In this hit and run motorcycle accident case (Nicholls v. Emil Anderson Maintenance Co. Ltd.) the Insurance Corporation of British Columbia ( ICBC) lawyers were seeking a court order dismissing an unidentified driver claim brought against it, on the basis that the injury claimant failed to take reasonable steps to ascertain the identity of the driver responsible for the motorcycle accident. Get a good personal injury lawyer if you have a hit and run injury claim in British Columbia. I have written before about the top personal injury lawyers in British Columbia so make sure you read and understand my suggestions.
This claimant was injured in a single vehicle accident when he lost control of his motorcycle while driving on an isolated stretch of Highway 7 between Kent and Mission, B.C. The injury claimant says that he lost control of his motorcycle when he encountered a diesel fuel spill on the highway. The evidence given in his ICBC statement is that the oil spill was about two feet wide and about one-half to three-quarters of a kilometre in length and it seemed to be the sort of spill that might be caused by diesel fuel having escaped from a truck fuel line due to an unsecured fuel tap.
The injury claimant conceded that other than notifying the police,ICBC, and the operator of a passing maintenance sand truck which happened on the scene in the aftermath of the accident, the claimant did nothing to ascertain the identity of the driver of the vehicle in question. Section 24(5) of the Insurance (Vehicle) Act, R.S.B.C. 1996 c. 231 provides as follows:
24 (5) In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that
(a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and
(b) the identity of those persons or that person, as the case may be, is not ascertainable.
ICBC argued, amongst other things, that the claimant ought reasonably to have placed a newspaper advertisement or other ads. This aspect of ICBC’s argument was of the greatest concern to the judge because it is a step that could have been taken on the facts of the injury case as “relatively modest cost”, and because in this particular case the injury claimant took no positive steps aimed at ascertaining the identity of the persons responsible. As the judge asked rhetorically, “If his only recourse legally were to pursue … 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?” Taking into account changes in our modern society the judge pointed out importantly,
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 scanning 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.
So the judge dismissed the ICBC application and, having regard to proportionality in our civil rules, struck paras. 2 and 4 of the statement of defence of ICBC . Those were the paragraphs in which it was alleged that the identity of the driver/owner was ascertainable and that the claimant failed to make all reasonable efforts to ascertain the identity of the unknown driver.
The issue of fault at the time of this post still is yet to be decided and you may want to take a look at my post on a motorcycle accidents in BC where there was no contact with the other vehicle. Posted by Mr. Renn A. Holness
Issue: Should a hit and run victim have to place newspaper ads to try to find the other driver and witnesses or is that absurd in our modern world?