ICBC Law

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.

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.

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.

(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.

Generally speaking a person is not allowed to call evidence of ‘prior consistent statements‘ at trial.  The reason is because this offends the rule against hearsay and is an improper attempt to bolster witness credibility.  There is a powerful exception to this general rule, however, and this relates to allegations that a witness is fabricating their court-room evidence.   This exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry, in a personal injury lawsuit arising from a hit and run accident.

As I’ve previously written, injury victims have the right to sue ICBC for damages when involved in hit and run accidents in BC.  These are commonly referred to as section 24 claims because injury victims involved in unidentified motorist claims gain the right to sue ICBC directly through section 24 of the Insurance (Vehicle) Act.

ICBC often defends section 24 claims by denying the existence of the unidentified motorist and blaming the Plaintiff for their own injuries.  When this happens the ‘recent fabrication‘ exception is triggered in effect opening the floodgates for corroborating evidence at trial.

In today’s case (Jennings v. Doe) the Plaintiff was injured when a tractor trailer cut him off and forced his vehicle off the road.  The Driver of the tractor-trailer left the scene and the Plaintiff could not identify him.  The Plaintiff sued ICBC directly for his injuries.  ICBC defended the claim denying the existence of the tractor trailer.  The Plaintiff attempted to call evidence of prior consistent statements corroborating his courtroom evidence.  ICBC objected arguing this was not permissible.  Madam Justice Baker disagreed and allowed the evidence in.  In doing so the Court gave the following very useful reasons:

[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.

When advancing a hit and run ICBC claim it is good practice to review hospital, ambulance, police and other records to look for ‘prior consistent statements’ in the event ICBC alleges recent fabrication at trial.

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.

As I’ve previously written, section 24 of the BC Insurance (Vehicle) Act gives the victims of Hit and Run accidents the right to sue ICBC directly in certain circumstances.  There are exceptions and limitations to this right and one such limitation is that a Plaintiff has to give proper notice to ICBC that they intend to claim under section 24 otherwise their right to sue ICBC can be taken away.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In today’s case (Mudrie v. Grove) the Plaintiff was involved in a 2007 rear-end collision.  After the crash the Plaintiff and the driver of the other vehicle exchanged their respective information.  The other driver identified himself as “Donald Grove“.   About a year after the crash the Plaintiff conducted a “pre-court vehicle plate search“.  The search gave rise to information which suggested that “Grove” may have provided inaccurate information about his identity.

The Plaintiff started a lawsuit naming not only Donald Grove but also ICBC as a Defendant under section 24 of the Insurance (Vehicle) Act.  ICBC was named in the event that the identify of the true driver was unknown.  ICBC brought a motion to dismiss the lawsuit against them arguing that in order to sue under section 24 a Plaintiff must provide written notice to ICBC within 6 months after the accident and that the Plaintiff failed to comply with this requirement.  Mr. Justice Saunders agreed and dismissed the lawsyit against ICBC.  In doing so the Court noted as follows:

[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. The parties are at liberty to make written submissions as to costs.

Further to my previous post on this topic, historic reasons for judgement were released today on the BC Supreme Court website demonstrating that circumstantial evidence can be enough for a Plaintiff to win their ICBC injury claim.

In today’s case (Tweedie v. ICBC) the Plaintiff was injured while out for a morning jog in 1999.  There were no witnesses to the incident that injured the Plaintiff.  The result of the Plaintiff’s trauma was such that she could not remember how she was injured.   In her dazed state of mind she initially thought she tripped while jogging however, on learning about how serious her injuries were (these included several broken ribs, multiple fractured bones in her foot and a fractured fibula) the Plaintiff assumed she must have been struck by a vehicle.

The Plaintiff sued ICBC directly for compensation under s. 24 of the Insurance (Vehicle) Act (the section dealing with unidentified motorist claims).  ICBC denied liability arguing there was no proof that a motor vehicle collision caused the injuries and that even if the injuries were caused by a vehicle there was no proof that the driver of the vehicle was negligent.  Mr. Justice Wilson disagreed and found that ICBC is liable for the Plaintiff’s injuries as a result of the collision.  In reaching this verdict the Court relied exclusively on circumstantial evidence.  Mr. Justice Wilson provide the following useful summary of the law regarding finding fault in an injury claim based wholly on circumstantial evidence:

[3]           The principles are well-established for assessing liability where the evidence is circumstantial, but it is still useful to refer to them.  In the decision of the Supreme Court of Canada in Montreal Tramways Company v. Leveille, [1933] S.C.R. 456, the Court considered the claim of injury, a deformity to an unborn child alleged to have been brought about as a result of the child’s mother falling while on the tramway.  At p. 466, Mr. Justice Lamont considered the issue of whether there was evidence on which the jury could reasonably find the existence of a causal relationship between the accident to the mother and the deformity of the child’s feet, and said this:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn inRichard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact.  The applicant must prove his case.  This does not mean that he must demonstrate his case.  If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon.  Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

There was undoubtedly evidence to go to the jury that the mother’s accident was caused by the fault of the Company, and the jury’s finding on that point cannot be disturbed.  That such fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence.  It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury.  These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn.  It is not sufficient that the evidence affords material for a conjecture that the child’s deformity may have been due to the consequences

of the mother’s accident.  It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.

At p. 469, he referred to the decision of the House of Lords in Jones v. G.W. Rly. Co. (1930), 47 T.L.R. 39, in which the Court had to consider whether there was evidence on which a jury could properly find negligence on the part of the defendant’s servants which caused or contributed to the death of a husband of the first plaintiff.  He quoted from the decision of Lord MacMillan:

The dividing line between conjecture and inference is often a very difficult one to draw.  A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess.  An inference in the legal sense, on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof.  The attribution of an occurrence to a cause is, I take it, always a matter of inference.  The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability.  Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.

And then, on p. 474, after considering the difference in the jurisprudence in Quebec under the Civil Code and in the rest of Canada under the common law, he said:

… under either the French or English jurisprudence, the presumptions or inferences to be receivable as proof must be a deduction from established facts which produce a reasonable conviction in the mind that the allegation of which proof is required is probably true.  That conviction may vary in degree between “practical certainty” and “reasonable probability”….

The question, however, is whether he instructed the jury sufficiently?  In a case such as this it is, in my opinion, essential that the judge should instruct the jury that the presumption which they are entitled to admit as proof must not be a mere guess on their part, but must be a reasonable deduction from such facts as they shall find to be established by the evidence.

That is the standard which must be met here, where I am the trier of fact.

[4]           In a decision of the British Columbia Court of Appeal, Plett v. Insurance Corporation of British Columbia (1987), 12 B.C.L.R. (2d) 336, under the heading “Circumstantial evidence”, at p. 341, Mr. Justice Wallace said this:

In cases such as this, in which the evidence is circumstantial, inferences of negligence cannot be drawn unless there are positive proven facts from which such inferences can be made.

In Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152, [1939] All E.R. 722 (H.L.) a case concerning an industrial accident to a workman, Lord Wright stated at pp. 169-170 what is, in my respectful opinion, the correct approach to a case which turns solely on circumstantial evidence:

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed.  The Court therefore is left to inference or circumstantial evidence.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

In the present case there are, I think, certain known facts which enable some inferences to be drawn.  Beyond that point the method of inference stops and what is suggested is conjecture.  It is not necessary to recapitulate the facts which have been fully stated by my noble and learned friend, Lord Atkin.  I shall be content to state what I regard as proved by the method of inference, and reject what appears to be made to be a matter merely of conjecture.

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.

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”.