You’ve been involved in a Hit and Run Accident. What do you do?
You’ve
been in an accident, and before you have time to get the information from the
driver that hit you, or write down their licence plate number, the other driver
leaves the scene. What do you do now? In cases involving a hit and run,
if you want to make a claim for compensation, the Insurance (Vehicle) Act R.S.B.C.
1996, c.231 requires you to make “all reasonable efforts” to ascertain the
identity of the unknown driver.
Specifically,
section 24(5) of the Act states:
(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.
So
what does this actually mean? What do you have to do to show you’ve taken
“all reasonable efforts”? There are many cases from the British Columbia
Supreme Court that address what steps need to be taken to satisfy this
requirement. The whole point of taking steps to identify the driver and
the other vehicle is of course so you know who to bring your claim against for
property damage or injury because of the collision. Common examples of
steps that the Court has found to be reasonable include
1) Interviewing witnesses and canvassing the neighbourhood for witnesses;
2) Canvassing local shops for surveillance cameras who may have captured the other vehicle on film;
3) Posting signs at the scene of the accident asking for people to call you if they saw the accident;
4) Re-visiting the scene of the accident at the same time of day to see if you can identify the vehicle;
5) Posting advertisements in the newspaper or online asking witnesses to come forward; AND
6) Contacting the police immediately and providing them with any and all information that may be used to identify the other vehicle.
1) Interviewing witnesses and canvassing the neighbourhood for witnesses;
2) Canvassing local shops for surveillance cameras who may have captured the other vehicle on film;
3) Posting signs at the scene of the accident asking for people to call you if they saw the accident;
4) Re-visiting the scene of the accident at the same time of day to see if you can identify the vehicle;
5) Posting advertisements in the newspaper or online asking witnesses to come forward; AND
6) Contacting the police immediately and providing them with any and all information that may be used to identify the other vehicle.
All of this seems
like a lot of work, and it is. The rationale behind section 24(5) of the Insurance (Vehicle) Act was set out by
the British Columbia Court of Appeal in Leggett v. Insurance Corporation of
British Columbia (1992), 72
B.C.L.R. (2d) 201, 11 C.C.L.I. (2d) 10:
[9]
The section provides a means by which a person who has suffered injury or
property damage in a motor vehicle accident may obtain compensation from the
government insurer even though the driver said to be at fault, and the owner of
the vehicle which was being driven by that person, are insured in another
jurisdiction or not insured at all, even though the corporation will, in any
event, be unable to look to the other driver for assistance in resisting the
claim, and even though the corporation will be unable to obtain reimbursement
in the event the other driver is uninsured or there has been a policy breach,
or to obtain contribution by way of increased premiums through forfeiture of
the other party's 'safe driving' discount. As the trial judge recognized,
protection against fraudulent claims is only one of the purposes of the
requirement that the claimant show inability to identify the other driver and
owner as a condition of being able to claim under the section. In my view the
overall purpose of the section is to limit the exposure of the corporation to
claims brought by persons who, in the matter of seeking to identify those
responsible for the accident, have done everything they reasonably could to
protect what ordinarily would be their own interests, and which, by virtue of
the section, become the interests of the corporation.
[10] The
corporation's exposure under the section is limited to claims brought by those
who could not have ascertained the identity of the
parties responsible. It does not, in my view, extend to claims by those who
have chosen not to do so.
[11] I do not
think the words "not ascertainable" should be strictly interpreted,
so as to mean "could not possibly have been ascertained". I think
they are to be interpreted with reference to subsection (5) so as to mean
"could not have been ascertained had the claimant made all reasonable
efforts, having regard to the claimant's position, to discover them".
Where a person knows that he or she has been involved in a motor vehicle
accident, but refrains even from recording the licence number of the other
vehicle, when that number is visible and the claimant could, had he or she
wished, reasonably have recorded it, such a claimant must, in my view, find it
particularly difficult, and probably impossible, to establish that he or she
made all reasonable efforts to discover the identity of the owner and driver of
that vehicle for the purposes of the section.
