Condition after car accident may prevent victim from acquiring information needed by insurer: SCJ

In a recent personal injury case, the court said that it did not expect a car accident victim experiencing considerable pain and shock to have the presence of mind to get the identifying information or the license plate of the driver responsible for the injury.

Lamb v. Co-operators General Insurance Co., 2020 ONSC 4955 involved an action for damages filed against an unidentified motorist and against an insurance company. The plaintiff was driving her electric scooter through a parking lot when a car operated by an unknown driver collided with her. The plaintiff’s husband and their friend were present during the accident. The plaintiff suffered from a right tibia plateau fracture which needed surgery.

While the insurance agreement covered bodily injuries if one was hit by an “unidentified automobile,” the insurer filed a motion for summary judgment contending that there was no triable issue because the plaintiff had made no effort to identify the car’s driver or owner despite having every opportunity to do so.

The question before the Ontario Superior Court of Justice was whether there was a triable issue regarding whether the plaintiff had unreasonably failed to identify the driver or to record his license plate. The court quoted a case which Ontario courts have previously cited with approval, Leggett v. British Columbia (Insurance Corp. of), 1992 CanLII 1263 (BC CA), where the judge said that the test was whether the claimant was in such a condition or position where they could reasonably discover and record the appropriate information.

The plaintiff, her husband and their friend initially claimed that they did not have the chance to note the driver’s identity or the license plate number, but during cross-examination, they conceded that they had the opportunity to acquire this information when the driver exited his car to survey the potential damage to it.

“The question is not whether it was possible for Ms. Lamb to identify the driver or record his license plate,” wrote Justice James Stribopoulos for the court. “Instead, it is whether her failure to do so was unreasonable in the circumstances, which necessarily takes into account her condition in the aftermath of the accident.”

The court said that the plaintiff did not act unreasonably when, immediately after the accident, she prioritized her own condition over the acquisition of information regarding the driver or his license plate. The plaintiff had fractured a bone in her knee and was experiencing considerable pain and probably also shock during that time.

Assuming that the plaintiff’s husband and their friend would qualify as agents, they also did not act unreasonably when they focused on providing aid to the injured plaintiff by carrying her to a nearby pub and getting ice for her leg, the court said. The husband returned to the place of the accident within less than five minutes, but the unknown driver had fled by that point.

The court noted that, under the Criminal Code, a driver involved in an accident has a legal duty to stop his vehicle, furnish his name and address and offer assistance to the person injured; thus, the fact that the husband and their friend carried the plaintiff to the pub should not be considered an implicit communication to the unknown driver that he could freely leave.

For these reasons, the court said that the defendant insurer had failed to show that there was no triable issue regarding the reasonableness of the plaintiff’s failure to identify the driver or to record his license plate.