ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘hit and run’

Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

January 25th, 2018

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.

In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter.  He pursued the shoplifter to his vehicle.  When confronted the shoplifter ran the plaintiff over and injured him.  The collision was described as follows:

[17]        The plaintiff described what happened.  When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle.  The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”.  He asked for the merchandise back.  The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.  

[18]        At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance.  His feet slid under the passenger-side door.  The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot.  He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go.  When he let go, the passenger-side door hit him.  As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle.  The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19]        The plaintiff attempted to get up.  However, a bystander said “I am not sure if you realize what just happened to you.  You should probably stay down”.  So he did.  First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident.  The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88]        I find that, in this case, the vehicle had not been started when the plaintiff approached it.  I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93]        Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable. 

[94]        Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support.  In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty.  The trial judge found no contributory negligence.  On appeal, the Ontario Court of Appeal found the officer to be 25% negligent.  However, on further appeal to the Supreme Court of Canada, that decision was reversed.  At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95]        Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.  

[96]        Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle.  I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.


Relying on Police Alone Insufficient Effort in ICBC Hit and Run Injury Claim

January 31st, 2011

As previously discussed, when suing ICBC for damages as a result of the actions of an unidentified motorist (UIM), a Plaintiff needs to make reasonable efforts to ascertain the identify of the UIM.  Failing to do so will prove fatal in the claim against ICBC under s. 24 of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing whether relying on the police to investigate the identity of an unknown motorist is sufficient.

In this week’s case (Lort v. Kwan) the Plaintiff was involved in a motor vehicle collision.  The Plaintiff was on a motorcycle travelling behind the defendant’s vehicle.  An Unidentified Motorist changed lanes in front of the Defendant causing the Defendant to hit her brakes and swerve to the right which in turn caused a collision with the Plaintiff.  Mr. Justice Armstrong found that all 3 motorists were partly to blame for the crash with the UIM and the Defendant each bearing 40% of the blame and the Plaintiff being 20% at fault.

Despite finding that the UIM was partly to blame the Court dismissed the Plaintiff’s claim against ICBC (who was sued in place of the UIM) because the Plaintiff failed to take reasonable steps to identify the UIM following the crash.  Mr. Justice Armstrong provided the following reasons:

[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.


ICBC's Hit and Run Appeal "Doomed to Failure"

December 23rd, 2010

Reasons for judgement were released today by the BC Court of Appeal dismissing ICBC’s appeal of judgment finding them liable for injuries caused during a 2004 “gas and dash” incident.

In today’s case (Nayar v. ICBC) the Plaintiff was the owner of a gas station.  An unknown motorist fuelled her vehicle and attempted to drive away without paying.  The Plaintiff confronted the unknown motorist and stood in front of her vehicle.  The motorist then inched forward and revved her engine.  The Plaintiff placed his palms on the hood of the vehicle at which time the motorist “accelerated to 100 kph while (the Plaintiff) lay on the hood of the vehicle, and then turned sharply, throwing him to the pavement“.

The Plaintiff could not ascertain the identity of the driver so he sued ICBC for compensation under section 24 of the Insurance (Vehicle) Act.  At trial ICBC argued that “the plaintiff is wholly to blame for his injuries“.  Madam Justice Gropper disagreed finding ICBC liable to pay the Plaintiff damages.  In doing so the Court made the following findings:

[]           It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault.  The events and the injuries which the plaintiff sustained were due to Jane Doe’s blameworthiness.  Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff’s injuries were the actions of Jane Doe.

[]           Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase.  The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases.  This is a much more infallible gas-and-dash avoidance procedure.

[]           In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[]           Judgment is therefore entered against the nominal defendant, ICBC.

ICBC appealed this finding although the appeal was dismissed for lack of timely prosecution.  ICBC Applied to reinstate the appeal but this failed as well with the BC High Court finding that ICBC’s appeal was ‘doomed to failure’.  The Court of Appeal provided the following useful reasons:

[6] I am unable to see any error in principle in the reasons expressed for dismissing the application to reinstate the appeal. In my view, it is clear Groberman J.A. considered each of the criteria that govern the kind of application that was before him. As he stated, it was not for him to assess whether the appeal would succeed or fail save for the very limited purpose of deciding whether it was appropriate to reinstate it. That required him to consider the merit in the one ground of the appeal advanced. Having done so, he determined it was insufficient to justify reinstatement, which was the issue before him. That was his determination to make. I see nothing inconsistent in his effectively characterizing the merits of the appeal as being so very weak as to render the appeal doomed to failure. For the purpose of considering reinstatement, he did not have to decide there was absolutely no merit in the appeal to conclude it was doomed, only that there was insufficient merit to justify its being reinstated.


