COURT CASES on HIT and RUN ACCIDENTS
A person injured as a result of a hit and run accident in British Columbia can bring an action for damages against ICBC under Section 24 of the Insurance (Vehicle) Act, if they are unable to ascertain the identity of the driver of the vehicle, or if the owner is not liable. There does not have to be actual contact with the other vehicle or vehicles in order for a hit and run claim to succeed, such as in the case of claimants swerving to avoid a vehicle coming right at them in their own lane, with an accident ensuing as a result of trying to avoid contact with the offending vehicle.
The law expects claimants to make “reasonable efforts” to ascertain the identity of the offending motorist or motorists, however the law does not expect you to actually find the person or persons responsible for the hit and run accident. “Reasonable efforts” include notifying ICBC, notifying the police, following up with the police, posting signs at the scene of the accident looking for witnesses, placing ads in the newspapers, placing online ads, and speaking to local merchants and residents in the area. Failure to make what the Court considers to be “reasonable efforts” will result in the dismissal of your hit and run claim with ICBC.
RELYING on the POLICE ALONE is NOT SUFFICIENT
In Lort v Kwan, the Court ruled that relying on the police alone to ascertain the identity of the unknown motorist was insufficient, and the Plaintiff’s claim was dismissed.
[32] Ms. Kwan stopped parked her vehicle in the right lane east of the plaintiff’s motor cycle.
[33] The UIM pulled over and stopped in the right lane east of the Kwan vehicle, but the plaintiff did not obtain any information from that driver or the licence number of the car.
[34] The plaintiff said that he believed that the police took basic information at the scene and also spoke with him at the hospital.
[36] The plaintiff did not post signs looking for help in identifying the UIM. Although he did return to the scene of the accident some weeks late to take pictures, he did not advertise in an effort to identify the UIM, nor did he question any of the merchants in the busy commercial area. He did not make any enquiries of the police. He said that he thought that the police were handling the investigation of the accident. The plaintiff submitted a claim under the unidentified motorist provisions of the Act…
[99] The plaintiff acknowledges that he did not advertise, post signs or notices, attend at the scene of the accident to make inquiries of merchants in the neighbouring area, or follow up with the police after his initial contact with them at the time of the accident.
[100] ICBC submits that the plaintiff’s failure to take any of the steps ordinarily associated with all reasonable efforts to identify the owner or driver of a vehicle who has caused an accident is fatal to his claim against it.
[101] I conclude that the plaintiff did not make any reasonable efforts to identify the UIM involved in the accident other than speaking to the police who attended the accident scene and later in the hospital. He left everything to the police without ever following up on their progress.
[102] In the circumstances, I conclude that the plaintiff’s failure to take reasonable steps precludes him from succeeding in this action against the ICBC. Accordingly, although I have concluded that the UIM is 40% at fault, I dismiss the action against ICBC with costs.
HIT AND RUN ACCIDENT MUST OCCUR ON A “HIGHWAY”
One of the requirements of an ICBC hit and run injury claim is that the hit and run accident must have occurred on a “highway”. Under the Motor Vehicle Act, “highway” is defined as follows :
“highway” includes
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
In Nadeau v. Okanagan Urban Youth Cultural Association et al. , the Plaintiff was injured in a hit and run accident when he was attending a music concert at an outdoor venue located on an Indian Reserve. The venue was essentially an open field, with some fencing and a big open state. Access to the venue was from a public road onto a dirt road, which leads to an entrance where tickets are sold. People would then drive their vehicles through this entrance into a large open field which was used as a parking lot. One of the issues given judicial consideration was whether or not the accident occurred on a “highway” as defined in the applicable legislation. The Plaintiff argued that it did, however ICBC’S lawyer argued that it did not, saying that the accident occurred at a private place to which the public did not have access, or else was not invited for the purposes of parking. The Court would eventually rule that the accident did in fact occur on a “highway”.
[115] The area has been described as a field and physically it was a field. It is private property. However, it was being used as a parking lot when the accident occurred. At some point during the concert, there was some control over who had access to this area. However, that was not consistent throughout the concert, and I am satisfied that by the evening of July 1, this secondary area was no longer being controlled or restricted by the organizers or by security. The public had access to this area for the purposes of parking. The primary parking for the concert goers was in the general parking area, but there was no longer any control or restrictions on parking in the secondary area. Therefore, I am satisfied that for several hours before and, certainly at the time of the accident, this was a place in which the public had access for the purposes of parking. The public at this time included concert goers who might proceed through this secondary gate and clearly included anyone who was there in order to carry on the business of putting on or assisting in some way with the concert, or their friends or supporters. The people that had access at that time was a broad enough group to fall within the definition of the public in s. 1(c) of the Motor Vehicle Act.
SUBSTITUTION ORDERS ARE MANDATORY ONCE IDENTITY OF DRIVER BECOMES KNOWN
In McStravick v. Metzler, the Plaintiffs were injured in a hit and run accident, and brought ICBC claims for their injuries. ICBC was named as a nominal Defendant in the initiating legal documentation. Shortly before trial, the identity of the offending motorist became known, and the lawyer for the Plaintiff sought to substitute this person in place of ICBC as a Defendant. This was opposed by the individual, and by ICBC. The Court ordered the substitution.
