Ontario Personal Injury Lawyers
Call 1-888-404-5167
Preszler Injury Lawyers

Does Uninsured Motorist Coverage Apply to Drive-by Egg Attack?

Under normal circumstances, when you are injured in an Ontario motor vehicle accident caused by another driver’s negligence, you have the right to file a personal injury lawsuit against that driver and collect damages. Of course, in practice the negligent driver’s insurance is likely to pay the damages. What happens when the driver is an uninsured motorist or–as is often the case with hit-and-run accidents–the driver is never identified?

The answer, you probably know, is uninsured motorist coverage. Ontario law requires all insurers to offer such coverage. With uninsured motorist coverage, your insurance company effectively steps into the shoes of the unknown or uninsured (or underinsured) driver and pays your claim. However, the insurer may also opt to defend against your claim in court. In this sense, the insurer is not on your side, but rather an adversary.

Talk With Our Legal Team

If you have any questions and would like to schedule a call with our legal team for a FREE no-obligation consultation, contact us now. During this call you can ask any questions as it relates to your accident and/or claim and we'll discuss your options and possible outcomes.

Regardless of where you're located in Ontario – we may be able to help you. Don't delay - call us. Our lines are open 24/7.

The Accident and the Victim’s Claim Against Her Insurer

A pending case before the Ontario Superior Court of Justice, Gilbraith v. Intact Insurance Company, offers an unusual twist on the typical litigation that ensues between accident victims and their uninsured motorist carriers.

Here is what happened. In April 2014, the plaintiff was walking down a street in Waterloo. Suddenly, a car approached her from the opposite direction. A witness estimated the car was speeding, traveling at between 60 and 70 km/hr in a 50 km/hr zone.

As the car passed by the plaintiff, a passenger sitting in the front of the vehicle threw an egg–or possibly multiple eggs–at the plaintiff, which struck her right eye. The car then sped away without stopping. According to court records, neither the car itself nor its driver or occupants were ever identified. The egg caused permanent damage to the plaintiff’s right eye.

The plaintiff subsequently filed a personal injury lawsuit, which she served on her father’s uninsured motorist carrier and Ontario’s Superintendent of Financial Services. The plaintiff was also covered by this policy. Before the Superior Court, the defence filed a motion for summary judgment, effectively asking the judge to dismiss the case because, in their view, the plaintiff’s injuries “did not arise directly or indirectly from the use or operation of an automobile by an inadequately insured motorist.” Put another way, a passenger in a moving vehicle throwing an egg at a pedestrian is not the sort of accident that is covered by an uninsured motorist policy.

Call 1-888-608-2111 for available options or Book a Consultation

Judge: Plaintiff Meets Purpose, Modified Causation Tests

Justice Alexander Sosna dismissed motion for summary judgment, holding there was a “genuine issue” requiring trial.

The judge began by noting that under Ontario case law, an uninsured motorist endorsement is a “big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle.” In reviewing cases such as this, the Court must ask two questions:

  1. The Purpose Test: “Did the incident occur in the course of the ordinary and well known activities of automobiles?”
  2. The Modified Causation Test: “Was there an unbroken chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or ‘but’ for?”

With respect to the first question, the purpose test, the insurer argued that in the context of this case, the uninsured vehicle was used as a “catapult for the egg,” which was clearly an “aberrant use of the motor vehicle.” That is to say, using a car to catapult eggs is not an “ordinary and well known use to which motor vehicles are put.”

But as Justice Sosna pointed out, cars are regularly used to transport both passengers and cargo–which in this case, included both the egg and the person who threw it at the plaintiff. This was enough to satisfy the purpose test.

As for the second question, the modified causation test, the defence argued the “act of intentionally throwing an egg by a passenger from the moving motor vehicle was an intervening act that broke the chain of causation between the driving of the vehicle by the unidentified motorist and the plaintiff’s injuries.”