ICBC Unidentified Motorist Claims and Post Accident Advertising

November 23rd, 2010

(IPDATE:  The case discussed in the below post was upheld on Appeal on October 26, 2011)

As previously discussed, victims of injuries sustained in collisions caused by “unidentified motorists” can seek compensation directly from ICBC under section 24 of the Insurance (Vehicle) Act provided that they comply with this section.  One of the requirements of s. 24 is for the claimant to make “all reasonable efforts” to ascertain the identity of the at fault motorist.  One reasonable effort a Plaintiff can take is to advertise for witnesses.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing post accident advertisements and explaining that these are not always necessary to bring a successful s. 24 claim.

In today’s case (Nicholls v. Anderson) the Plaintiff was involved in a single vehicle motorcycle accident in 2005.  He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“.  He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages.  ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill.  Mr. Justice Saunders disagreed and dismissed ICBC’s application.  In doing so the Court provided the following useful reasons about advertisements and s. 24 claims:

[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 scamming 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.

This case is interesting because the Court went further and struck the paragraphs of ICBC’s Statement of Defence alleging that the identity of the offending motorist was ascertainable.  The Court cited the New BC Supreme Court principle of “proportionality” in arriving at this decision.   Mr. Justice Saunders provided the following reasons:

[18] So the application is dismissed, and in my view it is appropriate in this case to go further than that and to dispose of the defence. In my view in all likelihood I know as much about the reasonableness of the claimant’s actions, given the evidence that has been presented, as a trial judge would, and so I am able to rule conclusively on that issue. I also acknowledge the points made by counsel for ICBC and counsel for the claimant as to the need to under the new Rules to have regard to proportionality. So, in conjunction with dismissing the application, I rule that paras. 2 and 4 of the statement of defence of ICBC be struck. Those are the paragraphs in which it is alleged that the identity of the driver/owner was ascertainable and that the claimant has not complied with the Act in failing to make all reasonable efforts to ascertain the identity of the unknown driver.


More on ICBC Claims and Hit and Run Lawsuits: The "Reasonable Efforts" Requirement

September 6th, 2010

Further to my previous articles on this topic, when suing ICBC for compensation for injuries sustained in a hit and run accident (Unidentified motorist claims) one of the requirements under Section 24 of the Insurance (Vehicle) Act is for the claimant to make “all reasonable efforts to ascertain the identity of the unknown driver“.  If a claimant fails to do so their claim for compensation against ICBC will fail.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.

In this week’s case (Gonclaves v. Doe) the Plaintiff was involved in a motor vehicle collision on Highway 1 in British Columbia in 2006.  The Plaintiff was driving a bus at the time of the crash.  His vehicle was struck by another vehicle.  After the collision the Plaintiff failed to obtain identifying information from the other motorist.  In the days and weeks following the crash the Plaintiff did not report the incident to the police or ICBC, instead he assumed his employer would take care of this.  The Plaintiff then sued ICBC under section 24 of the Insurance (Vehicle) Act seeking compensation for his personal injuries.  ICBC opposed the lawsuit and asked that the case be dismissed.

Mr. Justice Harris agreed with ICBC that the Plaintiff failed to take reasonble efforts to identify the unknown motorist.  As a result the lawsuit was dismissed.  In doing so Mr. Justice Harris provided the following useful summary of the requirement for claimants to make “all reasonable efforts“:

[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.


ICBC Hit and Run Injury Claims and Intentional Torts

March 19th, 2010

When a person is injured in a hit and run accident where the identity of the at fault motorist is unknown ICBC can be sued directly for compensation provided that s. 24 of the Insurance (Vehicle) Act is complied with.

When dealing with insurance coverage issues, there often are exclusions in coverage for claims involving intentional torts.  (at the risk of oversimplification and intentional tort is an act which caused harm through an intentional deed as opposed to a negligence claim which deals with harm caused through carelessness).  Does this insurance exclusion apply to ICBC claims under section 24?  Reasons for judgement were released today by the BC Court of Appeal addressing this issue.

In today’s case (Hannah v. John Doe) the Plaintiff was injured in a purse-snatching incident.  As she was walking in a parking lot a vehicle drove by, the passenger in the vehicle ‘reached out and grabbed her purse strap and, as the van accelerated away, the plaintiff was thrown backward and dragged until her purse ripped‘.

The assailants remained unknown and the Plaintiff sued ICBC directly for her injuries under section 24.  ICBC sought to dismiss the lawsuit arguing that section 24 does not cover claims for intentional torts.  ICBC’s motion was dismissed at trial.  (click here to read my article summarizing the trial judgement) ICBC appealed advancing many of the same arguments rejected by the trial judge.

