In the personal injury appeal of Takhar v. Insurance Corporation of British Columbia, 2024 BCCA 275, the appellant sought an award for injuries sustained in a motor vehicle accident. The appellant was sideswiped by an unidentified vehicle while driving. Since the other driver could not be identified, he named the Insurance Corporation of British Columbia (ICBC) as a defendant under s. 24 of the Insurance (Vehicle) Act, which allows for actions against ICBC as a nominal defendant when the other driver’s identity is unascertainable. The trial judge dismissed the lawsuit on the grounds that the claimant did not make “all reasonable efforts” to identify the other driver, as required by s. 24(5) of the Act.
Reasonable Efforts Under s. 24(5) of the Insurance (Vehicle) Act
The primary legal issue was whether the claimant made all reasonable efforts to identify the other driver. The trial judge concluded that he had failed to meet this requirement, noting that he did not stop immediately after the accident or attempt to identify the other driver. The judge found that the claimant was not credible, focusing on the inconsistencies in his testimony.
Subjective Component of the Reasonableness Test
The Court of Appeal emphasized that the reasonableness test under s. 24(5) has a subjective component, which requires considering the claimant’s position and condition at the time of the accident. The trial judge did not sufficiently consider the appellant’s condition, including his claim of being in shock and suffering a concussion, which affected his ability to take immediate action.
Palpable and Overriding Error
The appeal court found that the trial judge ignored significant evidence supporting the claim of being injured and in shock. This evidence included medical diagnoses of a concussion, police notes, and witness testimonies about his post-accident condition. The failure to consider this evidence constituted a palpable and overriding error. As Judge Horsman stated, “The judge’s error in ignoring relevant evidence was palpable, in the sense of being obvious. The error is also overriding because the evidence that was ignored may well have altered the outcome of the analysis. If, in fact, the appellant was injured and concussed in the Accident, this would provide important context for assessing the reasonableness of his actions in failing to immediately pull his vehicle over at the time of impact.”
The court of appeal did not endorse a two-stage analysis for assessing reasonable efforts, as proposed by ICBC. Instead, it maintained that the reasonableness of efforts must be evaluated holistically, considering both the immediate aftermath of the accident and subsequent actions.
The appeal was allowed, and the matter was remitted back to the Supreme Court for a new trial. The court did not make final determinations on liability or damages, recognizing that these issues should be reconsidered in light of all relevant evidence, including the appellant’s condition and efforts to identify the other driver.