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Tag: hit and run accidents

Pedestrian Found Partially At Fault for Injuries for Failing to Use Sidewalk

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”.

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.