Tag: section 24 Insurance (Vehicle) Act

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. ICBCPlaintiff 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.

ICBC Hit and Run Claim Succeeds With The "Expectation The Other Driver Would Comply With the Law"


Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, which I summarize in my continued efforts to highlight the ‘reasonable efforts’ requirement for hit and run accident victims.
In last week’s case (Singh v. Clay) the Plaintiff was injured in a handful of collisions.  In one of the incidents the Plaintiff’s vehicle was rear-ended.  Following impact the offending motorist “drove away without stopping, as the Plaintiff exited his vehicle“.  As a result the Plaintiff was unable to take down the offending vehicles licence plate number.
ICBC argued that the Plaintiff did not take reasonable efforts at the scene to identify the driver.  The Plaintiff conceded that he “could have done so but he did not look at the licence plate as he did not expect the driver to drive off as she did“.  Mr. Justice Greyell found this was a reasonable explanation and concluded the Plaintiff complied with his obligations under section 24 of the Insurance (Vehicle) Act.  The Court provided the following useful comments:

[78] In the present case, Mr. Singh might have been able to take down the licence plate number of the offending vehicle if he had done so immediately.  However, he did not expect the vehicle to leave the scene of the accident.  Once it became clear that the vehicle was not going to stop, his wife made an effort to write the number down, but only got two of the letters.  Following the accident Mr. Singh took all reasonable steps to ascertain the identity of the driver.  He spoke to two witnesses, he telephoned ICBC, attended the police, phoned his lawyer to obtain advice as to how to proceed, and, as a result, put up flyers seeking witnesses.

[79] In Leggett the plaintiff’s case was dismissed because the Court found he had made a decision not to pursue his rights at the time of the accident.  In Smoluk the Court distinguishedLeggett stating, at para. 9:

[9]        In my view, the Leggett case is clearly distinguishable from this case because the plaintiff in this action made no decision not to pursue her rights. She was prevented from obtaining more information because of the precipitate departure of the wrongdoer, and in my view the plaintiff acted reasonably in taking down the license plate number which would lead any reasonable person to believe that the identity of the person had been or could easily be ascertained. The fact that she got the number wrong in such circumstances does not indicate unreasonableness.

[80] The facts in Smoluk are similar to those in this case.  The offending driver in that case drove away while the plaintiff was inspecting the damage to his vehicle.  While the driver in Smolukdid get the opportunity to take down a partial plate number Mr. Singh did not.  I find that under the circumstances his expectation the other driver would comply with the law and stop his/her vehicle was a reasonable one.  When the vehicle left the scene as he was getting out of his vehicle, it was too late to get particulars of the licence plate number.  I conclude Mr. Singh acted as a reasonable person would have acted in preserving his rights.

More on Implied Consent of Registered Vehicle Owners: "Reasonable Inferences"

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with an interesting issue – can a Court infer consent to operate when a commercial vehicle is involved in a ‘hit and run’ collision?
In last week’s case (Perret v. John Doe) the Plaintiff was injured in a 2005 collision.  She was run off the road by a U-Haul truck which was driving the wrong way on the highway.  The driver of the U-Haul did not remain at the scene of the accident.  The Plaintiff sued U-Haul arguing they are vicariously liable for the careless driver’s deeds under s. 86 of the Motor Vehicle Act.  She also sued ICBC under the unidentified motorist provisions of the Insurance (Vehicle) Act.
ICBC brought an application arguing U-Haul is at fault and that they are liable for the crash because anyone driving the vehicle likely had their consent to do so.  U-Haul opposed arguing ICBC should pay for the Plaintiff’s damages as this was an unidentified motorist claim and consent could not be proven.
The Court was asked to determine “whether ICBC or…U-Haul Co. is the proper Defendant” as a special case under Rule 9-3.  Ultimately the Court held that U-Haul was the proper defendant finding that it was reasonable to infer, on a balance of probabilities, that the driver had the company’s consent to drive.  In reaching this conclusion the Court made the following findings:







[15] The following agreed facts about the accident of May 12, 2005, could support a finding of consent:

1) The truck which caused the plaintiff to lose control of her vehicle was owned by U-Haul;

2) U-Haul rents vehicles to customers in British Columbia;

3) U-Haul consents to drivers, other than the person with whom it contracted, to drive the vehicle if they are at least 18 years of age and have a driver’s licence;

4) Approximately 135 U-Haul vehicles were rented in British Columbia on May 12, 2005;

5) There were 114 vehicles owned by U-Haul Canada that were previously stolen and unrecovered on May 12, 2005, of which 15 had been stolen in British Columbia; and

6) The driver of the U-Haul that caused the accident was probably a man in his 50s.

