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Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405

 

Briton Amos                                                                                       Appellant

 

v.

 

Insurance Corporation of British Columbia                                     Respondent

 

Indexed as:  Amos v. Insurance Corp. of British Columbia

 

File No.:  24164.

 

1995:  May 25; 1995:  September 21.

 

Present:  La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

 

on appeal from the court of appeal for british columbia

 

Insurance law ‑‑ Interpretation ‑‑ Driver shot in attempted hijacking of van ‑‑ Regulation (s. 79(1)) providing coverage for "injury caused by an accident that arises out of the ownership, use or operation of a vehicle" ‑‑ Whether or not a "causal connection" test should be used in interpreting s. 79(1) of the Regulation ‑‑ If so, whether or not such a connection existed between the accident and the ownership ‑‑ Whether or not van merely situs of a shooting and not causally connected to injuries ‑‑ Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, s. 79(1).

 


Appellant was attacked by a gang while driving and was seriously injured when shot while distancing his van from the assailants.  He was insured by the respondent under a standard automobile insurance policy and applied for medical and other benefits under s. 79(1) of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act which provided for the payment of benefits "in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle".  The respondent denied liability, and the appellant commenced an action for a declaration that he was entitled to the benefits claimed.  The Supreme Court of British Columbia dismissed his action and the Court of Appeal upheld that judgment.  At issue here were:  (1) whether or not a "causal connection" test should be used in interpreting s. 79(1) of the Regulation; (2) if so, whether such a connection existed between the accident and the ownership, use or operation of the appellant's van within the meaning of this section; and (3), whether the appellant's van was merely the situs of a shooting and not causally connected to his injuries.

 

Held:  The appeal should be allowed.

 

The inclusion of the words "ownership" and "use" in s. 79(1) indicate a legislative intent to establish broader coverage than for incidents arising from the "operation" of a vehicle.  The no‑fault character of the benefits in question does not change the interpretation of the section.  The injury must still arise out of the ownership, use or operation.  Traditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer.  A narrow, technical interpretation is not dictated. 

 


A two‑part test, involving purpose and causal link, should be applied:  did the accident result from the ordinary and well‑known activities to which automobiles are put, and if so, was the relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, causal or was it merely incidental or fortuitous.

 

The first part of the test was met.  The appellant was driving his van down a street.

 

A direct or proximate causal connection is not required between the injuries suffered and the ownership, use or operation of a vehicle.  The phrase "arising out of" is broader than "caused by", and must be interpreted in a more liberal manner.  Proof by the injured plaintiff of the intent of the assailant, while helpful in establishing the necessary nexus or causal link, should not be mandatory.  The courts can draw reasonable inferences regarding causation from the facts.  Further, 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).

 

While the appellant's van may have been singled out by his assailants on a random basis, the shooting which caused his injuries was not random.  The appellant's vehicle was not merely the situs of the shooting.  The shooting was the direct result of the assailants' failed attempt to gain entry to the appellant's van and arose out of the appellant's ownership, use and operation of his vehicle.  Whether or not the shooting was accidental was unimportant.  No intervening act, independent of the ownership, use or operation of the vehicle, broke the chain of causation. 


Cases Cited

 

Considered:  Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936; Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd., [1960] S.C.R. 80; Kangas v. Aetna Casualty & Surety Co., 235 N.W.2d 42 (1975); Dickinson v. Motor Vehicle Insurance Trust, [1987] 61 A.L.J.R. 553; referred to:  Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; R. v. Holmes, [1988] 1 S.C.R. 914; Woelk v. Halvorson, [1980] 2 S.C.R. 430; Indemnity Insurance Co. v. Excel Cleaning Service, [1954] S.C.R. 169; Johnstone v. Lee and Insurance Corp. of British Columbia (1979), 17 B.C.L.R. 324; Yurkowski v. Federated Mutual Implement and Hardware Insurance Co., [1975] 4 W.W.R. 689; Fraser Valley Taxi Cabs Ltd. v. Insurance Corp. of British Columbia (1993), 75 B.C.L.R. (2d) 94; Thornton v. Allstate Insurance Co., 391 N.W.2d 320 (1986); Fortune Insurance Co. v. Exilus, 608 So.2d 139 (1992), appeal dismissed 613 So.2d 3 (1992); Novak v. Government Employees Insurance Co., 424 So.2d 178 (1983), aff'd 453 So.2d 1116 (1984); McIndoe v. Insurance Corp. of British Columbia (1990), 45 C.C.L.I. 68.