The BC High Court dismissed the appeal and in doing so provided the below reasons making it clear that s. 24 can be triggered in an intentional tort claim:

[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.

[25] While Citadel disapproved the reasoning in Chan in relation to the causation issue, Citadel supports the reasoning and conclusion in Chan that damage caused by an intentional or criminal act is not for that reason excluded from coverage.  That is apparent from what Binnie J. said at paras. 17-18 of Citadel:

[17]      The appellant insurer seeks to restrict coverage in arguing, for example, that in this case, indemnification should be denied because Farmer used “the vehicle for the purpose of getting weapons to the scene of a crime”, and “it is that kind of situation that should not fall . . . within the meaning of ordinary and well known activities” (transcript, at p. 18).

[18]      I am unable to agree.  Firstly, even if transporting rocks across the countryside had been the effective cause of the Vytlingams’ injuries, which it wasn’t, transportation is what motor vehicles are for.  The fact that transportation in this case was for a criminal purpose no more excludes coverage than the fact that Farmer may have been driving his vehicle on the night in question while impaired.  Innocent drivers (or pedestrians) should not be denied indemnity if struck by (to give a further example) a getaway car “transporting” bank robbers from the crime scene.  In all these cases, the tortfeasor, regardless of his or her subjective reasons for climbing into the car, is at fault as a motorist.

[26] The same point was reiterated by Binnie J. at para. 23:

Thirdly, to be quite explicit, I would reject the position … that … coverage can be denied if the tortfeasor is engaging (as here) in criminal activity.  This is not so.  The insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example.

For the foregoing reasons, I would not accede to ICBC’s argument that s. 24(1) of the Act is restricted to cases in which the cause of action is based in negligence.


Pedestrian Found Partially At Fault for Injuries for Failing to Use Sidewalk

March 17th, 2010

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with the duty of Pedestrians to use a sidewalk or crosswalk where one is available.

In today’s case (Larsen v. Doe) the pedestrian Plaintiff was struck by a vehicle while “walking in a T intersection normally used by vehicles“.  There was no marked pedestrian walkway where the collision occurred however there was a sidewalk nearby and “if the pedestrian had taken the sidewalk, her path would cross the street within the unmarked crosswalk much closer to the stop sign from which the vehicle departed“.  The collision was a hit and run and the identity of the driver/owner of the vehicle remained unknown at the time of trial.

As permitted by section 24 of the Insurance (Vehicle) Act the Plaintiff sued ICBC directly as a nominal defendant seeking compensation for her injuries.  ICBC, in the place of the unknown motorist, was found liable for the collision.  ICBC argued that the Plaintiff should be found partially at fault for not utilizing the nearby sidewalk.  Mr. Justice Josephson agreed with this submission.  In finding the plaintiff 25% at fault for the collision Mr. Justice Josephson provided the following analysis:

[12]         The plaintiff argues that, as she was walking along the highway, she had either entered the intersection or was approaching so closely that she constituted an immediate hazard to the defendant driver. Consequently, the defendant was obligated to yield the right of way to the plaintiff and, had she done so, could have proceeded after the plaintiff cleared the intersection.

[13]         While ss. 175 and 119, taken together, give through traffic the right of way, s. 175 does not grant to pedestrians travelling along a highway the right to proceed on the roadway itself where a sidewalk or a crosswalk is available. No authorities have found otherwise.

[14]         Furthermore, the plaintiff’s submission that s. 175 grants pedestrians the right of way in travelling along a roadway runs contrary to s. 182(1) of the MVA which provides that, where there is a sidewalk, a pedestrian should avail herself of it.

[15] Therefore, I find that the plaintiff was in breach of her statutory duties under s. 180 and/or s. 182(1) of the MVA and cannot invoke s. 175 in such a way as to override those duties…

[25]         In the case at bar, I find that the plaintiff’s breach of her statutory duties under the MVA did contribute to the accident and, consequently, the injuries she sustained. Because she chose to walk along the roadway behind the diagonal parking stalls, the plaintiff made herself less visible to the defendant than had she chosen to cross the intersection within the unmarked crosswalk according to her duties under the MVA. While the plaintiff believed the defendant driver saw her and was waiting for her to cross the intersection, she should have reasonably perceived the danger the defendant’s car presented given the minimal lighting in the intersection and given that a driver would not expect pedestrians to emerge into the intersection from the other side of the parking stalls when there was a sidewalk and crosswalk available to her.

[26]          I conclude that liability should be apportioned 75% to the driver and 25% to the plaintiff.

