Field Used as Parking Lot Deemed “Highway” In ICBC Hit and Run Claim
One of the restrictions in bringing a lawsuit against ICBC for damages caused by an unidentified motorist is the incident needs to occur on a “highway“. ¬†Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the definition of highway in the context of a hit and run claim.
In this week’s case (Nadeau v. Okanagan Urban Youth and Cultural Association) the Plaintiff was struck by an unidentified motorist while standing in a field that was used as a parking area for an outdoor concert. ¬†The Plaintiff sued ICBC for damages. ¬†The Court ultimately decided that given the use of the private property at the time it was a highway and the unidentified motorist claim could proceed. ¬†In so finding Mr. Justice Powers provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The¬†Motor Vehicle Act, R.S.B.C. 1996, c. 318 defines ‚Äúhighway‚ÄĚ as follows:
(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 the present case, the issue is whether the place where the accident happened falls within the definition of ‚Äúhighway‚ÄĚ in s. 1(c) of that definition. The defendant, ICBC, denies that the place where the accident occurred was a ‚Äúhighway‚ÄĚ on the basis that it is a private place to which the public did not have access, or was not invited for the purposes of parking.
¬†¬†¬†¬†¬†On June 30, when Mr. Nadeau attended the concert with his friend, Mr. Jong, they parked in an area that Mr. Jong described as an area where people with passes parked. However, there is no evidence about what passes were needed, even when this area was controlled by security. There were passes for security, crew, media, artists, guests, all access and production. It is not even clear that everybody that entered this area with a vehicle required a pass. They used their pass to get into this parking area. On July 1, when they returned, Mr. Jong‚Äôs memory is that they passed through the secondary gate and that he had to show a pass to security people at this gate. He recalls there were a couple of rows of parked vehicles in this area. He says that later in the evening, before the accident, when he came and went, that there was no security at this gate, he was not stopped, and was not required to provide any pass. Mr. Nadeau‚Äôs evidence as well is that he does not recall any security at this gate later that evening on July 1, when they attended. Mr. McMann‚Äôs evidence was that initially, in the secondary area, people needed a pass to park in this area, but then things got slack. Mr. Tosh Mugambi could only be sure that the VIP area was being strictly controlled. There were a number of different kinds of passes. The concert goers had ticket stubs, but there were a large number of different kinds of passes, artist passes, VIP passes, guest passes, and the guest could be anybody, including volunteers, or anybody who happened to receive a pass from either one of the organizers or even the owners of the property who had a number of passes.
¬†¬†¬†¬†¬†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.