 

Statutes and Regulations Cited

 

Regulation No. 1 Pursuant to the Automobile Insurance Act, B.C. Reg. 428/73, s. 7.01.

 

Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg.       447/83, s. 79(1) [as am. by B.C. Reg. 335/84, Schedule, item 19, and B.C. Reg. 379/85, Schedule, item 31].

 

Authors Cited

 

Brown, Craig and Julio Menezes.  Insurance Law in Canada, 2nd ed. Scarborough, Ont.:  Carswell, 1991.

 

Sullivan, Ruth.  Driedger on the Construction of Statutes, 3rd ed.  Toronto:  Butterworths, 1994.


 

APPEAL from a judgment of the British Columbia Court of Appeal (1994), 89 B.C.L.R. (2d) 187, 113 D.L.R. (4th) 269, 67 W.A.C. 305, 21 C.C.L.I. (2d) 242, [1994] 6 W.W.R. 93, [1994] I.L.R. 1-3078, 3 M.V.R. (3d) 87, dismissing an appeal from a judgment of Hardinge J. (1993), 13 C.C.L.I. (2d) 274, [1993] I.L.R. 1‑2942, 43 M.V.R. (2d) 310.  Appeal allowed.

 

Thomas R. Berger, Q.C., for the appellant.

 

Avon M. Mersey and Richard J. Berrow, for the respondent.

 

The judgment of the Court was delivered by

 

1                 Major J. -- This appeal involves the interpretation of s. 79(1) (in Part VII) of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, as amended.

 

2                 Section 79(1) entitles insured motorists to no-fault death and disability benefits under the administration of the respondent, the Insurance Corporation of British Columbia ("ICBC").  The appellant seeks first-party disability benefits from ICBC under Part VII of the Revised Regulation.  The British Columbia trial and appellate courts ruled that the appellant is not entitled to these statutory benefits because his injuries did not arise out of the ownership, use or operation of his vehicle, as provided for in s. 79(1).  I respectfully disagree.

 

I.  Facts


3                 On August 21, 1991, the appellant, a Canadian citizen who resided in Vancouver, British Columbia, was attacked by a gang of six people while driving his van in East Palo Alto, California.

 

4                 Prior to the attack, as the appellant pulled away from the intersection where he was stopped, he noticed three men crossing from the median into the path of his van.  He slowed down and steered to the right in an attempt to avoid them.  As he did so, a fourth man jumped from behind a bush at the right side of the street and moved in front of the van.  The appellant braked to avoid hitting him but did not bring the van to a stop.  Two more men then emerged from the right side of the street and moved toward the passenger side of the van.  With his van surrounded by six men, the appellant locked the doors on both sides of the van and kept it moving slowly ahead.  The assailants commenced pounding on the door windows on both sides of the van.  The glass on the driver's door shattered but was held in place by its frame.  Another man then walked out in front of the van and pointed a gun at the appellant.  As the appellant tried to duck from the line of fire, that person returned to the driver's side of the van, where he used the gun to clear away the shattered glass in the window.  As the man with the gun was clearing the glass from the window, the appellant felt a sudden change come over his body.  He no longer had any control of his legs and he was having difficulty breathing.  He saw blood on his hand and realized he had been wounded although he had not heard shots being fired.

 


5                 The appellant was able to keep the van moving by using both hands to push down on his right leg and depress the accelerator.  Somehow he was able to manipulate himself to control the direction of the van.  When he had distanced himself from the assailants by several blocks he brought the van to a stop by using the van's emergency hand brake.  He obtained assistance and was transported to a hospital.