[16] What I derive from the above agreed facts is that:

1) It is probable that the U-Haul vehicle was not stolen. That suggests it was driven, either by the person who initially rented it, or by someone who that person agreed could drive it, and who was at least 18 years of age. U-Haul accepts that if either is true there is consent, assuming the driver had a driver’s licence;

2) I take notice that a driver in British Columbia must have a driver’s licence and therefore I conclude it is probable this driver had one.

[17] There are other facts which may be inconsistent with consent. They are the following:

1) The driver was clearly lost;

2) The driver may have been uncertain of his ultimate destination;

3) The driver did not stop at the time of the accident.

[18] Those facts may be inconsistent with consent because:

1) It would be expected that a person who rents a U-Haul vehicle will have done so for a particular purpose and will have known his destination and the route he intended to follow;

2) A driver who leaves the scene of an accident may do so because he knew he was driving a stolen vehicle.

[19] However, there are numerous other possible reasons for failing to remain at an accident scene. One could be that the driver did not know he had caused an accident. There was no contact between the vehicles involved in the accident on May 12, 2005. Another could be that the driver knew he had caused an accident and did not wish to face the consequences. There may be a multitude of other reasons peculiar to this driver which caused him to leave the scene of the accident. In my view, the fact the driver left the scene of the accident does not assist in determining the issue of consent.

[20] When considering the circumstances of the accident of May 12, 2005, there is obviously no certainty when attempting to reach a conclusion that the U-Haul vehicle was driven by a person who had consent. However, the law does not require certainty. It does require that I draw a reasonable inference and do not rely on conjecture. The Court of Appeal in Lee v. Jacobson, [1994] B.C.J. No. 2459, has described Caswell v. Powell Duffryn Associated Colleries Ltd., [1940] A.C. 152 (H.L.) [Caswell], as the leading case making that distinction. In Caswell, at 169-70, Lord Wright observed:

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

[21] I conclude I can safely draw an inference that it is more likely than not that the driver had consent. I therefore answer question 2 in the affirmative.

[22] ICBC is entitled to its costs against U-Haul, if requested.








"Frightened" Claimant Excused From Obtaining Information From Motorist in s. 24 ICBC Claim


As previously discussed, one of the conditions to successfully sue ICBC under section 24 of the Insurance (Vehicle) Act following a hit and run collision is to take “all reasonable efforts” to ascertain the identity of the at fault motorist.  Failure to do so can be fatal to the claim.  Reasons for judgement were released this week by the BC Supreme Court, Duncan Registry, discussing this requirement.
In this week’s case (Burton v. ICBC) the Plaintiff was involved in a rear-end crash in 2008.  It was a dark and rainy night and the Plaintiff was travelling alone.  Following the collision the rear motorist “immediatley began banging on the windows (of the Plaintiff’s vehicle)…(and) yelled ‘move the car off the road, let’s get this over and done with bitch’ “.  The Plaintiff remained in her vehicle and the rear motorist then “slammed (the Plaintiff’s) door, returned to his vehicle, backed away and then passed by on her right side…and disappeared from her view”.
The Plaintiff sued ICBC for damages under section 24 of the Insurance (Vehicle) Act.  ICBC denied liability arguing that the Plaintiff had a reasonable opportunity to obtain the at fault motorists details and she failed to discharge her responsibilities under this section.  Mr. Justice Macaulay rejected ICBC’s arguments and awarded the Plaintiff damages.  In doing so the Court provided the following reasons:

[26] Section 24 and its predecessor have been judicially considered and applied many times. While the fact patterns in the cases are understandably divergent, there is little, if any, controversy in the law. In Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (B.C.C.A.), the Court of Appeal, referring to the predecessor section, set the bar fairly high for plaintiffs, stating at para. 9:

In my view the overall purpose of the section is to limit the exposure of [ICBC] 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 in their own interests, and which, by virtue of the section, become the interests of the corporation.

