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How do you prove your case in a hit and run?

In the decision Yu Peng Ding et al v John Doe et al 2016 ONSC 1690, the Plaintiff was the driver of a silver van that crashed with a guard rail when he allegedly swerved to avoid a tractor-trailer. The investigating officer never confirmed the personal identification of the driver of the tractor-trailer. The Plaintiff sought damages against the Defendant, State Farm Mutual Automobile Insurance Co. (“State Farm”) in accordance with the unidentified driver provisions of the Plaintiff’s automobile policy of insurance.

State Farm brought a motion for summary judgment to dismiss the Plaintiff’s action on the ground that there was no unidentified vehicle that caused or contributed to this accident, and accordingly, there is no obligation for State Farm to pay any claim pursuant to the unidentified motorist provisions of the Plaintiff’s policy of insurance.

The Honourable Justice Lederman explained that the policy’s unidentified motorist coverage has two parts: $200,000 standard coverage pursuant to the Ontario Automobile Policy (“OAPI”), and an additional $800,000 coverage provided by the OPCF-44 Family Protection Coverage Endorsement (“OPCF-44R”).

The coverage under the OAPI is available if the plaintiff establishes on a balance of probabilities that the accident was caused by an unidentified driver. The unidentified driver coverage under the OPCF-44R is available if the plaintiff’s evidence is corroborated by “other material evidence”.

Justice Lederman considered the appropriateness of the summary judgment motion, noting that the court is entitled to assume that the parties have put before it all of the evidence that would be available at trial. In this case, Justice Lederman found the court can readily weigh the evidence and make findings of credibility and determine the issues in question, namely,

whether there is sufficient evidence to prove, on a balance of probabilities, that an unidentified vehicle was involved in the accident, and if so,

whether there is sufficient evidence to prove that the negligence on the part of an unidentified driver caused the accident; and if so,

whether there is “other material evidence” required by OPCF-44R that corroborates the plaintiff’s evidence thereby permitting the plaintiff to access coverage in excess of the statutory minimum of $200,000.

The only evidence with respect to how this car accident occurred came from (i) the affidavit of the investigating police officer, to which is attached the accident report and the officer’s notes, (ii) the plaintiff’s statement to a medical provider on the day of the accident, and his report to his insurer the day after the accident, and (iii) the plaintiff’s discovery evidence.

The officer stated in her affidavit that she spoke to the driver of the tractor-trailer and was told that the Plaintiff was trying to enter his lane of travel which prompted him to honk his horn; as he continued driving he observed the Plaintiff lose control of his vehicle. The officer inspected the tractor-trailer for damage and observed no evidence of contact; as a result, she determined the tractor-trailer had no involvement in the accident and let him go without obtaining his personal information.

The Plaintiff argued that he should not bear the prejudice of a faulty police investigation to ascertain the identity of the tractor-trailer driver. In support of this argument the Plaintiff relied on the decisions Miller v. Bacchuis, (1999) 47 MVR (3d) 154 and Johnson v. Doe, (2006) CanLii 51174. But, these cases dealt with the issue of whether an insured failed to fulfill his or her obligation of reasonable diligence to identify the driver/owner of the other vehicle by reporting to the police, and leaving it to the police and possibly the insurer to do a proper investigation. Justice Lederman found no issue as to whether the Plaintiff provided the police and his insurer with information about the accident in a timely way. The officer interviewed the driver of the tractor-trailer and saw no evidence of any damage/contact on that vehicle. She concluded based on her investigation, that there was no need to obtain the identification information of the tractor-trailer driver.

The onus of proof was on the Plaintiff. For his claim to succeed, he would have to prove that an unidentified driver existed and that it caused the accident. Justice Lederman found that the burden of proof had not been satisfied due to the unreliability of the Plaintiff’s version of the accident. The Plaintiff provided the following conflicting evidence:

– When the police officer asked the Plaintiff whether there was any contact between his vehicle and the tractor-trailer, the Plaintiff appeared to first respond “No” but then changed his answer to indicate that there was contact between the two vehicles.

– The Plaintiff reported to State Farm on February 10, 2010, that there was impact between the tractor-trailer and the front left side of the Plaintiff’s vehicle.

– The Plaintiff testified at his discovery that this was a rear-end collision.

Unfortunately, the Plaintiff was unable to explain the different versions due to many capacity deficits at the time this motion was heard. Further, the passenger in the Plaintiff’s vehicle made no mention of there being any contact between the two vehicles, was uncooperative with the investigation and did not provide any statements or evidence on the motion.

On the totality of the evidence, Justice Lederman found it was just as reasonable to conclude that the Plaintiff was solely responsible for the accident as he may not have been fully attentive and was operating his vehicle at an unsafe speed in the weather conditions. The evidence from the Plaintiff was conflicting and not reliable and there was no probative evidence sufficient to satisfy the burden on the Plaintiff to show on a balance of probabilities that any fault could be found on the part of the tractor-trailer driver or that he was even involved in it. Accordingly, summary judgment was granted and the Plaintiff’s action was dismissed.

Proving the liability of an unknown driver is challenging. These types of personal injury claims are vulnerable to a dispute from the insurance company. That there be some physical evidence (outside of the Plaintiff’s self-report) that is in line with the Plaintiff’s version of events is critical.

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