[53] I would observe at the outset that s. 24(6) of the Insurance (Vehicle) Act is mandatory in nature. If the identity of the driver is ascertained then that person must be added as a defendant in substitution for ICBC. The factors applicable to cases where parties are being added under the Supreme Court Civil Rules therefore have no application: Tse v. ICBC (1996), 24 B.C.L.R. (3d) 394 (S.C.).
[55] The mandatory language of the section also limits, and probably eliminates, any scope for the application of the equitable principle of estoppel insofar as applying the estoppel principle would operate to defeat the intent and effect of the section.
[56] Even if there might still be some room for estoppel to operate, I am not satisfied that estoppel has been made out on the facts of this case. Ms. Sidwell submits that as a result of the “shared assumption” of all counsel that she was not the unknown driver, she ceased being represented by counsel and did not take part in the trial. What that submission fails to address is the fact that (1) the substitution application can be made at any time prior to judgment being granted, and (2) her interests were represented throughout by ICBC as nominal defendant. As to the former, since s. 24(6) allows for a substitution application to be made at any time prior to judgment, a trial might well be completed before an application is made and with no hint of it beforehand. Here, Ms. Sidwell had two years or more of advance notice and she had representation by counsel during that time. In addition to her own counsel, counsel for ICBC represented the interests of the unknown driver, whoever that might have been, and thus in some respects at least she had two lawyers representing her interests until shortly before trial.
[57] Ms. Sidwell complains that she was deprived of taking part in the trial, but until she was made a party she would have had no standing to take part. She points to no prejudice associated with the fact that her interests, at least her interests in a general sense, were represented by counsel for ICBC instead of her own counsel.
NO EXPANDED OBLIGATIONS for HIT and RUN VICTIMS
In Nicholls v ICBC, the British Columbia Court of Appeal addressed the issue of “reasonable efforts”, rejecting ICBC’S lawyer’s argument for expanded obligations of hit and run victims.
[31] Thus, the only qualification on the requirement of “all reasonable efforts” in s. 24(5), is the subjective aspect of the test that requires the “position and condition” of the plaintiff to be considered in determining what efforts are reasonable in the circumstances. In all cases, the single standard to be met is one of reasonableness.
[32] In sum, I am not persuaded that the chambers judge erred in describing the test in s. 24(5) as one of reasonableness. In citing the statutory provision he was alive to the requirement on the respondent to demonstrate that “all reasonable efforts” had been made in the circumstances to ascertain the identity of the unknown tortfeasor. He then determined whether, in the circumstances of this case, considering the respondent’s subjective circumstances at the time of the accident, and based on a cost-benefit analysis of his efforts, or lack thereof, after the accident, the respondent had met the standard required by the provision. In my view, in the circumstances of this case, he did not err in adopting this approach to the issue.
PLAINTIFF EXCUSED for NOT OBTAINING LICENCE PLATE NUMBER at SCENE
In Singh v. Clay, the Plaintiff got out of his vehicle after being rear-ended, however was unable to record the licence plate of the other motorist, who drove off without stopping. ICBC’S lawyer argued that the Plaintiff did not make reasonable efforts to ascertain this information, however the Court rejected this line of argument.
[77] The question for determination is whether the plaintiff made all reasonable efforts to obtain the identity of the driver of the vehicle which struck his vehicle on September 18, 2007: Leggett.
[78] In the present case, Mr. Singh might have been able to take down the licence plate number of the offending vehicle if he had done so immediately. However, he did not expect the vehicle to leave the scene of the accident. Once it became clear that the vehicle was not going to stop, his wife made an effort to write the number down, but only got two of the letters. Following the accident Mr. Singh took all reasonable steps to ascertain the identity of the driver. He spoke to two witnesses, he telephoned ICBC, attended the police, phoned his lawyer to obtain advice as to how to proceed, and, as a result, put up flyers seeking witnesses.
[79] In Leggett the plaintiff’s case was dismissed because the Court found he had made a decision not to pursue his rights at the time of the accident. In Smoluk the Court distinguished Leggett stating, at para. 9:
[9] In my view, the Leggett case is clearly distinguishable from this case because the plaintiff in this action made no decision not to pursue her rights. She was prevented from obtaining more information because of the precipitate departure of the wrongdoer, and in my view the plaintiff acted reasonably in taking down the license plate number which would lead any reasonable person to believe that the identity of the person had been or could easily be ascertained. The fact that she got the number wrong in such circumstances does not indicate unreasonableness.
[80] The facts in Smoluk are similar to those in this case. The offending driver in that case drove away while the plaintiff was inspecting the damage to his vehicle. While the driver in Smoluk did get the opportunity to take down a partial plate number Mr. Singh did not. I find that under the circumstances his expectation the other driver would comply with the law and stop his/her vehicle was a reasonable one. When the vehicle left the scene as he was getting out of his vehicle, it was too late to get particulars of the licence plate number. I conclude Mr. Singh acted as a reasonable person would have acted in preserving his rights.
