Lamb v Cooperators, 2020 ONSC 4955
You've been struck by a car. You have pain in part of your body. You're not yet entirely sure where. Then, yes, okay it's your arm. Your arm hurts. But where exactly. It's more your shoulder. How bad is the pain though? You think you might have hit your head. You're not sure. You're worried about how bad it is. There's blood. You're not sure where from. You know it's yours. You know the car hit you. That much you're sure of. Your spouse and your friends bring you indoors. You can't think clearly because of the pain. You spouse goes back outside to talk to the driver.
The driver is gone.
This scenario could happen to anyone. A variation of this happened to Elizabeth Lamb, when she was driving a scooter to her favourite pub, after work, to celebrate her husband's birthday. Just in front of the pub, she was struck by a speeding car in a parking lot. She and her husband and a friend were so focused on her health and injuries, no one got the driver's information. No one told him to stay put. No one thought they had to, as it is the law that one shall not flee the scene of an accident.
However, this driver did flee. Ms. Lamb's only way to sue for damages was through her husband's insurance, through something called the Family Protection Endorsement (technically referred to at the OPCF-44R). This insurance endorsement provides insurance coverage for injuries and losses when there is an unidentified driver, or where the other driver perhaps stayed at the scene, but the limit of their insurance coverage just is not enough to pay for the harm they caused (i.e. an "underinsured" collision).
So, Ms. Lamb started a lawsuit against her husband's insurance company, Cooperators.
But Cooperators brought a motion to dismiss Ms. Lamb's lawsuit in its entirety.
Cooperators argued Ms. Lamb could have reasonably gotten the at-fault driver's insurance information. She should have gone back outside and asked the driver, or had someone in her group do so for her.
But because Ms. Lamb was in shock and so focused on her own health, she did not do that. Her husband and friend were so focused on her health and injuries, they did not either.
The Ontario Superior Court of Justice rejected Cooperators arguments; finding that Ms. Lamb's lawsuit could continue.
The Court found there was nothing unreasonable about Ms. Lamb, her husband, and friends being focused on her condition. She was probably in shock. It also would create too high a standard on injured people, when "they are the very sort of claimant the law should protect."
The Court also specifically rejected Cooperators argument that Ms. Lamb and her group "implicitly communicated" to the driver that "he was free to leave" the scene of the accident simply because they went into the pub to look after Ms. Lamb. The at-fault driver was under a legal duty to stay, as fleeing the scene is an offence under Canada's Criminal Code.
It happens all too often that insurance companies hold injured people to a standard of perfection at the scene of the accident: while in shock, an injured person might say "yes, I am okay" or might jump from their seat to look after their children in the backseat, or might tell ambulance personnel they did not black out. But, later they discover they have a painful fracture, or their entire body is wracked with pain and they are not "okay", or they actually struck their head and lost consciousness until ambulance personnel knocked on their window.
The Court says it best at paragraph 60:
If a plaintiff is injured by a motor vehicle, and because of her injury is not in a position to collect information about the driver of that vehicle or record his license plate before that driver takes flight, they are the very sort of claimant the law should protect. To close the door on such a plaintiff's claim would, in practical terms, have the somewhat perverse effect of only ever affording coverage to those injured by "hit and run" drivers who have the misfortune of being rendered unconscious. That would be a rather absurd result...
The Court's decision in Lamb v. Cooperators, 2020 ONSC 4955 is a win for common sense in a moment when people are at their most vulnerable.
Originally published by Siskinds, September 2020
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