In the recent decision of Plante v Darling, 2023 ABKB 335, the Alberta Court of King’s Bench found that the Plaintiff’s claim, which was initiated more than 2 years after the date of the accident, was not statute barred by Alberta’s Limitations Act, RSA 2000, c L-12, on the basis that the Plaintiff’s PTSD diagnosis was not discoverable on the date of loss. While the decision is based on Alberta’s legislation, the reasoning and interpretation is likely applicable across the country as most provinces, including Nova Scotia, have similar legislative and insurance regimes regarding limitations and claims against unidentified or uninsured motorists.
The circumstances of the case are tragic and unique. On October 1, 2015, Ms. Baptiste, whose vehicle had run out of gas on the highway at night, was tragically struck and killed as she attempted to wave down a vehicle being driven by the Plaintiff Plante. On October 6, 2015, Plante attended a medical clinic with complaints of sleeplessness and other psychological issues since the accident. He was referred to and subsequently began seeing a psychologist on November 3, 2015, at which point he was made aware that his primary issue was PTSD associated with the trauma of the Accident.
Plante had apparently contacted a lawyer in 2016 and was advised that he did not have a claim since he had struck Ms. Baptiste. His next interaction with legal counsel was not until he was served with a Statement of Claim on behalf of Baptiste’s estate. The Estate’s action against Plante was settled separately and discontinued, but Plante’s discussions with defence counsel appointed by his insurer in that action led Plante to file a Statement of Claim of his own against Baptiste’s Estate on October 31, 2017. Baptiste’s Estate was subsequently noted in default, at which point the Administrator of the Motor Vehicle Accident Claims Fund stepped in to defend Plante’s action pursuant to Alberta’s Motor Vehicle Accident Claims Act, RSA 2000, c M-22 (the “MVAC Act”), a legislative scheme to provide compensation for people injured as a result of the negligence of an uninsured or unidentified motorist.
In Nova Scotia, all insured drivers have similar coverage under Section D of the Standard Automobile Insurance Policy and/or by making a claim against the Facility Association of Nova Scotia pursuant to sections 139A to 139D of Nova Scotia’s Insurance Act, RSNS 1989, c 231, and associated regulations.
The matter proceeded to a summary trial to determine whether Plante’s injuries are covered by the and whether his claim was barred by the Limitations Act. Justice Poelman concluded that Plante’s injuries arose from Baptiste’s “use or operation of a motor vehicle” within the meaning of sections 4 and 5 of the MVAC Act, stating at para 29:
[29] In my view, there was an unbroken chain of causation between Ms. Baptiste’s normal use of her vehicle and her subsequent activities which led to the accident. Motorists looking for assistance after running out of fuel are within the expectation of users of a highway. This can be seen by Mr. Plante’s reducing speed and looking for pedestrians when he saw the parked vehicle, with hazard flashers, on a shoulder of the highway. Further, clearly Ms. Baptiste had not abandoned the use of her vehicle, evidenced by activating her hazard lights, leaving a passenger in the vehicle and being found about forty metres from her vehicle. She was doing what was necessary to continue the use of her vehicle, namely, precuring assistance to get fuel.
The Court also concluded that Plante’s claim was not barred by Alberta’s Limitations Act, noting the unique circumstances of the claim, Plante’s level of education and sophistication, and that as of October 31, 2015, which is 2 years prior to Plante filing his Statement of Claim, Plante “was not aware that he had PTSD symptoms, had no means of knowing that these were caused by the accident, and could not know that these injuries would warrant the bringing of a proceeding against Ms. Baptiste’s estate.” (at para 41).