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Tag: filsinger v. icbc

ICBC Injury Claims and Hit and Run Accidents

Imagine being the victim of a hit and run accident in British Columbia and sustaining serious injuries.  You try your best to figure out the identity of the offending motorist but you get nowhere.  Your injuries significantly impact your day to day life and your medical expenses and wage loss are sky-rocketing.  Without knowing the identity of the other driver you have no one to sue for damages, so are you out of luck?  Not always.
In certain circumstances ICBC can be sued directly in the place of an unidentified driver.   Section 24 of the Insurance (Vehicle) Act permits ICBC to be named as a nominal defendant in certain hit and run accidents.  
Section 24 also has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.
Reasons for judgement were released today by the BC Supreme Court (Filsinger v. ICBC) where a Plaintiff who was the victim of a hit and run was awarded over $150,000 in damages as a result of serious injuries.  In doing so the court considered the duty to make ‘reasonable efforts’ to identify the offending motorist and summarized the law and the facts of the case as follows:

[17]            The defendant challenges whether the plaintiff took reasonable steps pursuant to s. 24(5) of the Insurance (Vehicle) Act to identify the owner and operator of the hit-and–run vehicle.

[18]            The defendant submits that the plaintiff decided not to co-operate and did not take the opportunity to investigate and identify the driver.  The defendant refers to Tessier v. Vancouver(City) (2002), 48 C.C.L.I. (3d) 273 (B.C.S.C.).

[19]            The leading case in the area is Leggett v. ICBC (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.), leave to appeal to S.C.C. ref’d (1993), 14 C.C.L.I. (2d) 100, where the British Columbia Court of Appeal made it clear that ICBC’s exposure to liability is limited to claims brought by those who could not ascertain the identify of the parties responsible, and not to parties who had the opportunity to identify the offending vehicle but chose not to do so.  In Leggett, unlike the case at bar, the plaintiff had spoken to the unidentified driver who had stopped at the scene of the accident.  However, the plaintiff in Leggett chose not to obtain particulars of the unidentified party, believing at the time that he had not suffered any injury.  The court found that because the plaintiff failed to make all reasonable efforts to determine the identity of the persons responsible, he could have no claim against the insurer.  

[20]            In Daniels v. Insurance Corporation of British Columbia (1985), 14 C.C.L.I. 172 (B.C.S.C.), the plaintiff was injured while riding his bicycle.  He testified that he had been riding at night with red reflective devices, and that he recalled hearing an automobile approach, but had no further memory until he awoke in hospital.  The defendant submitted in that case that the plaintiff had failed to establish that an unidentified motorist had been negligent in the collision.  The court held, at 175:

I find that a citizen having been involved in an accident, a citizen not trained in investigative procedures (if he reports the accident), he can properly expect the police authorities to carry out the necessary, reasonable investigation contemplated by Section 23 of the Insurance Act.  Therefore, I find that the Act has been complied with by this particular plaintiff and the action is properly brought.

[21]            Other cases of interest cited to me were Hocaluk v. Insurance Corporation of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360, Ball v. Insurance Corporation of British Columbia (1996), 37 C.C.L.I. (2d) 246 (B.C.S.C.), and Slezak v. Insurance Corporation of British Columbia, 2003 BCSC 1679, 5 C.C.L.I. (4th) 230.

[22]            While I would not describe the plaintiff’s efforts to locate the other driver as exceptional, on a balance of probabilities I find that he met the legal onus upon him to make a reasonable effort to find the driver.  He contacted his friend in the RCMP immediately, he met with the police the same evening and gave a statement and handed over a piece of evidence.  He published two newspaper advertisements many months after the fact, probably on the advice of his lawyer.  I note, however, that in his interviews with ICBC after the accident, he was not told that he had to do anything to find the other driver. 

If you are the victim of a hit and run collision in British Columbia and sustain injuries you should be familiar with Section 24 of the Insurance Vehicle Act and the limitations on ICBC’s liability as set out in this legislation.