In Larsen v. Doe, the Plaintiff was injured as a pedestrian. The driver of the vehicle that struck here assisted her to her feet, and eventually gave her a ride home. The Plaintiff did not get any information that would help ascertain the identity of the driver, or the licence plate number of the car that struck her. ICBC’S lawyer argued that she failed to make all “reasonable efforts” to ascertain the identity of the driver, however the Court rejected this line of argument.
[27] The defendant driver and her passenger husband acted responsibly after the collision. They went to the plaintiff’s aid, assisted her to her feet and offered a ride to the hospital. The plaintiff declined, asking instead to be driven home. The driver complied and then waited at the residence until the plaintiff indicated that they could leave.
[28] The plaintiff did not seek any information as to the identity of the driver or the licence plate of the vehicle. The plaintiff testified that, following the collision, she was “out of it”, “running on adrenalin” and simply wanting to go home to be with her husband. I accept the evidence of those who observed her at home after the collision who variously described the plaintiff as “out of it”, dazed, shaking, white in the face with blotchy red marks, unusually quiet and withdrawn. I also accept the evidence of her husband that she “talked nonsense” and gave answers not responsive to his questions. All of this is consistent with a layman’s understanding of shock.
[30] It appears that police were called that evening and began their investigation the following day. The defendant was also promptly notified.
[31] Thereafter the plaintiff acted in a determined manner in endeavouring to identify the vehicle and driver. She and her husband posted a notice on a pole adjacent to the scene of the accident. While doing so, she observed what she believed to the same vehicle taking the same path as on the evening of the accident. She and her husband gave chase, to no avail.
[32] On other occasions, the plaintiff took up surveillance in that area in the not unreasonable hope that the vehicle might drive by again.
[33] She also accosted the driver of a vehicle observed in a mall parking lot as she believed that the driver’s vehicle may have been the vehicle that struck her.
[34] Section 24(5) of the Insurance Act states that a party cannot receive judgment against the Insurance Corporation of British Columbia as nominal defendant in a “hit and run” accident unless the court is satisfied that:
(a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and
(b) the identity of those persons or that person, as the case may be, is not ascertainable.
[35] Under subsection (a), the claimant is required to make all reasonable efforts, not best efforts, to determine the identity of the unknown driver or owner: see Godara v. Insurance Corp. of British Columbia, 2008 BCSC 183 (CanLII), 2008 BCSC 183, 58 C.C.L.I. (4th) 183 at para. 43.
[36] In determining whether a claimant has made all reasonable efforts, the court must have regard to the subjective condition of the claimant at the time of the accident: see Leggett v. Insurance Corporation of British Columbia (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.) [Leggett cited to B.C.L.R.] at para. 12. Therefore, where a claimant fails to obtain the identity of the driver or owner at the time of the accident because she was in a state of shock, the claimant will not be held to have acted unreasonably. In order to find that a claimant was in a state of shock, medical evidence is not required; a finding that the claimant was “taken by surprise and confused” is sufficient: see Hocaluk v. Insurance Corp. of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360 at para. 56.
[37] Under subsection (b), the phrase “not ascertainable” should not be strictly interpreted to mean “could not possibly have been ascertained” but, rather, whether the identity of the person “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position”: see Leggett at para. 11.
[38] I am satisfied that the plaintiff was in a significantly altered emotional state following the collision that rendered her incapable of rationally assessing her duties and obligations. With the meaning of Leggett, she was not in a condition that it would have been reasonable for her to discover and record the appropriate information.
[39] Once recovered, she employed all reasonable efforts to ascertain the identity of the owner and driver. While not all possible efforts were employed, those that were fall well within the classification of “reasonable”.
NO OBLIGATION on ICBC’S PART to ADVISE YOU of YOUR LEGAL OBLIGATIONS
In Morris v Doe, the Plaintiff’s claim was dismissed for failure to take all reasonable efforts to identify the unknown driver. The Plaintiff had also argued that it would be unfair to have to pay ICBC’S costs, as they had failed to advise her of her legal obligations with respect to a hit and run accident. The Court ruled that there is no such obligation on the part of ICBC adjusters.
[51] It is clear from the decisions cited in my original judgment dismissing the action that ICBC has no obligation to advise a plaintiff of the nature of the steps they need to take in order to satisfy the court they have taken all necessary and reasonable steps to ascertain the identity of the offending unidentified driver.
ESTOPPEL as a POSSIBLE ARGUMENT WHERE NO REASONABLE EFFORTS HAVE BEEN MADE by CLAIMANT
In Springer v. Kee, the Plaintiff was injured in a motor vehicle accident, but was unable to ascertain the identity of the other driver at the scene. The Plaintiff reported the accident to ICBC and the police, however did not take any further steps than this to ascertain the identity of the other driver. The Plaintiff then brought an ICBC claim for damages arising from the hit and run accident, however ICBC’S lawyer opposed it, arguing that the Plaintiff did not make reasonable efforts to ascertain the identity of the other driver. The Court agreed, and dismissed the lawsuit, however was critical of how ICBC handled the situation, and suggested that the outcome of the case may have been different had estoppel been plead.
[92] I accept the view that ICBC was not obliged to warn the plaintiff of his ongoing obligations in the immediate aftermath of his reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.
