Can a driver's road rage be found to cause an accident, even if the driver wasn't directly involved?

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 Appeal upheld the trial judge's ruling, holding:

1. the trial judge's self-instruction on and application of the "but for" causation test causation was correct;
2. 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 "agony of the moment" doctrine did not assist Chu, as Chu himself was responsible for creating the underlying emergency.^[2]

The Court upheld the trial judge's determinative finding on the "but for" test. The Court held that the trial judge had simply added the superfluous observation that, had he been unable to make a factual causation finding by applying the "but for" test, Chu was still liable because the "material contribution" test would have applied and would have been satisfied.

The Court clarified the requirements of claims for contribution and indemnity and explained that in order to trigger a "third party indemnity under s. 5 of the Negligence Act there need not be negligence on the part of both parties. One party's tort can be negligence and the other party's tort intentional. The fact that Chu's tort was intentional while Fabrizi's tort was negligence has no bearing on whether Chu must share Fabrizi's liability under s. 5 of the Negligence Act."^[3] [Emphasis added]

On appeal, Chu had attempted to raise "the agony of the moment" shift allocations of liability. The "agony of the moment" defence is a principle that allows the court to depart from requiring the same standard of care from a party who is forced to exercise judgment under immense stress or pressure, compared to a party not under such pressure. This defence is most successfully used where the injury resulting from the stressed reaction of the defendant is something that might be expected of a reasonable person in the same situation.^[4] The Court of appeal found that the "agony of the moment" defence only goes to the standard of care expected of the driver. The doctrine did not have any bearing on the causation analysis.

Chu argued that Fabrizi actions in responding to Chu's aggression constituted an intervening act that broke the causal link between Chu's actions and Moran's injuries. The Court pf Appeal rejected this argument, stating that minimizing Chu's role as merely an ancillary aspect of the ultimately negligent decision of Fabrizi did not absolve Chu of liability.

Key takeaways

The result in this case is not immediately intuitive and for that reason it is an important development on the application of the "but for" causation test. It is also a useful reminder that a claim for contribution and indemnity can properly be made where one claim is in negligence and the other is for an intentional tort.  Further, it is not for the aggressor in an emergency to capitalize on the doctrine of "agony of the moment" to escape liability or to allege that their intervening act breaks the chain of causation.