One with head trauma isn't normally expected to immediately identify the other driver, court says
The Superior Court of Justice of Ontario dismissed a motion for summary judgement filed by an insurance company in a rear-end collision case where a possibly concussed person supposedly failed to identify the other driver through reasonable efforts.
The accident occurred in March 2021 after the plaintiff stopped in front of a coffee shop’s drive-thru window. Another vehicle struck her car from behind.
The plaintiff and the other driver got out of their vehicles, inspected the cars’ minor damages, and had a brief exchange. The plaintiff did not request the other driver’s name, licence information, insurance information, or contact information.
After this short conversation, the plaintiff went to pick up the beverage that she ordered. She spoke to the barista, who allegedly witnessed the accident. A month later, she encountered the same employee of the coffee shop. She did not get the barista’s contact details either time.
The plaintiff brought a claim against Aviva Insurance Company of Canada under the unidentified driver coverage of her insurance policy.
Aviva asked the court to summarily dismiss the plaintiff’s claim. The insurer argued that she failed to file a police report within 24 hours as required and failed to exercise reasonable due diligence in identifying the other vehicle’s driver or owner.
The plaintiff, on the other hand, explained that the collision injured her head and left her shocked, disoriented, and emotionally distressed immediately afterward, which was why she did not gather information.
The issue before the court was whether there was a genuine issue requiring a trial, considering that the plaintiff allegedly failed to act with due diligence to identify the driver and owner of the unidentified vehicle.
In Barkey v. Aviva, 2024 ONSC 2249, the Ontario Superior Court of Justice dismissed Aviva’s motion for summary judgement because it found a trial necessary to resolve the factual and legal issues in this case. The question here was whether the plaintiff’s post-collision condition prevented her from gathering the information that she needed, the court said.
The court noted that, at the time of the accident, the plaintiff was a high school student with a history of concussions from sports-related incidents, which made her vulnerable to trauma from head injuries. A doctor’s report stated that she experienced post-concussive symptoms after the collision.
Justice Charles Hackland, writing for the court, said that someone “suffering head trauma or otherwise significantly injured in a collision would not normally be expected to take immediate steps to identify the other driver at the time of a collision.”
The plaintiff’s parents corroborated her claims that she was upset and emotional in the wake of the incident, the court added.
Regarding the notice requirements under Ontario’s Insurance Act, 1990, the court held that the plaintiff’s failure to meet these requirements was intertwined with her medical condition, an issue which called for a trial.
