Fourthly, the applicant submits that the “but for” test is used for exclusionary purposes and the adjudicator failed in not outlining this part of the test. I agree. Chisholm v. Liberty Mutual is clear the use of the “but for” test is “to eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome.” The test does not establish legal causation. So even though the adjudicator did not conduct an analysis on the “but for” test, the decision reasoned why the applicant did not meet the causation test because the impairments were not a direct cause of the use and operation of the vehicle. The adjudicator found that the chain of causation was broken, and the dominant feature of the impairments were as a result of the assault. So even though the adjudicator did not specifically refer to the “but for” test, I find it doesn’t change the result. Both the purpose and causation test need to be met for an incident to be considered an accident. The “but for” test is only one part of the bigger causation test. The applicant failed the other parts of the causation test, and therefore the incident cannot be considered an accident.
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