This case is also worth reviewing for the Court’s discussion of a Plaintiff’s duties to ascertain the identify of the Driver in Hit and Run Claims.  In order to successfully sue ICBC under s. 24 of the Insurance Vehicle Act a Plaintiff needs to make “all reasonable efforts…to ascertain the identity of the unknown driver“.  Here ICBC argued that the Plaintiff, despite being hit unexpectedly and having a compound wrist fracture, unreasonably failed to obtain identifying information with respect to the offending vehicle.  The Court disagreed with this submission finding that the Plaintiff was in shock and that her failure to identify the motorist was not unreasonable, specifically the court found as follows:

[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”.


ICBC and Hit and Run "Accidents"

August 21st, 2008

(Note: the case discussed in the below article was upheld by the BC Court of Appeal on March 19, 2010)

What if you are injured in British Columbia in a Hit and Run motor vehicle accident where you could not ascertain the name of the driver / owner of the vehicle that injured you?  Can you claim compensation?  Often times yes!

Section 24 of the Insurance (Vehicle) Act permits victims of BC Hit and Run accidents to sue ICBC directly for such accidents in certain circumstances.

Section 24 has some restrictions and limitations in it and its imporatant to read this section and BC court cases interpretting it carefully to determine if the victim of a hit and run can seek money from ICBC.

What if the person who committed the hit and run was also committing another crime at the time such as fleeing from the scene of a robbery?  Can comepensation be sought in such circumstances?  Reasons for judgement were released today that seem to say yes.

In this case the Plaintiff was returning her shopping cart at the Real Canadian Supestore when a blue van drove by her and the passenger reached out and snatched her purse from her shoulder.  During this crime the Plaintiff ‘went flying backwards down the parking lot (and) hit her head on the pavement”.  She was injured and sued ICBC pursuant to section 24.

ICBC brought an applicaiton to dismiss the lawsuit claiming that s. 24 does not apply in circumstances where the unknown motorist is commiting a crime in the course of the hit and run.  The ICBC lawyer argued that “section 24…confines its amvit to motor vehicle accidents and that the present case involves, not an accident arising from negligence, but rather an intentional act amounting to a civil assault and battery and conversion, or in terms of the criminal law, an assault and theft or a robbery“.

In other words, the ICBC lawyer argued that the Plaintiff was not injured through the negligenct use of a motor vehicle rather because of an intentional criminal act.

The Honourable Mr. Justice Cullen dismissed the ICBC applicaiton and permitted the Plaintiff to carry on her lawsuit against ICBC as nominal defendant.   Mr. Justice Cullen concluded that there is nothing in section 24 that prevents a person from suing ICBC when the unidentified motorist was committing an intentional tort when injuring the Plaintiff.

For your convenience I reproduce the most compelling findings below:

[36] In the case at bar, it is clear that at all material times, the tortfeasor’s motor vehicle was being used as a motor vehicle.  That it was being used to facilitate the commission of a criminal offense no more negates its use as a motor vehicle than if it were being driven to or from the scene of a bank robbery, or as a vehicle to transport a kidnap victim.  In my view, a finding in the present case that the motor vehicle was being used as a motor vehicle, notwithstanding that it was used in the commission of the offense of robbery or the civil tort of assault, is consistent with the reasoning of Binnie J. in the Citadel case.  It is clear from Binnie J.’s reasoning that the fact a motor vehicle is used to facilitate or effect a criminal purpose does not render its use as anything other than as a motor vehicle.

[37] The question that arises in the case at bar is whether the use of the motor vehicle was fortuitous or incidental to the act that caused the injury or whether it was integral to it.

[38] In my view, in the case at bar, unlike the cases of Citadel, Chan, Collier or Lumbermens, the act causing the alleged injury to the plaintiff was directly caused, and not isolated from, or severed from the use of a vehicle as a vehicle.  Here, the uncontradicted evidence is that, as the passenger in the vehicle grabbed the plaintiff’s purse, which she was carrying on her shoulder, the driver accelerated the vehicle, and it was that acceleration in combination with the passenger’s grip on the plaintiff’s purse that caused her to fall to the ground and be dragged by the vehicle as it accelerated away.  For the present case to be analogous to the circumstances in Chan, in which Binnie J. found a severance between the tortfeasor’s use or operation of his motor vehicle and the act causing the injury, the tortfeasor’s motor vehicle in the present case would have had to be stationary and not implicated in the action by which the plaintiff was thrown to the ground and injured.  In my view, there is a clear causal link between the use of a motor vehicle as a motor vehicle in the present case, and the injuries alleged by the plaintiff.

