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


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.

advertising, bc injury law, hit and run, Lort v. Kwan, Mr. Justice Armstrong, section 24 Insurance (Vehicle) Act

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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