 

6                 In the course of the attack, there were at least two shots fired.  One bullet was found lodged in the glove compartment of the van.  The second bullet, fired through the broken window of the driver's door, struck the appellant's spinal cord at the T8-T9 level.  The assailants escaped.

 

7                 The appellant, while escaping, sustained serious, disabling and permanent injuries, both physical and mental.  His capacity to earn his livelihood has been substantially destroyed, and he will be permanently dependent upon others for his subsistence, care and maintenance.

 

8                 The appellant was insured by the respondent under a standard automobile insurance policy.  He applied to the respondent for medical and other benefits under Part VII of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act.  The respondent denied liability, and the appellant commenced an action for a declaration that he was entitled to the benefits claimed.  On February 5, 1993, the Supreme Court of British Columbia dismissed the appellant's action.  On March 28, 1994, the Court of Appeal for British Columbia dismissed the appellant's appeal.

 

II.  Statutory Provision

 

9                 Part VII of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, as am. by B.C. Reg. 335/84, Schedule, item 19, and B.C. Reg. 379/85, Schedule, item 31:


79. (1) Subject to subsection (2) and sections 80 to 88, 90, 92, 100, 101 and 104, the corporation shall pay benefits to an insured in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle and that occurs in Canada or the United States of America or on a vessel travelling between Canada and the United States of America. . . .

 

III.   Judicial History

 

A.                British Columbia Supreme Court (1993), 13 C.C.L.I. (2d) 274

 

10               The trial judge stated, at p. 278, that the issue was whether the appellant's accident "(arose) out of the ownership, use or operation of a vehicle" (the respondent had conceded that the injuries were caused by an "accident").  He noted that the phrase "arising out of the ownership, use or operation of a vehicle" had been judicially considered.  The two leading Canadian cases are Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936, and Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd., [1960] S.C.R. 80.  The first established the "purpose test"; the second, the "chain of causation" test.  The court concluded that the purpose and causal connection tests were complementary, meaning that both tests had to be satisfied before a plaintiff could claim Part VII benefits.  The court stated at p. 281:

 

If an accident resulting in injuries or damage does not result from some "ordinary and well known activit(y) to which automobiles are put" that will be the end of the matter.  However, if a plaintiff is able to satisfy the purpose test, he or she will also have to establish that the chain of causation between the ownership, use or operation of the vehicle and the injuries or damage sustained was not broken by some intervening act.

 


The trial judge held that mere presence in a vehicle when injuries are sustained is not, of itself, sufficient to found a causal link between the injuries and the ownership, use or operation of a vehicle and concluded at pp. 283-84:

 

In the present case I am unable to find that the injuries sustained by [the appellant] resulted in any way from an accident, "which the common judgment in ordinary language would attribute to the utilization of an automobile."  He was the innocent victim of an act of wanton criminal violence.  There is, however, no evidence that his assailants were attempting to hijack his van or that the van itself in any way contributed to or aggravated his injuries.

 

                                                                   . . .

 

. . . the injuries were caused not by anything [the appellant] did as owner of his van but by his attackers.  The van was merely the situs of the attack.

 

B.                British Columbia Court of Appeal (1994), 89 B.C.L.R. (2d) 187

 

11               The Court of Appeal concluded that the trial judge was correct in his interpretation of s. 79(1) and the application of s. 79(1) to the facts before him.  It was emphasized that the words "arising out of" required a causal or consequential relationship between the accident and the ownership, use or operation of the vehicle, although a direct or proximate causal relationship was not required.  The question then became one of determining the extent of the causal link required by the use of the words "arising out of".  The Court of Appeal dismissed the appellant's appeal as follows, at pp. 191-92:

 

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. . . . [T]he accident must be one "which the common judgment in ordinary language would attribute to the utilization of an automobile".

 

                                                                   . . .


I am not persuaded that [the appellant's] ownership of the van had anything to do with the injuries he suffered in this apparently random attack upon him.  Rather, as stated by the [trial] judge, [the appellant's] vehicle was simply the situs of the attack.

 

In the result, I agree . . . that s. 79(1) does not provide coverage to [the appellant] in these circumstances.  [Emphasis in original.]

