Requirement for a motor vehicle accident
Simply coming within the definition of insured and establishing that none of the exceptions to coverage apply is not sufficient to establish entitlement to Part 7; amongst other requirements the claimant must also establish that:
- the accident occurred in Canada or the United States of America; and
- the accident arose out of the use or operation of a vehicle.
The above requirements, and the fact that the claimant is not required to prove who was at fault for the accident, are discussed below.
No requirement to prove fault
Note that the insured is not required to prove who was at fault for the accident because payment of Part 7 benefits is not dependent on who was at fault for the accident:
Part VII of the regulations deals with what are termed “Accident Benefits”… It is to be appreciated that what is here involved is true accident insurance. The payments, if made, are made quite regardless of fault, including negligence, provided the accident is one covered by the insuring regulation.
(Steinhauser v. Insurance Corporation of British Columbia, 1983 CanLII 422 at para. 11 (BCSC)).
Section 79 of the Insurance (Vehicle) Regulation sets out the circumstances in which Part 7 benefits are payable and requires an injury that is caused by:
…an accident that arises out of the 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.
(Insurance (Vehicle) Regulation, s. 78).
Therefore, if a person is an insured under Part 7, they can claim Part 7 benefits even though the accident occurred in another Canadian province, in the USA, or on a ferry (e.g. to Vancouver Island), so long as the accident arose out of the “use and operation of a vehicle”.
Section 104 of the Insurance (Vehicle) Regulation specifies rules that apply when calculating benefits in respect of accidents that occur in other jurisdictions.
Section 79 of the Insurance (Vehicle) Regulation also requires that the injury arise “out of the use or operation of a vehicle”:
The fact that the plaintiff is an insured in that he is a licensed driver or owns an automobile does not of itself entitle him to recover. The injuries must arise, “from the use or operation of a motor vehicle”.
(Tippet v. Doe, 1987 CanLII 2607 at para. 19 (BCSC)).
Clearly accidents not involving a vehicle at all will not arise out of the use or operation of a vehicle. Therefore, if two cyclists collided on the road without the involvement of any vehicles, they would not be entitled to Part 7 benefits.
Further, even if the accident involves a vehicle, there will be no Part 7 coverage unless the vehicle was being “used” or “operated” at the time. Therefore, if a cyclist, skateboarder, etc. collided with a parked car merely due to inattentiveness there would no Part 7 coverage because the vehicle was not in use or operation: Tippet v. Doe, 1987 CanLII 2607 (BCSC).
However, if the vehicle is in use or operation a person who collides with it will generally be entitled to Part 7 benefits regardless of what they were doing on the road. In Steinhauser v. Insurance Corporation of British Columbia, 1983 CanLII 422 (BCSC) the horse the plaintiff was riding was started and bolted and ran into a pick-up truck:
As the plaintiff, on her mount, proceeded towards the intersection of 96th Avenue with 168th Street the horse shied and moved sharply and quickly to its left across 96th Avenue. The plaintiff struggled with it to try to control it but the horse continued to move across the road and collided with a pick-up (camper) truck proceeding in the northerly lane west on 96th Avenue, i.e., in the opposite direction to that in which the plaintiff had been proceeding on her horse.
(Steinhauser v. Insurance Corporation of British Columbia, 1983 CanLII 422 (BCSC)).
The court held that since the accident involved a collision between the horse and a vehicle that was clearly in use and operation, the rider of the horse was entitled to Part 7 coverage:
The injuries in question here were “caused by an accident”. The accident was the collision between the motor vehicle and the horse on which the plaintiff was. It arose (not necessarily exclusively) from the use and operation of a motor vehicle. That is to say, dealing with the collision as an accident properly so called, there was a direct and actual causal connection between the use and operation of the motor vehicle and the collision which occurred.
The defendant must pay the "benefits" under Pt. VII of the regulations.
(Steinhauser v. Insurance Corporation of British Columbia, 1983 CanLII 422 at para. 23-24 (BCSC)).
Injuries from an assault that takes place after an accident do not arise out of the use or operation of a vehicle. In Johnstone v. Lee, 1979 CanLII 732 (BCSC) the plaintiff said the defendant was at fault for causing the accident, which lead to the defendant to assault the plaintiff. The court held that the injuries from the assault did not arise out of the use or operation of a motor vehicle:
Mr. Lee performed many deliberate and thoughtful acts before turning his attention to obtaining particulars of the accident from the driver of the other motor vehicle. Mr. Lee did not make any effort to assault the plaintiff until he was confronted with the plaintiff’s version of the accident — namely, that he had a witness that could say that Mr. Lee had pulled out in front of Johnstone. It is my conclusion that the blow or blows thrown by the defendant Lee at the plaintiff were a new and independent cause of the plaintiff’s injuries.
It is my conclusion that the injury resulted from an assault prompted by the plaintiff’s confrontation of the defendant and did not arise out of the ownership, use or operation of a motor vehicle.
(Johnstone v. Lee, 1979 CanLII 732 at para. 15-17 (BCSC)).
In Lim v. Insurance Corp. of British Columbia, 2001 BCCA 670 an accident victim drowned after exiting his vehicle following an accident on a shoreline. The British Columbia Court of Appeal held that the drowning and the accident were so closely connected that the drowning could be said to have arising out of the operation of a vehicle:
[T]he conclusion that Mr. Lim was in the car when it came to rest on the log and the obvious fact that he exited the vehicle before he drowned, leads, in my view, to the inference that Mr. Lim’s drowning was likely connected to the use of the vehicle. It is not necessary, as argued by the appellant, to determine “what happened”. It is only necessary to be able to conclude, on the balance of probabilities, that the drowning and the operation of the car that brought it to its unintended location next to the water are connected. In my view, those two events are clearly connected. Any suggestions of an intervening event, such as Mr. Lim deciding to take a “polar bear swim” or a walk along the slippery, rocky beach at high tide in the dark and cold, are pure speculation at best.
(Lim v. Insurance Corp. of British Columbia, 2001 BCCA 670 at para. 20).
The foregoing indicates that in order to be covered by Part 7 the claimant’s injuries must arise out of an accident involving the use or operation of a vehicle.
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