[31] I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.

[32] I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.

[33] Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.

[34] I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.

Unidentified Motorist Claims and the "Fixed Pie" of ICBC Funds


Reasons for judgement were released this week discussing the division of the limited funds available from ICBC when multiple parties successfully sue ICBC for damages as a result of injuries caused by an unidentified motorist.
In today’s case (Thoreson v. ICBC) the Plaintiff and his passenger were injured in a 2002 motorcycle accident near Vernon, BC.  Their motorcycle was run off the road by an unidentified driver.    ICBC was sued under s. 24 of the Insurance (Vehicle) Act and after trial the Unidentified driver was found 85% responsible for the crash and the Plaintiff driver was found 15% responsible.

Both the Plaintiff and his passenger settled the value of the claims.  The Plaintiff’s claim was settled for $125,000 and the passenger’s claim for $935,521.  To satisfy the damages both the Plaintiff and the passenger claimed damages from ICBC under section 24.  Mr. Justice Cole of the BC Supreme Court was asked determine how much of the $200,000 available in the section 24 ‘pool’ the Plaintiff was entitled to.

Ultimately the Court noted that this pool of money needs to be shared proportionately to their claims leaving the Plaintiff with only 11% of the pool or some $23,000.   The Plaintiff appealed arguing this result was unfair as the passenger was able to collect her judgement from his insurer (as he was found partially to blame).  The BC Court of Appeal dismissed the matter and upheld the trial judgement.  In doing so the Court provided the following reasons discussing the purpose behind the ICBC scheme of compensation for injury victims caused bu unidentified motorists:

[20]         Although I have some sympathy with the appellant’s predicament, in my view, his approach to the application of s. 24 ignores the legislative scheme of the applicable insurance coverage in this case and conflates a demand for payment with a claim under s. 24.

[21]         The appellant stresses that Ms. Schultz demanded payment only from Excellent.  The agreed facts for the stated case confirm this.  The judge referred to the appellant’s position in para. 15.  It was his opinion, with which I agree, that the fact Ms. Schultz demanded payment only from Excellent does not obviate the application of the plain language of s. 24.  She claimed against ICBC as a nominal defendant and obtained judgment against ICBC.  Section 24(8) states that ICBC “must” pay the amount authorized by the Act “towards satisfaction of the judgment”.  The fact Ms. Schultz demanded payment from Excellent does not alter the fact she engages s. 24 by claiming against ICBC as a nominal defendant.

[22]         There were three available coverages: no fault benefits; the s. 24 fund; Excellent’s third-party liability coverage.  Understandably, the appellant focuses on his situation, but it is mandatory to pay both no-fault benefits and the s. 24 fund.  In my view, considering the scheme of the legislation and the plain wording of s. 24, claims that attract the application of that section must be paid, and where there are multiple claims arising out of one accident, must be paid on a pro-rated basis.  This is consistent with I.C.B.C. v. Kushneriuk, 2004 BCCA 440 (the usual method of distribution is prorating).

ICBC Hit and Run Injury Claims: A Detailed Discussion of the "Reasonable Efforts" Obligation


I’ve written many times about ICBC Injury Claims involving unidentified drivers.  In short, 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.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this obligation and usefully setting out many of the legal principles behind what amounts to a ‘reasonable effort’.
In today’s case (Morris v. Doe) the Plaintiff was injured in a 2006 collision.  She was a passenger in her husband’s vehicle.  They were stopped at a red light and were rear-ended by an unidentified motorist.  The force of the crash caused the Plaintiff’s vehicle to collide with a stationary vehicle in front of them.  Following the crash the Plaintiff’s husband exited the vehicle and looked towards the at fault vehicle.  He motioned for the rear motorist “to pull his vehicle off to the side of the road into (a) parking lot”.  Following this the Plaintiff and front motorist pulled into the parking lot and the rear motorist drove away.
The Plaintiff sued ICBC for damages under section 24.  The case was dismissed with Madam Justice Ker finding that the Plaintiff failed to make all reasonable efforts to identify the at-fault motorist.  Prior to reaching this conclusion the Court provided the following useful summary of past cases addressing ‘reasonable efforts’ in ICBC hit and run injury claims:

