Hit and Run Driver Escapes and Injury Claim Dismissed Against ICBC

In an unfortunate turn of events this innocent injury claimant was denied compensation against ICBC in a hit and run car accident in Abbotsford, British Columbia(Morris v. Doe, 2011 BCSC 253). The claimant was injured in a motor vehicle accident at the intersection of South Fraser Way and Ware Rd. in Abbotsford when her husband was driving a pick-up truck . A vehicle, approaching from behind hit the rear end of their truck and bumped the claimant’s vehicle forward. The other driver fled the scene  after  indicating to the claimant’s husband he would pull over into an adjacent parking lot for the purposes of exchanging information.
Fault was an issue in the trial and the Insurance Corporation of British Columbia (ICBC) alleged the action must fail as the plaintiff failed to take all necessary and reasonable steps to establish the identity of the unidentified driver who caused the accident as required by s. 24(5) in the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Act”).
In denying the claim of this innocent injury victim the court apparently examined the jurisprudence on what constitutes reasonable efforts and claimed the  following to be principles:

a.       depending on the plaintiff’s condition at the scene of the accident, it may not be realistic to expect the plaintiff to obtain particulars as to the identity of the offending driver particularly where the plaintiff is in shock or confused or injured: Tessier; Hocaluk; Ingram v. ICBC (1994), 45 B.C.A.C. 218 [Ingram]; Holloway v. ICBC, 2007 BCCA 175, at para. 14; Larsen v. Doe, 2010 BCSC 333 [Larsen]; Becker v. ICBC, 2002 BCSC 1106 [Becker], at para. 20; Nelson at paras. 19-20

 b.       failure to record a licence plate number at the time of the accident when the plaintiff has the opportunity to do so or obtain information as to the driver’s identity, either personally or through the assistance of others, but does not take advantage of the opportunity amounts to a failure to take reasonable steps at the time of the accident: Burley at paras. 23-24; Watson v. Insurance Corporation of British Columbia, 2004 BCSC 1695 [Watson]; Cannon v. ICBC, 2005 BCSC 602;

 c.       simply notifying the police of the accident may not be sufficient to satisfy the requirements of s. 24(5): Tessier at para. 17; Becker at para. 18;

 d.       the Act does not put the responsibility to find the unidentified driver on the police; rather the responsibility lies with the plaintiff: Becker at para. 17; 

e.       where a plaintiff does notify the police of the accident, it is not reasonable for them to simply assume the police will make the necessary inquiries without following up with the police and checking to see if there was an investigation and if so what progress was being made in it: Becker at paras. 17-18; Tessier at para. 17; Goncalves at para 23;

 f.        simply reporting the matter to the police and ICBC, without more, has led to the dismissal of a plaintiff’s action for failure to comply with the requirement of taking all reasonable steps to ascertain the identity of the driver: Meghji v. ICBC, [1998] B.C.J. No. 3107 (P.C.) (QL);

 g.       where the police attend the scene of the accident and take witness statements and indicate they are investigating the hit and run accident, it may not be necessary for the plaintiff to take any additional steps, depending on the circumstances: Hough v. Doe, 2006 BCSC 1450 [Hough], at paras. 16-17 & 21; Ingram at para. 13;

 h.       a plaintiff placed in a position of danger at the time of the accident cannot be expected to remain in that position to obtain details of a licence plate and movement to a position of safety before trying to obtain any licence information does not constitute a failure to take reasonable steps at the scene of the accident: Nelson at paras. 19-20;

 i.        posting signs in the area of the accident and/or advertising in local newspapers in an effort to find witnesses within a reasonable time after the accident where the accident occurs at a busy intersection is a reasonable and expected step as it is possible that someone present at the time of the accident could be of assistance in ascertaining the identity of the driver of the vehicle that left the scene: Johal v. ICBC (1992), 9 C.C. L.I. (2d) 172 [Johal]; Fan v. Doe, 2009 BCSC 568 [Fan]; Nelson at paras. 21-22; Godara at paras. 51-54; Tessier at para. 17; Halfyard v. ICBC (1993), 26 C.C.L.I. (2d) 320 [Halfyard];

 j.        failing to post signs at the scene of the accident or place advertisements in the newspaper in a timely manner or in a manner that provides insufficient detail where it is possible that there were potential witnesses who may have information about the accident will result in a denial of coverage under s. 24 of the Act: Johal; Fan; Burley; Becker; Nelson at paras. 21-22; Jennings v. ICBC, 2002 BCSC 341;

 k.       repeatedly canvassing regular patrons of the business where the plaintiff’s vehicle was damaged in the parking lot of the business may constitute reasonable steps to ascertain the identity of the driver: Janzen v. Insurance Corporation of British Columbia, 2004 BCPC 437;

 l.        posting signs and advertising in local newspapers may not be a reasonable step where the accident occurs on a high speed area of highway or a on highway in an area that is undeveloped and sparsely populated: Hough at para. 24; Goncalves at para. 16-21;

 m.      once it is found that a plaintiff acted reasonably in believing they had the information that would be required, such as a licence plate number, there is no onus cast upon them to undertake a highly speculative further investigation upon being advised they have the wrong license plate number: Smoluk v. ICBC (1993), 26 B.C.A.C. 23 [Smoluk]; Walker v. Farnel (1995), 36 C.C.L.I. (2d) 312, at para. 24;

 n.       a plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in a hit and run case where they rely upon information provided by the offending driver that subsequently turns out to be untruthful: Mudrie v. Grove, 2010 BCSC 1113, at paras. 33-36;

 o.       failure to follow up on directions to take additional steps such as posting signs for witnesses or advertising, once advised the recorded licence plate number is incorrect will result in a denial of coverage under s. 24 of the Act: Watson;

 p.       failing to make a timely report to the police and failing to follow up on available information from the scene of the accident such as information in the possession of ambulance personnel who attended the scene will result in a denial of coverage under s. 24 of the Act: Johal;

 q.       the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity: Tessier at para. 19.

 Of course after this long extensive list the judge goes on to say that the jurisprudence demonstrates what constitutes reasonable steps varies with the circumstances of each case.

 In the circumstances of this case the judge found that the claimant  took no other steps to try and ascertain the identity of the driver after calling 9-1-1 at the scene and reporting the matter to ICBC. The judge said the claimant therefore failed to make all reasonable efforts to ascertain the identity of the driver. Indeed, on the evidence before the Court, no efforts, let alone reasonable efforts, were made to ascertain the identity of the other driver in the days and weeks after the accident.

The injury claimant failed to prove she has complied with the requirements of s. 24(5) of the Act and therefore was not entitled to claim damages against ICBC directly under s. 24 of the Act. The lawsuit was dismissed and the ICBC was entitled to the costs of this lawsuit.
There seems to be a serious uncertainty in the law in BC when it comes to hit and run ICBC cases. I have reviewed the law including a claim where the hit and run claimant won the case and the judge in this case appears to completely ignore that decision of Judge Saunders wherein he states, “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.” There is now a Hugh gap between people who read a real “newspaper”  and people that read news online. Many people in our community would find it laughable that the court would expect people at fault to read the classified ads of a newspaper and therefore have notice of a claim. 
This case also makes one appreciate that the days that BC citizens could rely on the police to investigate car accidents are over. Little weight can be put on the reporting of a hit and run to the police because there is no longer an assumption that the police will investigate or make any reasonable effort whatsoever to apprehend the criminal. Posted by Mr. Renn A. Holness
Issue: should innocent victims of personal injury have to pay to post in print newspaper adverts to try and find an at fault hit and run driver?