 

IV.              Points in Issue

 

1.                Did the Court of Appeal err in adopting a "causal connection" test in interpreting s. 79(1) of the Revised Regulation?

 

2.                In any event, did a causal connection exist between the accident and the ownership, use or operation of the appellant's van within the meaning of s. 79(1)?

 

3.                Did the Court of Appeal err in holding that the appellant's van was merely the situs of a shooting and not causally connected to his injuries?

 

V.   Analysis

 

A.                Interpretation of s. 79(1) of the Regulation

 

12               This appeal as previously noted turns on the interpretation of s. 79(1) of the Regulation.  The appellant submitted that the nature of the no-fault benefits scheme created by the legislation means that s. 79(1) must be construed in a broad and liberal manner and that its interpretation should not be affected by previous jurisprudence dealing with private policies of insurance.


13               To understand the scope of s. 79(1), it is useful to consider its legislative evolution.  Pigeon J. in Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, stated at p. 667:

 

. . . prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to [a statute].

 

14               Originally, s. 7.01 in Part VII of Regulation No. 1 Pursuant to the Automobile Insurance Act, B.C. Reg. 428/73, provided benefits for death and disability where the injuries were caused by an accident "arising from the use or operation of a motor-vehicle".  Subsequently, B.C. Reg. 447/83, s. 79(a) stated that benefits would be paid in respect of death or injury caused by an accident that "arises from the operation of a vehicle".  The final version of s. 79 (amended by B.C. Reg. 379/85) broadened the wording, providing benefits in respect of death or injury caused by an accident that "arises out of the ownership, use or operation of a vehicle".  The most recent amendment shows a legislative intent to establish broader coverage, by the addition of "ownership" and "use", which mirrors the wording found in many private policies of insurance.

 


15               Driedger on the Construction of Statutes (3rd ed. 1994), at p. 301, states: "[w]hen used in legislation, common law terms and concepts are presumed to retain their common law meaning, subject to any definition supplied by the legislature" (see R. v. Holmes, [1988] 1 S.C.R. 914, and Woelk v. Halvorson, [1980] 2 S.C.R. 430).  There is no indication that the legislature has provided an alternative definition for the phrase in question, or has intended to modify the judicial interpretation given to that phrase in the case law.  Consequently, prior jurisprudence concerning whether an injury arises out of the ownership, use or operation of a vehicle is useful in interpreting the provisions of s. 79(1).  This approach is supported by Brown and Menezes, Insurance Law in Canada (2nd ed. 1991), at p. 158:

 

Automobile insurance has evolved to a point where statutory and contractual insurance doctrines converge in both private/competitive and public/monopoly systems.  While legislators do intend to get the cost and other efficiencies when a monopoly is introduced, it does not follow that they also intend to re-invent the language.  Where identical or similar concepts to private insurance are made a part of public plans it ought to be assumed that legislators intend identical or similar results.

 

16               The no-fault character of the benefits in question does not change the interpretation of s. 79(1).  No-fault means that the respondent's liability to pay benefits occurs when injury arises out of the ownership, use or operation of a vehicle, regardless of the presence or absence of fault.  The injury must still arise out of the ownership, use or operation.  However, this does not mean that a narrow, technical interpretation is dictated.  Traditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer (Brown and Menezes, at p. 131).  In Indemnity Insurance Co. v. Excel Cleaning Service, [1954] S.C.R. 169, it was held that the construction given to a policy of insurance must not nullify the purpose for which the insurance was sold.

 

17               In the same way, while s. 79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage.  The two-part test to be applied to interpreting this section is:

 


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?

 

This two-part test summarizes the case law interpreting the phrase "arising out of the ownership, use or operation of a vehicle", and encompasses both the "purpose" and "causation" tests posited in the jurisprudence.  