[93] In my view, although not obliged to advise people of their obligations under s. 24(5), ICBC ought to recognize the risks that laypeople will rely on remarks made by adjusters suggesting settlements can be expected without warning that the claim will be denied if s. 24(5) is not complied with. Regrettably, I also note that the “Helping You with Your Hit and Run Claim” pamphlet published by ICBC that was given to the plaintiff by the adjuster does not mention the implications of s. 24(5) of the Act.
[94] Counsel for the plaintiff mentioned the concept of waiver, but did not argue this as a case of estoppel and the pleadings do not advance any claim against ICBC except as nominal defendant.
[95] Section 24(5) does not permit me to consider the actions of ICBC in the assessment of the plaintiff’s obligations under the Act. That may be the subject of a waiver or estoppel, which is outside of the scope of this application.
FEARING FOR YOUR SAFETY is a REASONABLE JUSTIFICATION for NOT GETTING INFORMATION
In Burton v ICBC, a woman had feared for her safety at the accident scene. ICBC had argued that she had a reasonable opportunity to get the other driver’s information, however the Court rejected this argument.
[31] I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.
[32] I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.
[33] Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.
[34] I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.
ADVERTISING after the ACCIDENT
One of the factors a Court looks at with respect to “reasonable efforts” being made by the claimant to ascertain the identity of the driver and/or owner of the other vehicle is the issue of advertising for witnesses after the accident, such as, for example, in the newspaper.
In Nicholls v. Anderson, the Plaintiff made no attempts at any advertising for witnesses. As such, ICBC’S lawyer argued that the hit and run victim did not satisfy this requirement. Despite the fact that the Plaintiff did not make any “reasonable efforts” with respect to advertising, the Court ruled that even if the Plaintiff had done so, the chances of finding a witness would have been extremely remote. The Court dismissed the argument from the lawyer for ICBC, with such ruling being upheld on appeal.
[13] The last step contended by ICBC is one in which the claimant ought reasonably to have taken is the placing of a newspaper advertisement or advertisements. This aspect of ICBC’s argument has been of the greatest concern to me on this application because it is a step that could have been taken at relatively modest cost, and because in this particular case the claimant took absolutely no positive steps aimed at ascertaining the identity of the persons responsible.
[14] I do not think that this argument can be answered solely by the claimant pointing — as was done in argument — to the fact that the accident did not happen in a well-defined geographic area or one where there was a specific readership of a specific newspaper likely identifiable. In my view, if there was an obligation to place a newspaper advertisement or advertisements, they could have been placed in community newspapers serving the north side of the Fraser in the areas of Mission and Hope and perhaps Maple Ridge, or alternatively, as ICBC argued today, in one or both of our Vancouver daily newspapers which enjoy a readership outside the greater Vancouver area.
[15] Mr. Nicholls perceived himself in the statement that he gave within days of the accident as having sustained more than a trivial injury. If his only recourse legally were to pursue the tortfeasor, the person responsible for the spill, what steps would he have taken if acting rationally in pursuit of his own interests? Would he have gone to the extent of placing such newspaper ads?
[16] In my view, the reality is that there would have been only an extremely remote chance of such a line of enquiry being successful. If there ever was a time when the citizens of this province had a habit of scanning the legal notices printed in the daily or weekly newspapers’ classified sections, that day has long passed. The presumed target for any such advertisement would have been someone who would happen to have been following the truck in question in daylight in the vicinity of the accident scene, who would have seen the diesel oil splashing, would have made mental note of it as something significant, and then would have been able to make note of the truck’s appearance with sufficient particularity to identify the driver. That person, if one existed, would then have to read the advertisement in question. The possibility of all of this is so remote that in my view for the claimant in his position to have undertaken even the modest cost of taking out such an advertisement would have been absurd.
[17] That is not to say that it would be inappropriate in any case for a claimant injured in a motor vehicle accident to take that step. As I say, the reasonableness of a person’s conduct depends in part on the benefit to be gained if they undertake a course of action. I would not say, certainly not on this application today, that a person who had suffered a catastrophic injury involving quadriplegia or brain injury or the like could feel free not to take a positive step such as taking out a newspaper advertisement or posting an internet classified advertisement in an attempt to locate a tortfeasor, no matter how remote the chances of that being successful might seem; but in this case, given the claimant’s relatively modest injuries as alleged and as attested to in his statement, I do not think that would have been a reasonable requirement on his part.
