It’s not often that the victim of an at-fault driver cares about whether their claim is in tort or contract, but the recent decision in Tucker v. Unknown Person turns on that point.
Tucker was run over while crossing the road in October 2007. The identity of the driver and owner of the negligent vehicle was unknown. Tucker told AXA, his insurer, about the accident a month later, and sued Unknown Person in October 2009.
Nobody knew where Unknown Person could be found for service, and the suit was not defended. In November 2010, Tucker demanded unidentified driver coverage from AXA, which was part of his standard insurance contract, and part of everyone’s standard insurance contract. AXA denied coverage.
If Tucker’s claim was in tort, Tucker was out of time to sue, because limitations begin to run when the elements of the tort are known, including damage, and more than two years had passed since Tucker put AXA on notice.
If however the claim by the first party insured against AXA was a contractual claim, the time limitation period began to run when the contract was breached by AXA, by denying coverage.
The Newfoundland and Labrador Court of Appeal decided that the claim lay in contract, so limitations began to run in November 2010, a full three years after the accident in question.
At Ches Crosbie Barristers we have always believed that unidentified driver claims, sometimes called hit and run claims, lie in contract, so it was reassuring to see this confirmed by the Province’s highest court. The decision is a common sense decision, and one which gives pedestrians and others injured through no fault of their own an honest break. Not every court decision attracts this kind of praise.