An Insured who makes a claim against an unidentified automobile under s.33 of the Newfoundland Insurance Act is required to prove that all reasonable efforts in the circumstances were made to ascertain the identity of the owner or driver of the unidentified automobile and the reasonableness of such efforts is to be judged from the time of the accident, not when the Insured becomes aware of the injury and potential cause of action

Donovan v. McCain Foods Ltd., [2004] N.J. No. 70, Newfoundland and Labrador Supreme Court – Court of Appeal

The Appellant Insured was involved in a motor vehicle accident in September 1999. All of the parties involved in the accident got out of their vehicles, inspected the scene and discussed the situation. No damage was evident to any of the vehicles and none of the parties believed that they had been injured. The parties did not exchange any information and each left the scene of the accident. The Insured later felt pain and discomfort and was subsequently diagnosed with a soft tissue injury. She commenced an action for damages pursuant to s.33 of the Newfoundland Automobile Insurance Act, R.S.N.L. 1990, c. A-22, which allows an Insured to obtain from its Insurer damages for accidents involving unidentified automobiles if the identity of the vehicle’s driver or owner cannot be ascertained. The trial judge held that the Insured could have easily ascertained the identity of the at-fault driver or owner immediately following the accident. As she chose not to, she could not prove that the identity of the driver or owner could not be ascertained. As such, her claim was dismissed.

On appeal, the Court held that the onus is on the Insured to prove that the identity of either the owner or driver of the at-fault vehicle cannot be ascertained. This burden ought not be unduly onerous, but an Insured must prove that all reasonable efforts in the circumstances were made to ascertain identity. The Court further held that the relevant time period over which to determine the reasonableness of the Insured’s efforts commences at the time of the accident, not when an Insured becomes aware of injury and hence a cause of action.

The Court applied this reasonableness standard and held that at the time of the accident, the Insured was capable of ascertaining identity but made no efforts to do so. As such, she could not prove that the identity of the driver or owner of the at-fault automobile could not be ascertained. In addition, the doctrine of contra proferentum did not apply to the statutory terms of the insurance policy and the Insured was not entitled to relief from forfeiture since the denial was not based upon imperfect compliance with a condition of the policy but rather due to a dispute with respect to the Insured’s proof of entitlement to coverage.

The appeal was therefore dismissed.

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