As discussed in previous blog posts, there are certain requirements that must be met for ICBC hit and run claims. If these steps are not taken, then ICBC can rely on a statutory defence to dismiss the claim entirely.
Section 24 of the Insurance Vehicle Act sets out the legal basis for an ICBC hit and run claim:
(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.
For details on how to report an ICBC hit and run claim, please see this video of Mr. Renn Holness explaining the law.
An example of an ICBC hit and run claim that was dismissed because the injured claimant did not take the necessary steps to identify the other driver is found in the recent case of D.H. v. Doe 2021 BCSC 112.
In this case, the injured claimant suffered injuries in 2 separate motor vehicle accidents. The first accident occurring on February 14, 2015 took place in the drive-through of a McDonald’s restaurant. He was stopped in the drive-through lane when he was rear-ended by a vehicle behind him that “rolled into him”. There was no visible damage to his car aside from a scratch which the trial judge questioned was a result of the impact. He did not call 911 or speak to the other driver at the scene. Instead, he proceeded to the food window, collected his order, and parked somewhere nearby. He said that he expected the driver of the other vehicle to follow him and exchange information. Instead, the other vehicle left the area and did not return. The injured claimant testified that he made a note of the other driver’s licence plate number on the bag containing his food. Then he called the ICBC to report the incident and get a claim number.
The ICBC employee who took this call testified at trial along with the claims adjuster who contacted him several days later to follow up. Although the injured claimant denied it in cross-examination, the trial judge accepted as a fact that during these phone calls he reported that: 1) the other driver stopped, got out of his vehicle, and spoke to him; 2) the other driver was a 70 year old male driving a grey/blue Ford Escape who explained that his foot had slipped off the brake; and 3) this person asked if he was okay and he responded that he was fine. The injured claimant provided a vehicle description and licence plate number but both ICBC employees said it produced no “match” within their database.
The injured claimant did not take any additional steps to identify the driver until he hired legal counsel. He called the RCMP to report the accident where he advised that he was “bumped from behind” in the drive through. In contrast to what he told ICBC, he told the RCMP that he was unable to get a description of the other driver, his vehicle or his licence plate number.
Credibility was a large issue at his trial on several accounts in addition to the circumstances of the motor vehicle accident.
Further steps to identify the other driver by the injured claimant’s legal counsel, on his behalf, included putting up posters, placing advertisements in a local paper and posting on Kijiji. This occurred approximately 1 month after the accident.
The trial judge ultimately dismissed the claim because he did not satisfy the statutory duty to identify the other driver imposed on him by Section 24(5) of the Insurance Vehicle Act. In dismissing the claim, the trial judge stated:
[93] I have been at pains, thus far, to explain why both of the plaintiff’s actions fail on the merits. But before I finish I will address the “hit and run” issue. The defendant in the action concerning the first accident is ICBC. This is because the driver who bumped into the plaintiff at the Saanichton McDonalds was never identified. ICBC’s primary argument is that I should dismiss the action because the plaintiff did not make all reasonable efforts to identify the other driver as required by s. 24(5)(a) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.
[94] As I said earlier, I accept the evidence of the ICBC witnesses concerning what the plaintiff told them shortly after this minor mishap. I reject the plaintiff’s trial testimony denying it, along with his imputation that the ICBC witnesses must have been lying to please their employer. I find that the plaintiff’s declarations over the telephone were recorded contemporaneously and accurately. I am satisfied that no such record would have been created if the declarations had not been made. The plaintiff would not have uttered them unless they were true.
[95] I am thereby drawn to the conclusion that the plaintiff had ample opportunity to identify the other driver who, according to the plaintiff himself, got out of his car, spoke to him directly, explained his side of the story, and inquired after the plaintiff’s well-being. I have no reason to doubt, on all of the evidence related to this issue, that the other driver would have provided his licence and insurance information if only the plaintiff had asked for it.
[96] The plaintiff failed to do this, likely, in my opinion, because the incident was so trivial that he did not consider it necessary. He did not think better of it until the other driver had left the scene, reasonably perceiving that there was no reason for him to remain. By then it was too late. The licence plate number that the plaintiff jotted down was wrong. I repeat, as well, that he told the police that he had made no such note at the time.
[97] The plaintiff’s dereliction of statutory duty was not cured by steps taken by his counsel’s paralegal, in late February and early March, 2015, seeking information about the other driver by posting handbills at the McDonald’s, placing advertisements in a local newspaper, on Kijiji, and so on: see, in roughly analogous circumstances, Leggett v. Insurance Corp. of British Columbia, [1992] B.C.J. No. 2048 (C.A.). The burden of establishing reasonable steps rests with the plaintiff: Burley v. Insurance Corp. of British Columbia, 2003 BCSC 1837 at para. 7. He has failed to discharge this burden. It follows that judgment against ICBC is statute barred and cannot be given.
If you have been involved in a hit and run accident, it is essential that you obtain legal advice immediately to avoid the risk of the claim being denied by ICBC for failing to take steps to identify the unknown driver. Contact us for a free initial legal consultation.