SUMMARY of CASE LAW PERTAINING to “REASONABLE EFFORTS”
In Morris v Doe, the Court provides a useful summary of the case law as it pertains to the “reasonable efforts” obligation of a hit and run victim:
[55] An examination of the jurisprudence on what constitutes reasonable efforts reveals the following principles:
a. depending on the plaintiff’s condition at the scene of the accident, it may not be realistic to expect the plaintiff to obtain particulars as to the identity of the offending driver particularly where the plaintiff is in shock or confused or injured: Tessier; Hocaluk; Ingram v. ICBC (1994), 45 B.C.A.C. 218 [Ingram]; Holloway v. ICBC, 2007 BCCA 175, at para. 14; Larsen v. Doe, 2010 BCSC 333 [Larsen]; Becker v. ICBC, 2002 BCSC 1106 [Becker], at para. 20; Nelson at paras. 19-20
b. failure to record a licence plate number at the time of the accident when the plaintiff has the opportunity to do so or obtain information as to the driver’s identity, either personally or through the assistance of others, but does not take advantage of the opportunity amounts to a failure to take reasonable steps at the time of the accident: Burley at paras. 23-24; Watson v. Insurance Corporation of British Columbia, 2004 BCSC 1695 [Watson]; Cannon v. ICBC, 2005 BCSC 602;
c. simply notifying the police of the accident may not be sufficient to satisfy the requirements of s. 24(5): Tessier at para. 17; Becker at para. 18;
d. the Act does not put the responsibility to find the unidentified driver on the police; rather the responsibility lies with the plaintiff: Becker at para. 17;
e. where a plaintiff does notify the police of the accident, it is not reasonable for them to simply assume the police will make the necessary inquiries without following up with the police and checking to see if there was an investigation and if so what progress was being made in it: Becker at paras. 17-18; Tessier at para. 17; Goncalves at para 23;
f. simply reporting the matter to the police and ICBC, without more, has led to the dismissal of a plaintiff’s action for failure to comply with the requirement of taking all reasonable steps to ascertain the identity of the driver: Meghji v. ICBC, [1998] B.C.J. No. 3107 (P.C.) (QL);
g. where the police attend the scene of the accident and take witness statements and indicate they are investigating the hit and run accident, it may not be necessary for the plaintiff to take any additional steps, depending on the circumstances: Hough v. Doe, 2006 BCSC 1450 [Hough], at paras. 16-17 & 21; Ingram at para. 13;
h. a plaintiff placed in a position of danger at the time of the accident cannot be expected to remain in that position to obtain details of a licence plate and movement to a position of safety before trying to obtain any licence information does not constitute a failure to take reasonable steps at the scene of the accident: Nelson at paras. 19-20;
i. posting signs in the area of the accident and/or advertising in local newspapers in an effort to find witnesses within a reasonable time after the accident where the accident occurs at a busy intersection is a reasonable and expected step as it is possible that someone present at the time of the accident could be of assistance in ascertaining the identity of the driver of the vehicle that left the scene: Johal v. ICBC (1992), 9 C.C. L.I. (2d) 172 [Johal]; Fan v. Doe, 2009 BCSC 568 [Fan]; Nelson at paras. 21-22; Godara at paras. 51-54; Tessier at para. 17; Halfyard v. ICBC (1993), 26 C.C.L.I. (2d) 320 [Halfyard];
j. failing to post signs at the scene of the accident or place advertisements in the newspaper in a timely manner or in a manner that provides insufficient detail where it is possible that there were potential witnesses who may have information about the accident will result in a denial of coverage under s. 24 of the Act: Johal; Fan; Burley; Becker; Nelson at paras. 21-22; Jennings v. ICBC, 2002 BCSC 341;
k. repeatedly canvassing regular patrons of the business where the plaintiff’s vehicle was damaged in the parking lot of the business may constitute reasonable steps to ascertain the identity of the driver: Janzen v. Insurance Corporation of British Columbia, 2004 BCPC 437;
l. posting signs and advertising in local newspapers may not be a reasonable step where the accident occurs on a high speed area of highway or a on highway in an area that is undeveloped and sparsely populated: Hough at para. 24; Goncalves at para. 16-21;
m. once it is found that a plaintiff acted reasonably in believing they had the information that would be required, such as a licence plate number, there is no onus cast upon them to undertake a highly speculative further investigation upon being advised they have the wrong license plate number: Smoluk v. ICBC (1993), 26 B.C.A.C. 23 [Smoluk]; Walker v. Farnel (1995), 36 C.C.L.I. (2d) 312, at para. 24;
n. a plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in a hit and run case where they rely upon information provided by the offending driver that subsequently turns out to be untruthful: Mudrie v. Grove, 2010 BCSC 1113, at paras. 33-36;
o. failure to follow up on directions to take additional steps such as posting signs for witnesses or advertising, once advised the recorded licence plate number is incorrect will result in a denial of coverage under s. 24 of the Act: Watson;
p. failing to make a timely report to the police and failing to follow up on available information from the scene of the accident such as information in the possession of ambulance personnel who attended the scene will result in a denial of coverage under s. 24 of the Act: Johal;
q. the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity: Tessier at para. 19.
[56] As the jurisprudence demonstrates, what constitutes reasonable steps varies with the circumstances of each case. However, where it was not reasonable to obtain information that would assist in ascertaining the identity of the driver at the time of the accident, taking no steps at the second stage in the days or weeks after the accident, cannot amount to discharging the clear onus placed upon a plaintiff to take reasonable steps to ascertain the identity of the unknown driver.
In Goncalves v Doe, the Court dismissed the Plaintiff’s claim, as the Plaintiff had not made reasonable efforts to ascertain the identity of the other driver. The Court summarized some legal principles applicable to the “reasonable efforts” requirement.
[4] Under s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) may be the nominal defendant and liable for damages to the plaintiff for damages from a motor vehicle accident where the identities of the owner and driver of the other vehicle involved are not ascertained.
[5] ICBC will only be liable as nominal defendant if the plaintiff has made “all reasonable efforts to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be”: Insurance (Vehicle) Act, s. 24(5).