[55]         An examination of the jurisprudence on what constitutes reasonable efforts reveals the following principles:

a.       depending on the plaintiff’s condition at the scene of the accident, it may not be realistic to expect the plaintiff to obtain particulars as to the identity of the offending driver particularly where the plaintiff is in shock or confused or injured: Tessier; Hocaluk; Ingram v. ICBC (1994), 45 B.C.A.C. 218 [Ingram]; Holloway v. ICBC, 2007 BCCA 175, at para. 14; Larsen v. Doe, 2010 BCSC 333 [Larsen]; Becker v. ICBC, 2002 BCSC 1106 [Becker], at para. 20; Nelson at paras. 19-20

b.       failure to record a licence plate number at the time of the accident when the plaintiff has the opportunity to do so or obtain information as to the driver’s identity, either personally or through the assistance of others, but does not take advantage of the opportunity amounts to a failure to take reasonable steps at the time of the accident: Burley at paras. 23-24;Watson v. Insurance Corporation of British Columbia, 2004 BCSC 1695 [Watson]; Cannon v. ICBC, 2005 BCSC 602;

c.       simply notifying the police of the accident may not be sufficient to satisfy the requirements of s. 24(5): Tessier at para. 17; Becker at para. 18;

d.       the Act does not put the responsibility to find the unidentified driver on the police; rather the responsibility lies with the plaintiff: Becker at para. 17

e.       where a plaintiff does notify the police of the accident, it is not reasonable for them to simply assume the police will make the necessary inquiries without following up with the police and checking to see if there was an investigation and if so what progress was being made in it: Becker at paras. 17-18; Tessier at para. 17; Goncalves at para 23;

f.        simply reporting the matter to the police and ICBC, without more, has led to the dismissal of a plaintiff’s action for failure to comply with the requirement of taking all reasonable steps to ascertain the identity of the driver: Meghji v. ICBC, [1998] B.C.J. No. 3107 (P.C.) (QL);

g.       where the police attend the scene of the accident and take witness statements and indicate they are investigating the hit and run accident, it may not be necessary for the plaintiff to take any additional steps, depending on the circumstances: Hough v. Doe, 2006 BCSC 1450 [Hough], at paras. 16-17 & 21; Ingram at para. 13;

h.       a plaintiff placed in a position of danger at the time of the accident cannot be expected to remain in that position to obtain details of a licence plate and movement to a position of safety before trying to obtain any licence information does not constitute a failure to take reasonable steps at the scene of the accident: Nelson at paras. 19-20;

i.        posting signs in the area of the accident and/or advertising in local newspapers in an effort to find witnesses within a reasonable time after the accident where the accident occurs at a busy intersection is a reasonable and expected step as it is possible that someone present at the time of the accident could be of assistance in ascertaining the identity of the driver of the vehicle that left the scene: Johal v. ICBC (1992), 9 C.C. L.I. (2d) 172 [Johal]; Fan v. Doe, 2009 BCSC 568 [Fan]; Nelson at paras. 21-22; Godara at paras. 51-54;Tessier at para. 17; Halfyard v. ICBC (1993), 26 C.C.L.I. (2d) 320 [Halfyard];

j.        failing to post signs at the scene of the accident or place advertisements in the newspaper in a timely manner or in a manner that provides insufficient detail where it is possible that there were potential witnesses who may have information about the accident will result in a denial of coverage under s. 24 of the Act: Johal; Fan; Burley; Becker; Nelson at paras. 21-22; Jennings v. ICBC, 2002 BCSC 341;

k.       repeatedly canvassing regular patrons of the business where the plaintiff’s vehicle was damaged in the parking lot of the business may constitute reasonable steps to ascertain the identity of the driver: Janzen v. Insurance Corporation of British Columbia, 2004 BCPC 437;

l.        posting signs and advertising in local newspapers may not be a reasonable step where the accident occurs on a high speed area of highway or a on highway in an area that is undeveloped and sparsely populated: Hough at para. 24; Goncalves at para. 16-21;

