Michael Downer pulled into a gas station but needed to count his money before filling up. While the engine was still running, he was assaulted by a group of young men, who presumably intended to steal his car. Downer was injured but managed to drive away, reaching a nearby police station.

Downer claimed – and initially received – $73,000 in accident benefits as a result of depression, anxiety, post-traumatic stress, chronic low back pain, migraine and other ailments resulting from the incident. The insurer later informed Downer that he would receive no further payments and that he would be required to repay the moneys already paid because his injuries did not result from an ‘accident’ as defined in the Statutory Accidents Benefits Schedule (SABS).

The SABS defines an ‘accident’ as ‘an incident in which use or operation of an automobile directly causes impairment’. Murray J concluded that Downer’s injuries resulted from ‘ordinary and well-known activities to which automobiles are put’ (pulling into a gas station); his injuries were directly caused by ‘ownership, use or operation’ of his vehicle; and the intervening act (the assault) did not diminish the fact that the injuries resulted from ‘use’ of the car (trying to get away from his attackers). Downer was therefore involved in an ‘accident’ for which he could receive benefits under the SABS: Downer v Personal Insurance Co, 2011 ONSC 4980 [Link available here].