 

B.                The Jurisprudence

 

18               The "purpose" test, as it is now known, can be traced back to Stevenson v. Reliance Petroleum Ltd., supra.  That case involved the negligence of the driver of the insured, a company engaged in the distribution of oil and gas,  which led to gasoline overflowing, igniting and destroying the premises.  A majority of this Court held that the accident arose out of the use or operation of a motor vehicle, per Rand J. at p. 941:

 

An analogous "use", as distinguished from "operation", is exemplified in the case of a bus.  The undertaking in such a case includes the entrance and exit to and from the bus of passengers.  If the steps are defective and a passenger is injured, could it be said that injury did not arise out of the "use"?  The expression "use or operation" would or should, in my opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service.


The appellant here was driving his van down a street; the accident clearly resulted "from the ordinary and well-known activities to which automobiles are put".  The first part of the two-part test is satisfied.

 

19               In Canada, the "causation test" had its genesis in Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd., supra. In that case, the insured taxi company held a contract to transport mentally handicapped children to and from school.  The drivers were to take the children directly to their homes from school, and not let any child out on the side of the street opposite his or her home.  One of the drivers, in breach of that arrangement, stopped on the opposite side of the street.  The child, while crossing the street alone, was hit by a truck and severely injured.  The issue was whether the insured's liability arose out of the use or operation of a motor vehicle.  The general liability insurer disputed liability, claiming the accident arose out of the use or operation of the taxi, and thus was covered by the automobile insurance.  It was held that the insured's liability arose from a breach of duty that occurred after the vehicle was stopped, when the child crossed the street unescorted.  This duty was a contractual duty, and had nothing to do with the use or operation of the insured's vehicle, per  Ritchie J. at pp. 84-85:

 

. . . the words "claims arising out of . . . the ownership, use or operation . . . of any motor vehicle" as used in this exclusion can only be construed as referring to claims based upon circumstances in which it is possible to trace a continuous chain of causation unbroken by the interposition of a new act of negligence and stretching between the negligent use and operation of a motor vehicle on the one hand and the injuries sustained by the claimant on the other.  In the present case the motor vehicle was stationary at the time of the accident and the chain of causation originating with its use was severed by the intervening negligence of the taxi driver whose failure to escort the boy across the street was the factor giving rise to the [insured]'s liability.

 


20               Subsequent cases which illustrate the application of the "causation" principle include Johnstone v. Lee and Insurance Corp. of British Columbia (1979), 17 B.C.L.R. 324 (S.C.), Yurkowski v. Federated Mutual Implement and Hardware Insurance Co., [1975] 4 W.W.R. 689 (B.C.S.C.), and Fraser Valley Taxi Cabs Ltd. v. Insurance Corp. of British Columbia (1993), 75 B.C.L.R. (2d) 94 (C.A.). 

 

2121           The question is whether the requisite nexus or causal link exists between the shooting and the appellant's ownership, use or operation of the van.  With respect to causation, it is clear that a direct or proximate causal connection is not required between the injuries suffered and the ownership, use or operation of a vehicle.  The phrase "arising out of" is broader than "caused by", and must be interpreted in a more liberal manner.  A formulation of the causation principle is found in Kangas v. Aetna Casualty & Surety Co., 235 N.W.2d 42 (1975), where the Michigan Court of Appeals stated at p. 50:

 

. . . we conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal* connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for.  The injury must be forseeably identifiable with the normal use, maintenance and ownership of the vehicle.

 


That court recognized that the words "arising out of" have been viewed as words of much broader significance than "caused by", and have been said to mean "originating from", "having its origin in", "growing out of" or "flowing from", or, in short, "incident to" or "having connection with" the use of the automobile.  The altercation in Kangas from which the injuries flowed occurred after the passenger in the insured automobile alighted from the stopped vehicle, and assaulted a pedestrian.  It was similar to the fact patterns in cases such as Johnstone v. Lee and Insurance Corp. of British Columbia, supra.  The Kangas causation test has been cited frequently in American decisions, and the case law shows a general trend towards a fairly narrow application of the causation principle (e.g., Thornton v. Allstate Insurance Co., 391 N.W.2d 320 (Mich. 1986), Fortune Insurance Co. v. Exilus, 608 So.2d 139 (Fla. App. 1992), appeal dismissed 613 So.2d 3 (Fla. App. 1992)).  While a majority of the Supreme Court of Florida adopted a more generous causation test in Novak v. Government Employees Insurance Co., 424 So.2d 178 (Fla. App. 1983), aff'd 453 So.2d 1116 (Fla. 1984), the injured plaintiff is still required to prove the intent of his or her assailant (i.e., the intent to steal or hijack the vehicle) before a causal link will be found.

