This case describes what one is expected to do if they are involved in an accident resulting in injuries caused by a vehicle whose driver and or owner is unknown.
Just promptly reporting the accident to the police and ICBC may not be good enough if there is an injury claim.
Will try to summarize the case illustrating this and some suggested actions one should take in an accident involving a vehicle with an unknown driver and or owner.
As per the Motor Vehicle Act the person making the claim (Plaintiff) must make all reasonable efforts to ascertain the identity of the unknown driver/owner as a prerequisite to recovery from the Insurance Corporation of British Columbia (“ICBC”) as a nominal defendant.
In effect the plaintiff must be able to show that he/she made a reasonable effort to track down and identify the unknown driver or owner of the vehicle. Some of the actions that may be expected by ICBC are:
(1): Question potential witnesses in the area.
(2): Make inquiries of residents in the area.
(3): Post a sign in the vicinity of the area seeking witnesses.
(4): Post a classified ad in the newspaper seeking witnesses.
These seem to be minimal requirements and a bit dated. One could look for any video cameras mounted in the area. Due to the Privacy Act getting access to the footage probably requires jumping through some expensive legal hoops. Don't know if ICBC would assist with getting access?
One could also search the Internet in case it was a notable event in someone's day, a video or picture was taken and posted to their Internet page.
Failure by the claimant to investigate and try to identify the unknown driver or owner may be enough for ICBC to get the claim dismissed. If one had an opportunity to get the licence plate number and did not do so ICBC may have enough grounds to get the claim dismissed.
In this case a motorcycle rider accompanied by two other riders was driving uphill going through an S shaped curve. On one side of the road was a cliff face and on the other was a sheer drop off with a concrete barrier in front of it. This was an isolated section of the highway without any buildings or houses in the area. On the highway there was a two foot wide diesel spill that was about 0.5 to 0.75 KM long hidden by tree shadows. When the motorcycle operator's tires went onto the spill they spun out from underneath the bike. The motorcycle slid across the highway and hit the concrete barrier. The driver was injured.
It appeared the contractor responsible for this section of the highway had sanded part of the spill.
After the driver was taken to the hospital the accident was reported to the RCMP and ICBC. The oil spill was called into the contractor responsible for that section of the highway.
The driver (plaintiff) started an action for damages and named the highway contractor, the Provincial Crown and ICBC as a nominal defendant. ICBC responded with an application to dismiss the claim with the argument the driver had not made a reasonable effort to identify the driver/owner of the vehicle that caused the spill.
Actions listed by ICBC they felt were required for a reasonable effort were:
(a) ask questions of the sand truck operator as to whether he had any knowledge of the person(s) responsible;
(b) make inquiries of residents in the neighbourhood;
(c) post a sign in the vicinity of the accident seeking witnesses; and
(d) post a classified ad in any newspaper seeking witnesses.
The plaintiff responded (have summarized the responses):
(a): the contractor was contacted for information about who caused the spill and the contractor did not have any information.
(b): There aren't any residents in this isolated section of the highway.
(c): Posting a sign was decided against as slowing or stopping to read it in this section of the highway would be creating a dangerous situation that could lead to an accident.
(d): it was unclear which newspaper would be effective for covering this isolated area.
The judge rejected ICBC's application to dismiss the plaintiff's claim, finding:
The plaintiff was not in a position at the time of the accident, when he was injured and required medical treatment, to make inquiries as to the identity of the driver/owner of the truck that spilled the fuel.
The trial judge also found that:
(i) the evidence of the geography of the area where the accident occurred indicated that there weren't any buildings within sight of the highway from which a witness might have seen the spill;
(ii) the accident occurred on an uphill S-curve on a road without shoulders where it would be dangerous for drivers to stop and take note of a posted sign at the scene of the accident; and
(iii) given the isolated area of the highway where the accident occurred and the nature of the diesel spill, the chance of a newspaper ad proving successful was extremely remote.
The trial judge concluded that the additional efforts suggested by ICBC would not have been reasonable in the circumstances.
The judge noted the plaintiff through his counsel had contacted the highway maintenance contractor in an attempt to obtain information about the owner/driver of the vehicle that caused the spill.
Found it strange ICBC then decided to appeal the verdict. Did ICBC expect the plaintiff in order to comply with their suggested action (b) to have climbed up and down the rock faces in case there were local residents living in a hidden cave? If ICBC was certain there were residents in this isolated area couldn't one or more of their 258 underutilized employees (as per a recent report on ICBC) been sent out to check before going ahead with the appeal?
The Appeal Judges came to the same verdict and dismissed ICBC's appeal.
It wasn't mentioned what the size of the claim was but it's possible the legal fees ICBC paid out exceeded the claim. All paid for with our money. The time to bring this case to a conclusion was over 4 years from July, 2007 to Oct, 2011.
The link to the case follows:
http://www.courts.gov.bc.ca/jdb-txt/CA/11/04/2011BCCA0422.htm