m.      once it is found that a plaintiff acted reasonably in believing they had the information that would be required, such as a licence plate number, there is no onus cast upon them to undertake a highly speculative further investigation upon being advised they have the wrong license plate number: Smoluk v. ICBC (1993), 26 B.C.A.C. 23 [Smoluk]; Walker v. Farnel (1995), 36 C.C.L.I. (2d) 312, at para. 24;

n.       a plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in a hit and run case where they rely upon information provided by the offending driver that subsequently turns out to be untruthful: Mudrie v. Grove, 2010 BCSC 1113, at paras. 33-36;

o.       failure to follow up on directions to take additional steps such as posting signs for witnesses or advertising, once advised the recorded licence plate number is incorrect will result in a denial of coverage under s. 24 of the Act: Watson;

p.       failing to make a timely report to the police and failing to follow up on available information from the scene of the accident such as information in the possession of ambulance personnel who attended the scene will result in a denial of coverage under s. 24 of the Act: Johal;

q.       the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity: Tessier at para. 19.

[56]         As the jurisprudence demonstrates, what constitutes reasonable steps varies with the circumstances of each case. However, where it was not reasonable to obtain information that would assist in ascertaining the identity of the driver at the time of the accident, taking no steps at the second stage in the days or weeks after the accident, cannot amount to discharging the clear onus placed upon a plaintiff to take reasonable steps to ascertain the identity of the unknown driver.

Relying on Police Alone Insufficient Effort in ICBC Hit and Run Injury Claim


As previously discussed, when suing ICBC for damages as a result of the actions of an unidentified motorist (UIM), a Plaintiff needs to make reasonable efforts to ascertain the identify of the UIM.  Failing to do so will prove fatal in the claim against ICBC under s. 24 of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing whether relying on the police to investigate the identity of an unknown motorist is sufficient.
In this week’s case (Lort v. Kwan) the Plaintiff was involved in a motor vehicle collision.  The Plaintiff was on a motorcycle travelling behind the defendant’s vehicle.  An Unidentified Motorist changed lanes in front of the Defendant causing the Defendant to hit her brakes and swerve to the right which in turn caused a collision with the Plaintiff.  Mr. Justice Armstrong found that all 3 motorists were partly to blame for the crash with the UIM and the Defendant each bearing 40% of the blame and the Plaintiff being 20% at fault.
Despite finding that the UIM was partly to blame the Court dismissed the Plaintiff’s claim against ICBC (who was sued in place of the UIM) because the Plaintiff failed to take reasonable steps to identify the UIM following the crash.  Mr. Justice Armstrong provided the following reasons:
[36] The plaintiff did not post signs looking for help in identifying the UIM. Although he did return to the scene of the accident some weeks late to take pictures, he did not advertise in an effort to identify the UIM, nor did he question any of the merchants in the busy commercial area. He did not make any enquiries of the police. He said that he thought that the police were handling the investigation of the accident. The plaintiff submitted a claim under the unidentified motorist provisions of the Act…

[99]         The plaintiff acknowledges that he did not advertise, post signs or notices, attend at the scene of the accident to make inquiries of merchants in the neighbouring area, or follow up with the police after his initial contact with them at the time of the accident.

[100]     ICBC submits that the plaintiff’s failure to take any of the steps ordinarily associated with all reasonable efforts to identify the owner or driver of a vehicle who has caused an accident is fatal to his claim against it.

[101]     I conclude that the plaintiff did not make any reasonable efforts to identify the UIM involved in the accident other than speaking to the police who attended the accident scene and later  in the hospital. He left everything to the police without ever following up on their progress.

[102]     In the circumstances, I conclude that the plaintiff’s failure to take reasonable steps precludes him from succeeding in this action against the ICBC. Accordingly, although I have concluded that the UIM is 40% at fault, I dismiss the action against ICBC with costs.

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.

[]           In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[]           Judgment is therefore entered against the nominal defendant, ICBC.

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:

[6] 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.