[6] The appropriate test to determine whether all reasonable efforts have been made is: Did the plaintiff do all that he would have to identify the other parties involved if he intended to pursue legal action against them, if ICBC were not potentially liable under s. 24 of the Insurance (Vehicle) Act?: Leggett v. Insurance Corporation of British Columbia (1992), 72 B.C.L.R. (2d) 201 (C.A.) at para. 13.
[7] The requirement to make all reasonable efforts is not limited to the immediate aftermath of the collision. To satisfy this test, the plaintiff must have made all reasonable efforts at the scene of the collision to identify the other parties. The plaintiff must also have made all reasonable efforts to identify the other parties in the days and, possibly weeks, that followed the collision: Slezak v. ICBC, 2003 BCSC 1679, at para. 42.
[8] “All reasonable efforts” does not mean “all possible efforts”. “Reasonable” means “logical, sensible and fair,” and does not mean “absurd, whimsical or unwarranted”: Slezak at para. 40.
[9] Similarly, “not ascertainable” does not mean “could not possibly be ascertained,” but instead means “could not reasonably be ascertained”: Leggett at para. 11.
[10] The plaintiff is not required to take an action to identify the other parties that, while possible, is “highly unlikely” to produce any result: Liao v. Doe, 2005 BCSC 431, at para. 14.
[11] “All reasonable efforts” includes a subjective aspect. In deciding whether all reasonable efforts were made, consideration must be given to the plaintiff’s physical and mental state at the time of the collision, and the circumstances surrounding the collision: Holloway v. I.C.B.C. and Richmond Cabs and John Doe, 2007 BCCA 175, at para. 13.
CLAIMANTS NOT EXPECTED TO DO SOMETHING THAT WOULD BE FRUITLESS IN ANY EVENT
Although victims of hit and run ICBC claims are expected to make “reasonable efforts” to ascertain the identity of the offending motorist or motorists, sometimes a failure to take certain steps will be excused by the Court if taking such a step would not have made any difference anyways.
In Akbari v. ICBC, the Plaintiff was involved in a hit and run accident, and brought an ICBC claim for damages. ICBC’S lawyer argued that the Plaintiff did not make the necessary “reasonable efforts” to ascertain the identity of the other motorist involved, such as staking out the intersection to see if the vehicle was there again, and talking to residents who lived nearby. The Court ruled that such efforts would have been fruitless, and rejected ICBC’S lawyer’s argument.
[65] Counsel for the defendant suggested to Mr. Akbari that he should have canvassed the residents of the townhouse complex located near the intersection to search for possible witnesses, but I consider that would have been a fool’s errand. The photographs of the scene indicate that the townhouse complex is some distance off the roadway and that it is highly unlikely that anyone in the townhouse complex would have been able to see anything happening in the intersection, particularly late at night, when it was dark and raining. The resident who did call to report the collision only did so because she heard the sound of the crash.
[66] Counsel also suggested that Mr. Akbari could have staked out the intersection to see if he could spot the vehicle that crossed his path. Again, this would have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall anything more specific than the fact that the other vehicle was a light-colored small car.
[67] To summarize, I am satisfied that it is more probable than not that the accident was caused by the negligent actions of an unidentified driver who entered the intersection from 84th Avenue against a red light; and drove across Nordel, cutting off Mr. Akbari’s vehicle when it was so close to the intersection as to pose an immediate hazard. I am satisfied on the balance of probabilities that Mr. Akbari did not fail to meet the standard of care required of a reasonably prudent motorist when he swerved to avoid colliding with the vehicle crossing his path.
[68] I am also satisfied that Mr. Akbari made all reasonable efforts to ascertain the identity of the unknown driver; and that the unknown driver’s identity is not ascertainable.
CREDIBILITY ATTACKS
When faced with a hit and run claim under Section 24 of the Insurance (Vehicle) Act, ICBC’S lawyer will often attempt to discredit the testimony of a hit and run victim by suggesting that there never was “another vehicle”, and that they only have themselves to blame for the accident and consequent injuries.
In Jennings v. Doe, the Court discussed the issue of credibility with respect to hit and run claims.
[51] The evidence establishes that there was physical damage to the plaintiff’s vehicle present after the accident that was not present before the accident. It is unlikely that that the damage to the wind deflectors resulted from contact with the hydro pole − the vehicle struck head on and the wind deflectors on the passenger side were undamaged. The damage to Mr. Jennings’ vehicle corroborates his testimony.
[52] Counsel for the defendants objected to the admission of the testimony of Mr. Simon and Mr. Jennings, Sr., and various documents indicating that Mr. Jennings did, at the earliest opportunity, and consistently since that time, claim that the accident had been caused by the actions of the driver of a tractor-trailer unit. Counsel submitted, correctly, that previous “consistent” statements of a witness are normally not admissible for the truth of their contents, or to buttress the credibility of a trial witness’ testimony. The defendants say they are not asserting a “recent” fabrication, although by implication they are asserting that Mr. Jennings has fabricated a story about how the accident happened.
[53] In my view, earlier decisions of this court establish that in circumstances such as these, the previous out-of-court statements are admissible and relevant not for proof of the truth of the out-of-court statements but to rebut any inference that a claimant is lying because he failed to assert his present version of events at the first and any subsequent opportunity when it would be reasonable to expect him to do so, or had made inconsistent claims in the past about the circumstances of the accident.