[12] The test
seems to me to be subjective in the sense that the claimant must know that the
vehicle has been in an accident and must have been in such a position and
condition that it would be reasonable for the claimant to discover and record
the appropriate information. But the claimant cannot be heard to say: "I
acted reasonably in not taking the trouble to find out".
[Emphasis in original.]
If
you can prove that you have taken “all reasonable efforts”, then you have a
valid claim with ICBC as nominal defendant for the unidentified vehicle.
However, what happens if you haven’t done anything to identify the other
vehicle, or only did one or two things to identify the vehicle? To be
safe, the more steps that you take the better, but in the decision of Mr.
Justice Saunders in Abdi v. Leigh, 2012 BCSC 2218, he interpreted the
Court of Appeal’s reasons in Leggett to mean the following:
[9] I do not find, on reflection, that
Justice Taylor's explanation of the purpose of the statute in that case assists
in determining ICBC's liability in a case in which the plaintiff has not made
reasonable efforts from a subjective point of view, but where at the same time
the court can be satisfied on evidence from other sources that the plaintiff's
failure to take such steps had no material effect; satisfied, that is, that
there is no reasonable possibility of ICBC having been prejudiced. That,
in my view, is the situation of the plaintiff in the present case.
He
goes on to state:
[20] It is, I find, sufficiently established
on the evidence that no witness saw or likely would have been able to see
anything that would have assisted in establishing the identity of the
driver. I therefore find that there is no reasonable possibility of the
driver's identity having been ascertained on the basis of the information that
was or reasonably ought to have been available.
[21] In Leggett, Mr. Justice Taylor said that the
purpose of s. 24(5) is to limit the exposure of ICBC to claims brought by persons
who have done everything they reasonably could to ascertain the identity
of the unknown driver. With the greatest of respect, that statement seems
to me to be as much a description of an effect of the statute as its
purpose. That formulation does nothing to reveal the purpose that lies
behind limiting recovery to such persons.
[22] It cannot have been an arbitrary
decision on the part of the Legislature to impose this limitation on the class
of persons entitled to bring unidentified driver claims. And surely, the
requirement was not put in place by the Legislature solely as a test of a
claimant's moral fibre, that is, their willingness to go to some lengths to
uncover information.
[23] In my view, it must be the case that
the deeper purpose of s. 24(5) is to ensure that there is no reasonable
possibility of ICBC being prejudiced through a claimant's inaction, either by
being exposed to a fraudulent claim, or by being deprived of the ability to
identify the responsible driver, or for any other reason. I find no such
reasonable possibility of prejudice in the present case.
[24] To look at the statute another way,
the requirement of reasonable steps being taken has both subjective and
objective components to it. The subjective aspect allows us to take into
account a claimant's personal circumstances. The objective aspect allows
us to account not only for the objectively reasonable behaviour of persons in
the claimant's circumstances, but also for the actual circumstances which were
beyond the claimant's knowledge but which the court now knows of through other
evidence.
[25] Given our knowledge of what the
witnesses in fact had to say, in my view it would be manifestly unfair to deny
the plaintiff a right of recovery against ICBC. I can see no legitimate
purpose that would be met in doing so. I find the requirements of
s. 24(5) to have been satisfied in this case.
In
short, despite the fact that the plaintiff in Abdi v. Leigh took essentially no steps to identify the vehicle
that caused the accident, Mr. Justice Saunders found that because there was
evidence from witnesses that there was another vehicle involved but they could
not identify it, even if Ms. Abdi had made “all reasonable efforts” to identify
the other vehicle, they would have been made in vain, and therefore the
requirements of s. 24(5) were satisfied.
It
remains to be seen if the reasoning of Mr. Justice Saunders will be carried on
in other decisions and his decision has not been cited in other decisions to
date, however, if his reasoning is adopted moving forward a critical
consideration of the Courts in the future should be whether or not the steps
taken by the plaintiff to identify the hit and run vehicle were likely to
result in the vehicle being identified.
As
it stands, to be safe and to ensure your rights are protected, if you are
involved in a hit and run collision the first thing you should do is contact a
lawyer to provide guidance specific to the circumstances of your case.
The requirements for “all reasonable efforts” based on cases in the past to
identify the other vehicle include the 6 steps listed above.
posted by Collette Parsons at
9:05 AM
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