Anjum v John Doe and State Farm, 2016 ONSC 7784 (CanLII)
The Plaintiff, Mr. Anjum Anjum, alleged that as he drove, an unidentified motorist cut him off, causing him to lose control and drive off the road into a ditch on the eastbound ramp of Highway 403 at the exit of Mavis Road.
The defendant, State Farm, denied the collision occurred as a result of actions of an unidentified motorist. State Farm stated that the collision occurred entirely as a result of the negligence of Mr. Anjum.
Before the hearing for summary judgment (and after the human factors experts had already testified), the parties obtained an audio recording of a 911 call reporting the collision. The witness who made the call provided testimony that was consistent with Mr. Anjum’s description of the unidentified motorist and the resulting collision.
Judgment was found in favour of the Plaintiff.
Plaintiff’s Human Factors Position
Dr. Alison Smiley provided human factors expert witness testimony that stated that aspects of the collision that were consistent with a driver who fell asleep, i.e., the collision occurred at 2:00 a.m. and after Mr. Anjum had been awake for 19 to 21 hours.
Dr. Smiley stated that other aspects of the collision did not correspond with a driver who fell asleep. Dr. Smiley noted that Mr. Anjum had only been driving for 10 minutes when the collision occurred, the route was non-monotonous, and required active steering on curves to follow the road to where the collision occurred. Dr. Smiley opined that is was unlikely that Mr. Anjum fell asleep and drifted off the road at a shallow angle as would be expected of a driver who had fallen asleep. Dr. Smiley opined that the collision was most likely caused by an unidentified motorist.
Dr. Smiley acknowledged that she could not exclude the possibility that the collision was due to driver performance, alertness, or micro-sleep given that Mr. Anjun was sleep deprived.
Defendant’s Human Factors Position
Dr. Adam Campbell provided human factors testimony. He said that it was not possible to determine whether the collision was similar or different from a drifting lane departure caused by a fatigued or asleep motorist.
Dr. Campbell opined that the hard braking, steering and subsequent loss of control described by Mr. Anjum was unlikely to have been necessary to avoid a collision with the alleged unidentified vehicle.
The judge found that the expert evidence of Dr. Smiley was not sufficient to prove that the collision was caused by the involvement of an unidentified vehicle. Nonetheless, the judge felt that Dr. Smiley’s testimony was consistent with the evidence as a whole and consistent with a driver who had to apply sudden braking and active steering caused by a sudden movement of a car in front into his lane.