If I am injured in a hit-and-run, do I need to make efforts to identify the person who hit me? What efforts will suffice?
In a decision released today by the British Columbia Supreme Court, (Rieveley v. Doe, 2017 BCSC 202), the plaintiff was victim of a hit-and-run. He made a claim under s. 24 of the Insurance (Vehicle) Act, which provides coverage for victims of unidentified motorists. A summary trial ensued, to determine whether the plaintiff made “all reasonable efforts” to ascertain the identity of the owners or drivers who caused his injuries. If he had not, he would not be entitled to compensation from ICBC under the unidentified motorist coverage.
Madam Justice DeWitt-Van Oosten first summarized the relevant principles of law, noting that she must consider whether the “plaintiff has taken steps to identify the unknown owners or drivers “as resolutely and resourcefully as [he or she] would have done” in circumstances where claiming against ICBC as a nominal defendant was not an option (Leggett, para. 13, internal references omitted)”. In plain English, that means a victim of hit-and-run should behave as though there is no insurance policy to cover them if they fail to identify the offending driver – trying every reasonable means to identify them. