 46 47 Herbison, supra, note 41 at para 114. Herbison, supra, note 41 at para 116. Herbison, supra, note 38 at para 12. Herbison, supra, note 38 at para 12. Herbison, supra, note 38 at para 14. DM_VAN/900298-00006/6755171.1 16
not concerned with no fault benefits, but rather indemnity insurance, meant that some causal link must exist, and must constitute an unbroken chain, something not established in the Herbison case. As a result, Mr. Herbison s claim for insurance proceeds against Mr. Wolfe s third party liability policy, could not succeed. Conclusion In relation to tort actions, the but for test has been firmly re-established as the primary test for causation. The material contribution test is to be applied in only a narrow range of exceptional circumstances. Amos s relaxed causation test, continues to apply to claims for no-fault benefits under first party motor vehicle policies. In relation to claims that involve third party, unidentified motorist, or under insured motorist coverages, where it is the tort-feasor s relationship to his or her vehicle which will determine coverage, a causal connection must exist between the alleged tortious conduct and the injuries sustained by the plaintiff which causal connection must be an unbroken chain. An independent intervening act which breaks this chain of causation will result in coverage being denied. DM_VAN/900298-00006/6755171.1 17