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