Again, the judge disagreed. The driving of the car was not a wholly separate and distinguishable act from the throwing of the egg. To the contrary, given the speed at which the car was traveling–which was above the speed limit, according to eyewitness testimony–the driver’s actions made “the plaintiff’s injury more likely than not,” as the egg contained “greater kinetic energy” than it otherwise would have had. In support of this point, the judge cited the testimony of the plaintiff’s expert witness, a biomechanical engineer who offered his opinions on the estimated “velocity of the egg.”

In addition, the judge said the unknown driver was “independently negligent” by failing to stop or slow his vehicle when he knew–or should have known–his passenger was preparing to throw an egg at a pedestrian. This is akin to a premises liability claim, where the owner of a building is responsible for failing to address a known hazard that endangers the safety of its visitors.

Accordingly, the judge held the plaintiff was entitled to take her lawsuit to trial. The court further awarded costs against the insurer and the superintendent with respect to the motion for summary judgment.

Contact Preszler Injury Lawyers Today if You Have Been Injured in a Toronto Pedestrian Accident

According to Jeffrey Preszler, “this is an unusual case as most accident-related claims against insurance companies do not involve drive-by egg throwing attacks. But this case does illustrate the lengths insurers will go to avoid paying out a potentially valid claim.”

If you are seriously injured in an accident caused by an unknown or uninsured motorist, you cannot assume that your insurance carrier will do right by you. You need to work with an experienced Toronto personal injury lawyer. Contact Preszler Injury Lawyers today to schedule a free consultation with one of our lawyers today.



Call us now at

151 Eglinton Ave W,
Toronto, ON
M4R 1A6
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
4145 N Service Rd
Burlington, ON
L7L 4X6
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
2 County Ct Blvd #400,
Brampton, ON
L6W 3W8
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
105 Consumers Drive
Whitby, ON
L1N 1C4
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
92 Caplan Ave #121,
Barrie, ON
L4N 0Z7
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
380 Wellington St Tower B, 6th Floor,
London, ON
N6A 5B5
Toll Free: 1-888-608-2111
2233 Argentia Rd Suite 302,
East Tower Mississauga, ON
L5N 6A6
Toll Free: 1-888-608-2111
1 Hunter St E,
Hamilton, ON
L8N 3W1
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
459 George St N,
Peterborough, ON
K9H 3R9
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
22 Frederick Street,
Suite 700
Kitchener, ON N2H 6M6
Fax: 1-855-364-7027
Toll Free: 1-888-608-2111
116 Lisgar Street, Suite 300
Ottawa ON
K2P 0C2
Toll Free: 1-888-608-2111
10 Milner Business Ct #300,
Scarborough, ON
M1B 3C6
Toll Free: 1-888-608-2111
*consultation offices

DISCLAIMER: Please be advised that the header image and other images throughout this website may include both lawyer and non-lawyer/paralegal employees of Preszler Injury Lawyers and DPJP Professional Corporation and unrelated third parties. Our spokesperson John Fraser, or any other non-lawyer/paralegals in our marketing is not to be construed in any way as misleading to the public. Our marketing efforts are not intended to suggest qualitative superiority to other lawyers, paralegals or law firms in any way. Any questions regarding the usage of non-lawyers in our legal marketing or otherwise can be directed to our management team. Please also note that past results are not indicative of future results and that each case is unique and that case results listed on site are from experiences across Canada and are not specific to any province. Please be advised that some of the content on this website may be out of date. None of the content is intended to act as legal advice as each situation is independent and unique and requires individual legal advice from a licensed lawyer or paralegal. For legal advice on your individual situation – we can provide legal guidance after you have contacted our firm and we have established a lawyer-client relationship contractually. Maximum contingency fee charged is 33%. Finally, our usage of awards and logos for awards does not suggest qualitative superiority to other lawyers, paralegals or law firms. All awards received from third party organizations have been done so through their own reasonable evaluative process and do not include any payment for these awards except for the use of the award logos for our marketing assets. We are also proud to service additional provinces like Alberta, British Columbia and Nova Scotia.