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More on ICBC Claims and Hit and Run Lawsuits: The "Reasonable Efforts" Requirement

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.

More on ICBC Claims and Hit and Run Lawsuits: The Notice Requirement

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.

More on BC Hit and Run Accidents

I’ve previously posted that victims of Hit and Run accidents in BC can make a claim directly against ICBC in tort in certain circumstnaces under Section 24 of the Insurance (Vehicle) Act
Section 24 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 addressing a victim’s obligations to make ‘reasonable efforts’ to identify the driver/owner of offending vehicles in s. 24 ICBC hit and run claims.
In today’s case (Fan v. ICBC) the Plaintiff was injured in a BC Car Crash.  She failed to identify the at fault motorist and brough a claim direclty against ICBC for her pain and suffering and other losses in tort. The Plaintiff’s case was dismissed for failing to take reasonable efforts to identify the at fault motorist.  In dismissing the claim Mr. Justice Curtis explained the duty of motorists involved in s. 24 hit and run claims to make ‘reasonalbe efforts’ as follows:

[20] The British Columbia Court of Appeal considered what was then s. 23 of the Insurance (Motor Vehicle) Act in the case of Leggett v. Insurance Corporation of British Columbia, [1992] B.C.J. No. 2048.  In that case, a man whose car was rear ended spoke to the driver who hit him and both agreed each would look after his own damage.  The man did not bother to obtain the name of the driver or owner of the vehicle because he did not plan to make any claim.  He later sought to recover damages for injury from the Insurance Corporation of British Columbia.

[21] Taylor J.A. in delivering the Reasons of the Court of Appeal, dismissing the claim, held at paras. 7 – 13 of the Reasons:

Here the trial judge was of the view that Mr. Leggett’s ignorance of his injury until the following day made it reasonable that he would not until then make any effort to obtain identification particulars. The judge found that the efforts which Mr. Leggett thereafter made to trace the owner and driver were “reasonable” for the purpose of Section 23(5).

I find myself unable, with respect, entirely to agree with the approach taken by the trial judge.

The section provides a means by which a person who has suffered injury or property damage in a motor vehicle accident may obtain compensation from the government insurer even though the driver said to be at fault, and the owner of the vehicle which was being driven by that person, are insured in another jurisdiction or not insured at all, even though the corporation will, in any event, be unable to look to the other driver for assistance in resisting the claim, and even though the corporation will be unable to obtain reimbursement in the event the other driver is uninsured or there has been a policy breach, or to obtain contribution by way of increased premiums through forfeiture of the other party’s ‘safe driving’ discount. As the trial judge recognized, protection against fraudulent claims is only one of the purposes of the requirement that the claimant show inability to identify the other driver and owner as a condition of being able to claim under the section. In my view the overall purpose of the section is to limit the exposure of the corporation to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be their own interests, and which, by virtue of the section, become the interests of the corporation.

The corporation’s exposure under the section is limited to claims brought by those who could not have ascertained the identity of the parties responsible. It does not, in my view, extend to claims by those who have chosen not to do so.

I do not think the words “not ascertainable” should be strictly interpreted, so as to mean “could not possibly have been ascertained”. I think they are to be interpreted with reference to subsection (5) so as to mean “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them”. Where a person knows that he or she has been involved in a motor vehicle accident, but refrains even from recording the licence number of the other vehicle, when that number is visible and the claimant could, had he or she wished, reasonably have recorded it, such a claimant must, in my view, find it particularly difficult, and probably impossible, to establish that he or she made all reasonable efforts to discover the identity of the owner and driver of that vehicle for the purposes of the section.

The test seems to me to be subjective in the sense that the claimant must know that the vehicle has been in an accident and must have been in such a position and condition that it would be reasonable for the claimant to discover and record the appropriate information. But the claimant cannot be heard to say: “I acted reasonably in not taking the trouble to find out”.