ICBC Unidentified Motorist Claims and Post Accident Advertising

(IPDATE:  The case discussed in the below post was upheld on Appeal on October 26, 2011)

As previously discussed, victims of injuries sustained in collisions caused by “unidentified motorists” can seek compensation directly from ICBC under section 24 of the Insurance (Vehicle) Act provided that they comply with this section.  One of the requirements of s. 24 is for the claimant to make “all reasonable efforts” to ascertain the identity of the at fault motorist.  One reasonable effort a Plaintiff can take is to advertise for witnesses.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing post accident advertisements and explaining that these are not always necessary to bring a successful s. 24 claim.
In today’s case (Nicholls v. Anderson) the 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.  In doing so the Court provided the following useful reasons about advertisements and s. 24 claims:

[13]         The last step contended by ICBC is one in which the claimant ought reasonably to have taken is the placing of a newspaper advertisement or advertisements. This aspect of ICBC’s argument has been of the greatest concern to me on this application because it is a step that could have been taken at relatively modest cost, and because in this particular case the claimant took absolutely no positive steps aimed at ascertaining the identity of the persons responsible.

[14]         I do not think that this argument can be answered solely by the claimant pointing — as was done in argument — to the fact that the accident did not happen in a well-defined geographic area or one where there was a specific readership of a specific newspaper likely identifiable. In my view, if there was an obligation to place a newspaper advertisement or advertisements, they could have been placed in community newspapers serving the north side of the Fraser in the areas of Mission and Hope and perhaps Maple Ridge, or alternatively, as ICBC argued today, in one or both of our Vancouver daily newspapers which enjoy a readership outside the greater Vancouver area.

[15]         Mr. Nicholls perceived himself in the statement that he gave within days of the accident as having sustained more than a trivial injury. If his only recourse legally were to pursue the tortfeasor, the person responsible for the spill, what steps would he have taken if acting rationally in pursuit of his own interests?  Would he have gone to the extent of placing such newspaper ads?

[16]         In my view, the reality is that there would have been only an extremely remote chance of such a line of enquiry being successful. If there ever was a time when the citizens of this province had a habit of scamming the legal notices printed in the daily or weekly newspapers’ classified sections, that day has long passed. The presumed target for any such advertisement would have been someone who would happen to have been following the truck in question in daylight in the vicinity of the accident scene, who would have seen the diesel oil splashing, would have made mental note of it as something significant, and then would have been able to make note of the truck’s appearance with sufficient particularity to identify the driver. That person, if one existed, would then have to read the advertisement in question. The possibility of all of this is so remote that in my view for the claimant in his position to have undertaken even the modest cost of taking out such an advertisement would have been absurd.

[17]         That is not to say that it would be inappropriate in any case for a claimant injured in a motor vehicle accident to take that step. As I say, the reasonableness of a person’s conduct depends in part on the benefit to be gained if they undertake  a course of action. I would not say, certainly not on this application today, that a person who had suffered a catastrophic injury involving quadriplegia or brain injury or the like could feel free not to take a positive step such as taking out a newspaper advertisement or posting an internet classified advertisement in an attempt to locate a tortfeasor, no matter how remote the chances of that being successful might seem; but in this case, given the claimant’s relatively modest injuries as alleged and as attested to in his statement, I do not think that would have been a reasonable requirement on his part.

This case is interesting because the Court went further and struck the paragraphs of ICBC’s Statement of Defence alleging that the identity of the offending motorist was ascertainable.  The Court cited the New BC Supreme Court principle of “proportionality” in arriving at this decision.   Mr. Justice Saunders provided the following reasons:

[18] So the application is dismissed, and in my view it is appropriate in this case to go further than that and to dispose of the defence. In my view in all likelihood I know as much about the reasonableness of the claimant’s actions, given the evidence that has been presented, as a trial judge would, and so I am able to rule conclusively on that issue. I also acknowledge the points made by counsel for ICBC and counsel for the claimant as to the need to under the new Rules to have regard to proportionality. So, in conjunction with dismissing the application, I rule that paras. 2 and 4 of the statement of defence of ICBC be struck. Those are the paragraphs in which it is alleged that the identity of the driver/owner was ascertainable and that the claimant has not complied with the Act in failing to make all reasonable efforts to ascertain the identity of the unknown driver.