[54] In Vanderbyl v. Insurance Corporation of British Columbia, (1993) 79 B.C.L.R. (2d) (S.C.), at paras. 37 and 38, Mr. Justice Trainor, an experienced trial judge, set out a list of elements to be considered in assessing the credibility of a plaintiff in cases such as these. Among the elements identified by Justice Trainor were the following:
1. Whether the plaintiff reported the existence of the unidentified vehicle as soon as reasonably possible to the police or other persons in authority and to I.C.B.C.
2. Whether the description of the unidentified motor vehicle given by the plaintiff was as specific as might reasonably be expected from the particular plaintiff in the circumstances.
3. Whether the plaintiff’s testimony at trial is consistent with statements given to the police, doctors or medical attendants, family members, associated or other witnesses or to I.C.B.C.
4. Whether the plaintiff has called witnesses to testify to whom statements were made or who might testify about the plaintiff’s actions after the incident.
…
8. Whether the plaintiff’s actions following the accident are consistent with those one might reasonably expect of a person in similar circumstances.
[55] In this case, Mr. Jennings reported the existence of the unidentified vehicle as soon as reasonably possible to the police and to the Insurer. Mr. Jennings told drivers who stopped at the scene and the ambulance attendant − Mr. Simon − that a tractor-trailer unit had been involved and he attempted to make a report to police at the scene, but was prevented from doing so by the ambulance personnel who were concerned about his physical injuries. Mr. Jennings Sr. reported the involvement of a second vehicle to the Boston Bar RCMP Detachment on the day of the accident. Mr. Jennings Sr. reported the circumstances to the dial-a-claim adjuster by telephone and Mr. Jennings made a statement in person and in writing to an adjuster a few days after the accident. The evidence of Mr. Simon about Mr. Jennings’ anger and his physical condition when assessed at the accident scene is consistent with what one might reasonably expect of a person in similar circumstances. I believe Mr. Jennings, and I accept his testimony about how the accident happened.
NOTICE REQUIREMENT
In Mudrie v Grove, the Court had occasion to discuss the six month limitation period within which to notify ICBC in writing of your intention to make a hit and run claim. In the particular facts of this case, the Plaintiff, at the scene of the accident, was given the name of the other motorist by the other motorist himself. One year elapsed, at which time the Plaintiff did a vehicle plate search to determine the particular information about the other motorist. At this point, he realized that he was likely given a false name at the scene by the other motorist.
[43] I conclude on the evidence that the plaintiff’s obligation to provide written notice to ICBC under s. 24(2) did not arise at the time of the accident. However, as I have found, the negative vehicle plate search results reported on June 5, 2008 must have led – quite reasonably – to the plaintiff apprehending the potential for an unidentified driver claim; otherwise, there is no explanation for the writ having been issued with pseudonymous defendants. In the words of the Supreme Court of Canada in Peixeiro, at that point, or very shortly thereafter, the plaintiff could reasonably have discovered that he had a cause of action against ICBC. I therefore find the plaintiff did have that obligation to notify ICBC as soon as reasonably practicable, within days of June 5, 2008.
[44] The plaintiff argues that constructive notice of the claim was given thereafter on September 4, 2008, when ICBC was contacted to determine if it had any information regarding Mr. Grove. In my view, even if I could overlook the statutory requirement that notice be in writing, this contact was nowhere close to being sufficient to discharge the plaintiff’s obligation. There is no evidence of any indication having been given to ICBC that an unidentified driver claim might be pursued.
[45] The only notice, written or otherwise, given ICBC in this case was the writ and statement of claim. I see nothing in the statute which precludes the pleadings themselves serving as the required notice under ss. 24(2). The purpose of the notice provision is to provide ICBC with sufficient opportunity to make its own investigation of the other driver’s or owner’s identity: Stelmock v. I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v. McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of the driver or owner will lead to a tort claim, relieving ICBC from direct liability. If those persons are insured by ICBC, it may eventually have to make an indemnity payment on its assureds’ behalf, but may possibly then have the potential of recouping some of its loss through adjustments to those assureds’ future premiums. In the case of an out-of-province driver, ICBC may of course avoid liability altogether. Given the potential for fraud in cases of alleged hit-and-run accidents, notice to ICBC will also enable it to investigate the circumstances of the reported accident to determine if the plaintiff’s claim has merit: Epp v. Harden Estate (1988), 24 B.C.L.R (2d) 89, 31 C.C.L.I. 229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC receiving details of an accident through a writ, as opposed to discrete advance notification that a claim will be made. And in my view the writ with its attached statement of claim, in the present case, disclosed sufficient detail that service on ICBC alone would have met the notice requirement, if it had been done in a timely manner.
[46] This brings us to the real question in this case: whether ICBC received notification of the claim, through the writ, within the time parameters given in the statute. The writ was not served until April 2009, ten months after the negative vehicle plate search. No explanation for this delay has been offered.