I think that in essence the test is that which was formulated by Hinkson, L.J.S.C. (as he then was) in King et al v. A.G. (B.C.) (1968), 66 W.W.R. 223 (B.C.S.C.), followingRossiter v. Chaisson, [1950] O.W.N. 265 (Ont. H.C.). In the King case, which was decided under the then Section 108 of the Motor Vehicle Act, R.S.B.C. 1960 Chapter 253, the judge (at p. 226) held the appropriate test to be whether the claimants had “pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances” had there been no such provision. In order to accommodate the current statutory requirement in the present context, I would add, after the words “would have done in like circumstances”, the words “if the claimant intended to pursue any right of action which he or she might have arising out of the accident”.

[22] In the case of Johal v. Insurance Corporation of British Columbia and John Doe, Mr. Johal was struck by a car while walking across a street.  The driver got out of his vehicle and asked Mr. Johal how he was, but Mr. Johal, having been traumatized by the collision did not think to ask for the driver’s identity.  When the ambulance arrived, he said he felt fine and took a taxi.  The next morning his left knee was swollen and he realized he had been hurt.  Two days after the accident, he telephoned ICBC and the police.  The police told him he had to report in person which he did 12 days after the collision.  About six weeks after the accident, he advertised for witnesses in the information wanted section of a small neighbourhood paper.

[23] Esson C.J.C. as he then was, in dismissing Mr. Johal’s claims ruled as follows:

… I do not think that the plaintiff’s action is precluded by his failure to do more than he did on the Saturday evening. Although he may not have been in “shock” in a technical sense, it is understandable that he was in some state of confusion and, bearing in mind that he then believed he had not been injured, I would not hold against him his failure to get information at that time.

But, by the next morning, the plaintiff was aware that he was suffering from an injury. He did nothing until the following day. His conduct in telephoning I.C.B.C. that day and giving a full written report within days thereafter was reasonable enough, but only in a most indirect way can it be described as an effort to ascertain the identity of the owner or driver. A timely report to the police would have been more in point; to defer that step for a further ten days was less than reasonable. The advertisement in the personal column was so belated and in an organ of such limited circulation as not to be reasonable. There is no evidence of any attempt to track down the ambulance crew or of any effort to find witnesses at the location. The test which the plaintiff must meet is to satisfy the court that he made “all reasonable efforts”. In a case, such as this, where there is no suggestion of fraud, I would regard “reasonable” as the fundamental element of the test. It should not be made so exacting that it cannot be met. But, on the facts proved here, I cannot be satisfied that the plaintiff has met the test.

[24] The wording of the section itself and previous decisions clearly establish that the onus is on Ms. Fan to establish that she made all reasonable efforts to establish the identity of the owner and driver.  (Nelson v. Insurance Corporation of British Columbia, 2003 BCSC 121, paras. 17 and 18):

On the evidence before me, I am not satisfied that “all reasonable efforts have been made … to ascertain the identity of the unknown owner and driver …”

[25] Firstly, Ms. Fan’s evidence about what happened at the scene is contradictory.  Her trial evidence was that another vehicle parked between her and the one that struck her which combined with the dark, prevented her from seeing the license plate while she was walking toward it.  Previous statements she gave suggest there was only one vehicle.  At trial, she testified she spoke to the second man and perhaps the driver did not speak English.  In her statement to ICBC three weeks after the accident, she said, “The other driver said that his car is ok ….  He asked  me what happened to me ….”  Ms. Fan’s evidence is not sufficiently reliable for me to determine what actually occurred and on that basis to decide whether her actions at the scene were reasonable or not.

[26] Secondly, even if Ms. Fan’s attempts at the scene, such as they were, were reasonable, her attempts to identify the owner and driver thereafter were not.  When she spoke to the police at the time she mistakenly believed the accident took place on United Boulevard.  When she spoke to the police, they told her to report the matter to ICBC.  It was clear at that point the police were not going to be investigating who had hit her.  Making a sign to post a month later then not putting it out because it was raining was no effort at all.  Nor was placing advertisements in theVancouver Sun and Province three months later, a genuine or reasonable effort.  Driving around looking for the car 15 minutes at a time for a couple of weeks following the collision, assuming that was done is in the absence of other reasonable steps is not sufficient.

[27] Patricia Fan has failed to prove that she has complied with the requirements of s. 24(5) of the Insurance (Vehicle) Act and is therefore not entitled to claim damages against the Insurance Corporation of British Columbia directly under s. 24.  The claim against the Insurance Corporation of British Columbia is dismissed.