"Prior Consistent Statements" and ICBC Unidentified Motorist Claims


Generally speaking a person is not allowed to call evidence of ‘prior consistent statements‘ at trial.  The reason is because this offends the rule against hearsay and is an improper attempt to bolster witness credibility.  There is a powerful exception to this general rule, however, and this relates to allegations that a witness is fabricating their court-room evidence.   This exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry, in a personal injury lawsuit arising from a hit and run accident.
As I’ve previously written, injury victims have the right to sue ICBC for damages when involved in hit and run accidents in BC.  These are commonly referred to as section 24 claims because injury victims involved in unidentified motorist claims gain the right to sue ICBC directly through section 24 of the Insurance (Vehicle) Act.
ICBC often defends section 24 claims by denying the existence of the unidentified motorist and blaming the Plaintiff for their own injuries.  When this happens the ‘recent fabrication‘ exception is triggered in effect opening the floodgates for corroborating evidence at trial.
In today’s case (Jennings v. Doe) the Plaintiff was injured when a tractor trailer cut him off and forced his vehicle off the road.  The Driver of the tractor-trailer left the scene and the Plaintiff could not identify him.  The Plaintiff sued ICBC directly for his injuries.  ICBC defended the claim denying the existence of the tractor trailer.  The Plaintiff attempted to call evidence of prior consistent statements corroborating his courtroom evidence.  ICBC objected arguing this was not permissible.  Madam Justice Baker disagreed and allowed the evidence in.  In doing so the Court gave the following very useful reasons:

[52]         Counsel for the defendants objected to the admission of the testimony of Mr. Simon and Mr. Jennings, Sr., and various documents indicating that Mr. Jennings did, at the earliest opportunity, and consistently since that time, claim that the accident had been caused by the actions of the driver of a tractor-trailer unit.  Counsel submitted, correctly, that previous “consistent” statements of a witness are normally not admissible for the truth of their contents, or to buttress the credibility of a trial witness’ testimony.  The defendants say they are not asserting a “recent” fabrication, although by implication they are asserting that Mr. Jennings has fabricated a story about how the accident happened.

[53]         In my view, earlier decisions of this court establish that in circumstances such as these, the previous out-of-court statements are admissible and relevant not for proof of the truth of the out-of-court statements but to rebut any inference that a claimant is lying because he failed to assert his present version of events at the first and any subsequent opportunity when it would be reasonable to expect him to do so, or had made inconsistent claims in the past about the circumstances of the accident.

[54]         In Vanderbyl v. Insurance Corporation of British Columbia, (1993) 79 B.C.L.R. (2d) (S.C.), at paras. 37 and 38, Mr. Justice Trainor, an experienced trial judge, set out a list of elements to be considered in assessing the credibility of a plaintiff in cases such as these.  Among the elements identified by Justice Trainor were the following:

1.  Whether the plaintiff reported the existence of the unidentified vehicle as soon as reasonably possible to the police or other persons in authority and to I.C.B.C.

2.  Whether the description of the unidentified motor vehicle given by the plaintiff was as specific as might reasonably be expected from the particular plaintiff in the circumstances.

3.  Whether the plaintiff’s testimony at trial is consistent with statements given to the police, doctors or medical attendants, family members, associated or other witnesses or to I.C.B.C.

4.  Whether the plaintiff has called witnesses to testify to whom statements were made or who might testify about the plaintiff’s actions after the incident.

8.  Whether the plaintiff’s actions following the accident are consistent with those one might reasonably expect of a person in similar circumstances.

[55]         In this case, Mr. Jennings reported the existence of the unidentified vehicle as soon as reasonably possible to the police and to the Insurer.  Mr. Jennings told drivers who stopped at the scene and the ambulance attendant ? Mr. Simon ? that a tractor-trailer unit had been involved and he attempted to make a report to police at the scene, but was prevented from doing so by the ambulance personnel who were concerned about his physical injuries.  Mr. Jennings Sr. reported the involvement of a second vehicle to the Boston Bar RCMP Detachment on the day of the accident.  Mr. Jennings Sr. reported the circumstances to the dial-a-claim adjuster by telephone and Mr. Jennings made a statement in person and in writing to an adjuster a few days after the accident.  The evidence of Mr. Simon about Mr. Jennings’ anger and his physical condition when assessed at the accident scene is consistent with what one might reasonably expect of a person in similar circumstances.   I believe Mr. Jennings, and I accept his testimony about how the accident happened.

When advancing a hit and run ICBC claim it is good practice to review hospital, ambulance, police and other records to look for ‘prior consistent statements’ in the event ICBC alleges recent fabrication at trial.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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