Can A Driver's Road Rage Be Found To Cause An Accident, Even If The Driver Wasn't Directly Involved?

• Law Firm: Gowling WLG
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Author: Ms Belinda Bain and Spencer Thompson
• Published date: 21 February 2023

In Moran v Fabrizi, 2023 ONCA 21, the Ontario Court of Appeal dismissed an appeal involving the assessment of whether a trial judge properly applied the "but for" causation test in finding that the road rage of a driver not directly involved in a motor vehicle collision was a cause of that collision.

Facts and procedural history

Tate Moran ("Moran") was injured in a motor vehicle accident as the passenger in a minivan driven by her grandmother, Elaine Ingleson ("Ingelson"). Ottavio Fabrizi ("Fabrizi") ran a red light and collided with the minivan. Moran's action was settled for $220,000.

In a third party action, Fabrizi sued Dennis G. K. Chu ("Chu") seeking contribution and indemnity for the settlement of the main action. While Chu's vehicle was not directly involved in the collision, Fabrizi alleged that Chu's threatening behavior impacted Fabrizi to such an extent that the behavior caused or contributed to the collision.

Chu had been driving slowly on a residential street and Fabrizi passed him. Chu became angry and caught up with Fabrizi attempting to stop him. Chu got out of his vehicle, took off his sweater, and began swearing, yelling, and hitting Fabrizi's vehicle. The trial judge found that, in an attempt to get away from Chu, Fabrizi ran a red light, colliding with Moran. The parties did not contest these factual findings on appeal. The trial judge held that Chu's "threats of physical violence amount to intentional tortious conduct" and that "the accident would not have occurred but for Chu's conduct."¹

In applying the "but for" test for causation the trial judge held that:

• Chu's threats of physical violence amounted to intentional tortious conduct;
• the accident would not have occurred but for Chu's conduct;
• Chu was 50-percent responsible for causing the injuries and
• Chu should indemnify Fabrizi for $110,000.

The appeal

The main issues before the Court of Appeal were (1) whether the trial judge erred in application of the test for causation in determining whether Chu "caused or contributed to" the accident in which Moran was injured; (2) whether a claim for contribution and indemnity can properly be made where one claim is in negligence and the other is for an intentional tort; and (3) the application of the "agony of the moment" doctrine in the determination of causation.

Decision

The appeal was dismissed with costs payable by the appellant (Chu) to the respondent (Fabrizi) in the agreed amount of $7,500 all-inclusive.

Analysis

The Court of...