Hit and run could be thrown out

After a hit and run car accident claimant’s cannot and should not rely on ICBC to advise them of the reporting reporting obligations, says the British Columbia Supreme Court. Even though an ICBC claimant is required to report to ICBC the circumstances and consequences within 30 days, the ICBC adjuster can remain tight lipped about whether the hit and run report has been adequate, denying the claim months later.( Fitger v. ICBC et al,2015 BCSC 18550)

The issue of the statutory defence of Insurance Corporation of British Columbia under section 24(2) of the Insurance (Vehicle) Act  was found to be severable.The judge had already ruled that the claimant had complied with the written notice requirement, there being a written record at ICBC of his timely oral report of an accident caused by an unidentified driver.

The ICBC argument in this hit and run case focused on the claimant’s actions or inaction in the immediate aftermath of the accident rather than the next day or thereafter, when he essentially took the actions suggested by his ICBC claim adjuster, as well as additional actions of his own initiative. As the judge admitted,

[10]     Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as [F] of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[15]   The point is that s. 24(5) operates independently of the position of the parties. In Li, the court goes on to say, in para 131:

[131]    Consequently, it is not open to ICBC to insist on compliance or to waive or abandon a defence under s. 24(5). The legal right does not belong to ICBC except in the context of a settlement. Thus, by failing to inform a claimant of the provisions of s. 24, the defendant has not allowed the plaintiff to make any assumption that engages a reliance on its strict rights...

[17]   In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).

 As, with most monopolies, ICBC is unable to fulfill  public obligations unless it is in the best interest of ICBC and is required by law.   Legal change is therefore needed to enshrine the common sense duty to inform the public regarding the confusing obligated ascertainment’s of our Hit and Run legislation.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B. – Serving all of BC

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