 

22               Such proof is helpful in establishing the necessary nexus or causal link, but it should not be mandatory for an injured plaintiff to establish an assailant's intent.  It is always open to the courts to draw reasonable inferences regarding causation from the facts.

 

23               Dickinson v. Motor Vehicle Insurance Trust, [1987] 61 A.L.J.R. 553, a decision of the High Court of Australia, describes a causal connection test which does not require a direct or proximate relationship between the use of the vehicle and the injuries suffered.  The court stated at p. 555:

 

Whether or not the appellant's injuries were actually caused by the use of the motor car, it is sufficient to say that they arose out of such use.  The test posited by the words "arising out of" is wider than that posited by the words "caused by" and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle. . . .

 


That court reasoned that under the "wide formula", as expressed by the wording "arising out of", it is the injury which must be caused by or arise out of the use of the motor vehicle.  Negligence or fault in the use or operation of a motor vehicle does not need to be the cause of the injury.  The liability for the injury may arise from a tortious act other than the negligent use of a motor vehicle.  This is an important distinction.

 

24               This appeal does not present the typical motor vehicle accident.  A bullet, rather than a motor vehicle, was the cause of the injury.  However, 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               Was the attack in this case merely a random shooting, or did it arise out of the ownership, use or operation of the appellant's vehicle?  While the appellant's van may have been singled out by his assailants on a random basis, the shooting which caused the appellant's injuries was not random.  The appellant's vehicle was not merely the situs of the shooting.  The shooting appears to have been the direct result of the assailants' failed attempt to gain entry to the appellant's van.  It is not important whether the shooting was accidental or deliberate while entry to the vehicle was being attempted.  It is important that the shooting was not random but a shooting that arose out of the appellant's ownership, use and operation of his vehicle.  (For an analogous example of the application of the causal connection test, see McIndoe v. Insurance Corp. of British Columbia (1990), 45 C.C.L.I. 68 (B.C.S.C.).)

 


26               If the appellant had not been shot, but had lost control of his car while trying to get away from his assailants, the injuries suffered as a result of a subsequent car crash would surely be covered by the respondent.  Similarly, if the appellant had suffered injuries as a result of being intentionally hit by those same assailants using a car instead of a gun, the respondent would not deny coverage.  I do not think the instant case can be distinguished from the foregoing hypothetical examples.  Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.

 

27               The appellant's injuries arose out of the ownership, use and operation of his van.  They originated from, flowed from, or were causally connected with its ownership, use and operation.  Neither can it be said that there was an intervening act, independent of the ownership, use or operation of the vehicle, which broke the chain of causation.  The appellant is therefore entitled to Part VII no-fault benefits to compensate him for the injuries suffered as a result of the accident.

 

28               Invariably, each case must be decided on its own facts, applying the two-part test outlined above.  It is not possible to predict every circumstance where an injury can be said to arise out of the ownership, use or operation of a vehicle.  A true random shooting not related to the use or operation of a vehicle under the present wording of s. 79(1) is not covered but where a nexus or connection between the injuries and the vehicle exists, the injured plaintiff is  entitled to coverage.  The words in s. 79(1) chosen by the legislature are broad and should be interpreted to give meaning to the legislative intention that extends coverage where some connection is found between ownership, use or operation of a vehicle and the injuries sustained as a result of an accident.

 


29               The appeal is allowed with costs throughout.  Counsel indicated that the parties did not require a specific declaration to implement the appeal if the appeal were allowed.  In the event that a specific declaration is required, counsel are at liberty to apply to this Court for such direction.

 

Appeal allowed with costs.

 

Solicitor for the appellant:  Robert A. Doran, Vancouver.

 

Solicitors for the respondent:  Russell & DuMoulin, Vancouver.



* See Erratum [2007] 2 S.C.R. iv

 

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