[47] In respect of interpreting the notice requirement, the plaintiff argues that the legislative purpose behind the requirement is the same as that which lies behind the two-month notice requirement to municipalities under s. 286 of the Local Government Act, R.S.B.C. 1996 c. 323: the prevention of prejudice to the defence of a government body. It is argued that this court should direct its inquiry into whether ICBC has been prejudiced by the late notification; the logic of that argument is that ICBC cannot be presumed to have been prejudiced, when the trail left by “Mr. Grove” would already have gone cold by the time the plaintiff ought to have realized this was an unidentified driver case. The notice provisions of the two statutes are, however, entirely different. Under the Local Government Act, there is a blanket requirement that notice of claims falling within the ambit of s. 286 be delivered within two months, but subsection (3) specifically provides that the failure to give notice, or sufficient notice, is not a bar to maintaining an action if the court believes (a) there was reasonable excuse, and (b) the municipality has suffered no prejudice. In contrast, under the Insurance (Vehicle) Act’s s.24, the obligation is to give notice as soon as reasonably practicable, and in any event – meaning, whether reasonably practicable or not – within six months.
[48] If the prevention of prejudice could be said to be the dominant purpose of the notice requirement, it would appear that the legislature has either deemed there to be prejudice after six months has elapsed, or has otherwise determined, as a matter of policy, that ICBC’s exposure to such claims ought to be capped at that point. To subject that provision to an overarching, implied test involving the finding of real prejudice would be tantamount to rewriting the statute. The most that could be said is that a consideration of prejudice might, in certain circumstances, be implied by the qualifier “reasonably”. But even so, that cannot assist the plaintiff in the present case, when notice was not given to ICBC until long after the six-month period had lapsed.
[49] ICBC was not notified of this claim within six months of when the plaintiff could reasonably have discovered that he had a cause of action against ICBC. The claim against ICBC is therefore dismissed.
HIT and RUN ACCIDENTS DURING the COMMISSION of a CRIMINAL OFFENCE
In Hannah v John Doe and ICBC, the Plaintiff was in a parking lot in the process of returning her shopping cart. A car drove by, and an unknown person grabbed her purse from her, causing her to fall and hit her head on the ground. The Plaintiff sued. The lawyer for ICBC argued that the relevant provisions of the Insurance (Vehicle) Act, with respect to hit and run accidents, should not apply where a crime has been committed during the act of the hit and run. The Court allowed the Plaintiff’s claim to proceed, and this was upheld by the Court of Appeal, which commented that :
[13] In Chan v. Insurance Corp. of British Columbia (1996), 16 B.C.L.R. (3d) 96, 20 M.V.R. (3d) 126 (C.A.), this Court considered s. 23(1) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c. 204. Section 23(1) of the 1979 Act and s. 24(1) of the Act as it now stands do not differ in substance. In that case, an action was brought by a front seat passenger who was injured when she was struck by a brick thrown from an oncoming vehicle that was never identified. The brick throwing incident from a vehicle was apparently not a single occurrence for there were other reports of similar incidents close in time in the same municipality. The issue in Chan was whether the brick throwing incident that caused the injury came within the ambit of the unidentified motorist provision.
[14] In Chan, ICBC did not dispute that the plaintiff could prove a cause of action against the unidentified driver in that the driver would be liable as a party to the intentional torts of battery or assault or both; instead, ICBC argued that s. 23(1) did not provide coverage for an intentional tort: Chan at para. 7. Similarly, in the appeal before us, ICBC does not dispute that the plaintiff was the victim of a civil assault, battery and conversion and a criminal assault and robbery and would therefore have a cause of action against the driver and passenger. As it did in Chan, ICBC argues that intentional torts and criminal acts do not come within s. 24(1) of the Act. To support that position, ICBC argues that s. 24(1) is adapted from third party liability coverage and that a basic principle of insurance law is that such insurance is presumed to cover only damages from negligence and not damages from intentionally inflicted injuries. I am unable to agree with that argument.
[15] One of the flaws in ICBC’s argument is that it makes no distinction between cases in which a claim for damages is advanced against an “at fault” motorist and cases in which the insurer seeks to recover from its insured the damages paid to a claimant based on an insured’s policy breach involving intentional or criminal acts.
[16] As noted above, s. 24(1) permits an action to be brought against ICBC as nominal defendant representing unidentified owners and drivers, thus affording a remedy to drivers and passengers in vehicles and to pedestrians who suffer damage where a remedy would not otherwise exist. In Chan, Finch J.A., as he then was, held that both intentional and negligent acts could constitute “the cause of action” in a claim for damages arising out of the use or operation of a vehicle under s. 23 (now s. 24) . In that regard, he noted, at para. 22:
I observe that s. 23 does not require proof that the injury arises out of the negligent use or operation of a motor vehicle. It requires only that the plaintiff establish “a cause of action” against the driver (or owner) and that the injury arises out of the use or operation of a motor vehicle. It is clear on this language that if the driver of the unidentified vehicle were proven to have intentionally driven his vehicle into collision with the plaintiff’s vehicle, the plaintiff could bring a claim under s. 23.
[39] In my opinion, the judge did not err in dismissing ICBC’s application, for this is a case in which there is a continuous chain of causation stretching between the use of the motor vehicle on the one hand and the injuries sustained by the plaintiff on the other.
