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.
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.
