BC Court of Appeal Rejects ICBC's Argument for "Expanded" Hit and Run Victim Obligations
Reasons for judgement were released this week by the BC Court of Appeal rejecting ICBC’s arguments trying to impose “expanded” requirements for hit and run victims to be compensated for their injuries.
By way of background individuals injured by unidentified motorists can sue ICBC directly for compensation but there are statutory requirements that need to be complied with to succeed with such a claim. The most litigated issue in these claims is whether the Plaintiff took “all reasonable efforts” to identify the at fault motorist as required by section 24(5) of the Insurance (Vehicle) Act.
In this week’s case (Nicholls v. ICBC) Plaintiff was involved in a single vehicle motorcycle accident in 2005. He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“. He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages. ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill. Mr. Justice Saunders disagreed and dismissed ICBC’s application.
ICBC Appealed arguing the trial judge applied the wrong test and that motorists must meet “an expanded test of reasonableness” in attempting to identify the unknown motorist. The BC Court of Appeal rejected this argument finding no expanded obligation exists. The Court provided the following reasons:
[29] The main proposition from Leggett is that the test of reasonableness in s. 24(5) has a subjective component. In the words of Taylor J.A.:
[11] 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 subs. (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.”
[12] 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.”
[Emphasis added.]
[30] This is confirmed by this Court’s decision in Etter v. Insurance Corporation of British Columbia, 1999 BCCA 281, 126 B.C.A.C. 144, where Madam Justice Ryan, for the Court, stated at para. 5, that the test in s. 24(5) of the Act was summarized in para. 11 of Leggett.
[31] Thus, the only qualification on the requirement of “all reasonable efforts” in s. 24(5), is the subjective aspect of the test that requires the “position and condition” of the plaintiff to be considered in determining what efforts are reasonable in the circumstances. In all cases, the single standard to be met is one of reasonableness.
[32] In sum, I am not persuaded that the chambers judge erred in describing the test in s. 24(5) as one of reasonableness. In citing the statutory provision he was alive to the requirement on the respondent to demonstrate that “all reasonable efforts” had been made in the circumstances to ascertain the identity of the unknown tortfeasor. He then determined whether, in the circumstances of this case, considering the respondent’s subjective circumstances at the time of the accident, and based on a cost-benefit analysis of his efforts, or lack thereof, after the accident, the respondent had met the standard required by the provision. In my view, in the circumstances of this case, he did not err in adopting this approach to the issue.