[39] In my view, this case is distinguishable from the facts in Co-operative Fire, supra, relied on by the applicant.  In that case the court was confronted with the need to construe the effects of an exclusion clause in a policy of insurance excluding coverage for a “bodily injury or damage caused intentionally by or at the direction of an insured”, and as well s. 2 of the Insurance Act, 1968 of New Brunswick, upon the circumstances at issue.  Section 2 of the Insurance Act reads as follows:

… a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity … except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage ….

[40] Thus the court in Co-operative Fire was dealing with whether an act by the insured was governed by a term in the contract of insurance excluding liability for intentional acts.  The court found that although the consequences were unintended in that case, the unlawful act causing them was not, and hence it (the act) fell within the scope of the exclusion clause.

[41] In the present case, there is no exclusion clause.  It is true, as the applicant submits, that in s. 24 the occurrence giving rise to the bodily injury or death that is the subject of a claim is referred to as an accident in various subsections.  However, in those cases that the applicant relies on as support for the proposition that the word “accident” is to be given “its ordinary and popular meaning” and means “any unlooked for mishap or occurrence”, the operative wording is somewhat different from that in the case at bar.  In Canadian Indemnity, supra, the relevant term being applied was as follows:

The Coverage given by this policy applies only to accidents or occurrences arising out of and incidental to the business operations of the Insured and originating during the policy period.

[see Straits Towing Ltd. v. Washington Iron Works¸ [1970] 74 W.W.R. 228, 1970 CarswellBC 157 (er) (B.C.S.C.) at 230].

[42] In Mutual of Omaha, supra, the applicable term under consideration was:

“Injuries” means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained….

[43] Thus, in both cases, unlike in the present case, the policies of insurance contained a clause that expressly limited coverage to damage or injuries caused by accidents.

[44] As Finch J.A. noted in Chan, supra, however, s. 24 does not refer to bodily injury or death arising from the negligent or accidental 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 the motor vehicle”.  It was Finch J.A.’s conclusion in Chan that the injury arose out of the use or operation of the motor vehicle (that is, his conclusion with respect to causation) that attracted disagreement from the Supreme Court of Canada in Citadel, not his conclusion that intentional acts fall within the scope of s. 24.

[45] Indeed, in Citadel, Binnie J., in giving examples of what would attract coverage under s. 24, did reference actions (in exploring the purpose test) that, under the reasoning in Saindon, would attract the characterization of intentional.  In particular, he gave an example of a motorist intentionally trying to jump his vehicle over the interstate highway at high speed, “Evel Knievel style”, and crashing down on the plaintiff’s vehicle.  There, he held, “…there is no doubt that [the tortfeasor] would have been driving the vehicle and driving meets the Amos purpose test.”

[46] Justice Binnie observed that the relevant Ontario legislation, which is similar to s. 24, “is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle”.  Binnie J. quite explicitly rejected the argument that “coverage can be denied if the tortfeasor is engaging (as here) in criminal activity”.  He went on to note “[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example”.

[47] In my view, the reasoning of Binnie J. in Citadel is consistent with that of Finch J.A. in Chan, so far as it relates to the extent s. 24 covers intentional criminal acts.  The case at bar does not involve a tortfeasor seeking coverage for his intentional criminal actions in the face of either policy considerations or an express statutory or contractual exclusion.  Rather, it involves an insured seeking coverage for an injury arising from the use or operation of a motor vehicle, which is the foundation for s. 24.  The use of the word “accident” to describe the occurrence giving rise to the injury does not, in my view, modify the scope of s. 24 to exclude intentional criminal acts of which the use or operation of a motor vehicle forms an integral part.  In any event, in the present case, while an inference can be drawn that the driver of the motor vehicle was complicit in his passenger’s unlawful act, the evidence does not go so far as to preclude a finding that the use or operation of the motor vehicle in the course of those events was, as well, negligent.  There was no evidence that the tortfeasor intended to pull over or injure the plaintiff, only that he intended to facilitate a theft that involved some indirect application of force to the plaintiff.  The ultimate cause of the plaintiff’s alleged injuries was incidental to the tortfeasor’s purpose and it could not be said to be inconsistent with the meaning of the word “accident” as it is used in s. 24.

[48] I therefore dismiss the defendant’s application for an order dismissing the plaintiff’s action, and order costs to the plaintiff.


ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

July 3rd, 2008

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.

The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.

The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’

The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.

As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.

No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.

The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.

The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:

[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.

The court awarded $80,000 for ‘general damages’ (pain and suffering).

The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.

This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.

In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.

Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist

This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.

The court summarized the law of ‘failure to mitigate’ as follows:

[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).

The court rejected ICBC’s failure to mitigate arguments.

This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.