Wagners Serious Injury Lawyer Blog

Car accident victims often become injured as a result of the negligence of a driver who cannot be identified. Fortunately, Nova Scotia, like New Brunswick and PEI, has an insurance regime which grants compensation to such injured car accident victims. When a person is injured as a result of the negligence of an unidentified driver, the person's "Section D" insurance policy becomes engaged.

The relevant insurance provision reads:

The insurer agrees to pay all sums that: (a) A person insured under this policy is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile.

The typical scenario under which this insurance provision is triggered is a "hit and run", where the victim is injured by a driver who then drives away and cannot later be identified. These situations are relatively straight-forward.

A more complex scenario occurs when a victim is injured as a result of a foreign object lying loose on a roadway and flying into the victim's vehicle (usually being projected from the tires of another vehicle). These scenarios are usually highly contested, with insurance companies arguing that the mere existence of the foreign object on the roadway is no evidence of negligence of an unidentified driver.

In such situations, the case law maintains that the car accident victim has an onus to establish facts from which the Court may reasonably draw the inference that the negligence of the driver of an unidentified vehicle was the probable cause of foreign object lying loose on the highway. The burden of proof is whether it is more likely than not that the driver of an unidentified vehicle's negligence constituted the cause of the plaintiff's injury.

As is the case in every claim involving debris lying on a roadway, the procurement of direct evidence of negligence is impossible. In circumstances such as this, plaintiffs must prove their claim using circumstantial evidence. The principles are well-established for assessing liability where the evidence is circumstantial.

In the oft-cited decision of the Supreme Court of Canada in Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456 (S.C.C.), the Court considered the role circumstantial evidence plays in meeting the burden of proof and stated at para. 35:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon. Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

Once the Plaintiff has established that it likely came from the undercarriage of a motor vehicle, the fact that the car part fell off the vehicle and onto the highway will be sufficient to justify the a prima facie case of negligence against an "unidentified driver". A similar ruling was made by the British Columbia Court of Appeal in Lee v. Insurance Corp. of British Columbia, 1986 CarswellBC 111.

The deceased driver in Lee, supra, was driving on a highway when witnesses say he suddenly plunged over an embankment. The cause of the accident was unknown. The initial theory was that the deceased had fallen asleep at the wheel. Days later, police discovered a foreign car part (a detached trailer hitch) on the floor of the deceased's car.

Based on the presence of this foreign car part in the deceased's car, the family of the deceased surmised "that the wheels of the eastbound semi-trailer truck had thrown up the trailer hitch from the road surface and that this projectile had penetrated the windshield striking Kelly in the face." They brought a claim against the Insurance Corporation of British Columbia and argued that the accident resulted from the negligence of an "unidentified driver".

Insurance company denied the claim. There remained alternate explanations for the cause of the accident: the deceased could have fallen asleep, he could have simply lost control of his vehicle, etc. Furthermore, the insurance company argued that even if it was accepted that the car part likely caused the accident, there was no evidence of negligence on the part of an unidentified driver. It was argued that the car part could have fallen on the road due to vandalism, for example. This argument was rejected by the Court of Appeal.

Discussing whether the existence of the foreign car part in the deceased's car (likely previously on the road) established a prima facie case of negligence, the Court stated at para. 11:

In my view, in the absence of an explanation, the fact of its falling off the vehicle and onto the roadway is sufficient to justify the conclusion that most probably the driver was negligent. That does not happen " 'if those who have the management use proper care' " and " 'it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care'

A personal injury lawyer experienced in these complex fact scenarios is best able to advance a claim for damages on behalf of injured victims. The lawyers at Wagners routinely achieve successful result for victims of car accident involving an "unidentified driver".

The Supreme Court of Nova Scotia recently released a decision which underlines the importance of consent to the availability of insurance following a car accident in which someone is injured.

In the case of Deveraux v. Dixon, the son of an insured driver caused a car accident. Two passengers of the car he struck were injured. They started a law suit against the son and his mother (as the owner of the car).

The mother's insurance company did not defend the case, arguing that an exclusion clause in the insurance policy did not require them to defend the driver of an insured car when that driver is driving the car without consent. The relevant provisions in the insurance contract and the Insurance Act read, respectively:

The insurer agrees to indemnify the insured and, in the same manner and to the same extent as if named herein as the insured, every other person who with his consent personally drives the automobile, or personally operates any part thereof, against the liability imposed by law upon the insured or upon any such other person for loss or damages arising from the ownership, use or operation of the automobile.

...

114 (1) Every contract evidenced by an owner's policy insures the person named therein, and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage

(a) arising from the ownership, use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person, and damage to property.
The mother and son did not have the financial resources to pay for the victim's damages on their own. Therefore, in the event the insurance company was absolved from having to defend the mother and son, personal injury lawyers for the victims included the victims' insurance company (Aviva) to the claim. In the event a person is struck by an uninsured driver, the victim's insurance company is statutorily required to compensate their insured.

In this case Aviva argued that implied consent was given and that, therefore, the mother and son were not uninsured.

The person that caused the accident was a 24-year-old son of the insured owner of the car. He lived with his mother. His mother bought the car, insured it, but did not register it. She said she was unemployed and was receiving a disability payment, and did not have the money to register the vehicle until the end of the month. She was holding off on the registration until then.

Though trained to drive, the son was not licensed at the time of the car accident. He therefore never drove any of his mother's cars.

On the day of the car accident, the mother went out to dinner. She left her car (and its keys) at home. The son had been drinking at a friend's house. He returned home sometime in the evening. He was intoxicated when he then decided to take the truck. He did not contact his mother to ask permission, and did not discuss it with anyone else. It was the first time he had driven the truck.

The Court noted the following test for determining whether implied consent was given for the son to drive the car:

The test for implied consent has been stated more recently by Stewart, J. of this Court as "whether upon analysing all the surrounding circumstances objectively, a reasonable person observing the situation would conclude that [the driver] had the implied consent of [the owner] to drive the truck... The state of mind of the owner and driver are strong factors in determining the issue of implied consent".

The Court found that there was no evidence that there had been consent, express or implied, for the son Emerson to drive the insured mother's vehicles. She was aware that he did not have a driver's license. As such, she did not find it necessary to explicitly tell him he could not drive her vehicles. He was not listed on her automobile insurance, and, as far as she knew, he had not driven her vehicles in the past.

This case is important to victims of car accidents in Nova Scotia, New Brunswick and PEI. The availability of an insurance company to be able to provide appropriate compensation is often necessary. Where the issue of consent is brought up by an insurance company to deny coverage, it is possible that car accident victims can be denied recourse. In such cases it takes experienced lawyers, specializing in the field of personal injury litigation to navigate the course required to ensure that an insurance company will be mandated to respond to a claim for damages.