In British Columbia people that are injured in hit and run car accidents can claim against the Insurance Corporation of British Columbia, ICBC, for their losses. There are however many limitations and exceptions as this money is coming from an uninsured recovery fund and not from an existing insurance policy. I have written several articles on hit and run so take a moment to review the basics of a hit and run injury claim in BC.
This ICBC hit and run case was dismissed(Springer v. Kee,2012 BCSC 1210)by the court and the judge has made it clear that ICBC owes no obligation to injury claimants to tell them about the requirements to apply for hit and run compensation. This is despite representations to the claimant from the ICBC adjuster to the effect that his claim would be settled once the claimant had provided medical report and other documents.
The claimant was driving eastbound on Sprott Street in Burnaby, British Columbia when the car behind was struck from behind and pushed underneath the back of the claimant’s car. The car that caused that accident left the scene of the accident without being identified. The only steps the claimant made to find out the identity of the other driver was to contact ICBC and the police. The issue on the summary trial application was whether ICBC was liable for the claimant’s damages. ICBC alleged that the claimant was not entitled to judgment because he failed to take all reasonable efforts to ascertain the identity of the unknown owner/driver. Starting at paragraph 86 the judge comments,
It seems grossly unfair and against the public interest for ICBC to make representations to a claimant, leading him to think his claim had been accepted and that they were intending to offer him a settlement but, after the passage of time and without warning, tell him he has failed to meet the technical requirements of the Act depriving him of a settlement and denying his claim. During the passage of two prior years, they invited settlement on several occasions; however, when the time came to pay the plaintiff’s damages, they then raise the defence under s. 24(5) of the Act. Although there is no obligation for ICBC to remind a plaintiff of the requirements of s. 24(5), it seems to me ICBC had a duty to qualify their settlement discussions so as not to mislead the plaintiff.
The Insurance Corporation of British Columbia could have told the plaintiff plainly that they were unable to give any information until they see his medical report. Instead, they said to “call us when you are ready, we have an offer for you.” ICBC is represented through its agents and therefore, must be bound by the representations made by those agents. Otherwise, they would not be able to be held accountable at all. The adjuster had accepted Mr. Springer’s claim as a hit and run claim based on the information he presented to them at the time of his first report. They were satisfied at the time that Mr. Springer had fulfilled the requirements under s. 24(5) of the Act; ICBC subsequently resiled from this position after the litigation was commenced.
It seems to me that, notwithstanding the unfairness to the plaintiff who has indirectly relied on ICBC to ascertain that he has complied with the Act as evidence that he was not required to take further measures to perfect his claim, Mr. Springer has not taken the steps required after the accident under s. 24(5) of the Act to find the unidentified motorist.
I accept the view that ICBC was not obliged to warn the plaintiff of his ongoing obligations in the immediate aftermath of his reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.
Amazingly the judge dismissed the claim but acknowledged that ICBC ought to recognize the risks that laypeople will rely on remarks made by adjusters suggesting settlements can be expected without warning that the claim will be denied if they do not comply with the legal requirements . Regrettably, the judge also noted that the “Helping You with Your Hit and Run Claim” pamphlet published by ICBC given to the claimant by the ICBC adjuster did not mention the implications of the statutory requirements.
Posted by personal injury lawyer Mr. Renn A. Holness B.A., LL.B.