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 ‘Morris v. Doe’

ICBC Under "No Obligation" To Advise You of Your Legal Rights

August 5th, 2011

As previously discussed ICBC adjusters often operate in a legally permissible conflict of interest.  When dealing with ICBC it is important to know that “your” adjuster has no obligation to advise you of your legal rights regarding a claim for compensation against the at fault motorist.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.

In this week’s case (Morris v. Doe) the Plaintiff was injured in a hit and run collision.  She sued ICBC under s. 24 of the Insurance (Vehicle) Act although the claim was dismissed at trial with Madam Justice Ker finding that the Plaintiff failed to make all reasonable efforts to identify the at-fault motorist.

The Plaintiff was ordered to pay ICBC costs following trial.  The Plaintiff opposed arguing this would “financially cripple” her and that such a result would be unfair because ICBC failed to advise the Plaintiff of the steps she needs to take to make a successful claim for compensation.  Madam Justice Ker rejected this argument finding that the law imposes no duty on ICBC adjusters to do so.  In upholding the costs award against the Plaintiff the Court provided the following reasons:

[8] During his oral submissions, counsel for the plaintiff argued that costs ought not to be awarded against the plaintiff as the defendant, the Insurance Corporation of British Columbia (“ICBC”), through its adjusters ought to have advised the plaintiff of the importance of immediately obtaining legal advice on the steps she needed to take to satisfy the unidentified motorist provisions of the Act.  Counsel appears to argue that it is this failure and circumstance connected with the case that renders it manifestly unfair to award costs against the plaintiff in this case, citing Currie v. Thomas Estate (1985), 19 D.L.R. (4th) 594 (B.C.C.A.) at para. 47 and the reference therein to the speech of Viscount Cave in Donald Campbell & Co. v. Pollack, [1927] A.C. 732 (H.L).

[9] No statutory authority or case authority was provided to support the proposition that ICBC through its employees has a duty to provide a potential plaintiff with a warning that it is in their interests to obtain legal advice.  Indeed, counsel recognized and seemed to suggest that the law, although not there yet, ought to be moving in that direction. ..

[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.

[52] I do not understand the jurisprudence or the governing statutory provisions to place any sort of positive obligation on ICBC through its employees to either advise a plaintiff of the steps they must take to ascertain an unknown driver’s identity or of the need to obtain independent legal advice on this provision.

[53] I cannot accede to counsel’s suggestion that ICBC or an insurer has a positive obligation to advise an insured of the need to obtain legal advice.  To do so would fundamentally change the nature of the contractual relationship between the insurer and insured and place the insurer in a position of quasi-authority requiring it to provide an element of legal advice, something adjusters and claims managers may not be well suited to do and may create a host of unanticipated and unforeseen consequences.

[54] While the comments of Barrow J. in Tessier are compelling as to the fairness that at least notifying a plaintiff of the provisions of the Act would appear to create, the fact of the matter is that there is no statutory authority mandating that ICBC advise or alert a potential plaintiff of the provisions of s. 24(5) of the Act.

[55] Moreover, the jurisprudence since 2003, and most recently re-stated in Wah Fai Plumbing, establishes that denying a successful litigant its costs based on pre-litigation conduct or for reasons that appear to impose quasi-liability on the successful party and sanction non-actionable conduct is not an appropriate or principled application of the costs rules.

[56] I must say again that, in this case, I have a great deal of sympathy for the unsuccessful plaintiff, particularly in light of ICBC’s failure to set her straight at the outset when it was apparent she did not understand the process.  However, by the time the statement of defence was issued in October 2007, it would have been clear to the plaintiff and her counsel that her case was in peril, or definitely not nearly as strong as initially believed.

If all of this seems unfair you can click here to read my views regarding a solution to this conflict of interest.


ICBC Hit and Run Injury Claims: A Detailed Discussion of the "Reasonable Efforts" Obligation

March 3rd, 2011

I’ve written many times about ICBC Injury Claims involving unidentified drivers.  In short, individuals injured by unidentified motorists can sue ICBC directly for compensation but there are statutory requirements that need to be complied with to succeed with such a claim.  The most litigated issue in these claims is whether the Plaintiff took “all reasonable efforts” to identify the at fault motorist as required by section 24(5) of the Insurance (Vehicle) Act.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this obligation and usefully setting out many of the legal principles behind what amounts to a ‘reasonable effort’.

In today’s case (Morris v. Doe) the Plaintiff was injured in a 2006 collision.  She was a passenger in her husband’s vehicle.  They were stopped at a red light and were rear-ended by an unidentified motorist.  The force of the crash caused the Plaintiff’s vehicle to collide with a stationary vehicle in front of them.  Following the crash the Plaintiff’s husband exited the vehicle and looked towards the at fault vehicle.  He motioned for the rear motorist “to pull his vehicle off to the side of the road into (a) parking lot”.  Following this the Plaintiff and front motorist pulled into the parking lot and the rear motorist drove away.

The Plaintiff sued ICBC for damages under section 24.  The case was dismissed with Madam Justice Ker finding that the Plaintiff failed to make all reasonable efforts to identify the at-fault motorist.  Prior to reaching this conclusion the Court provided the following useful summary of past cases addressing ‘reasonable efforts’ in ICBC hit and run injury claims:

[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.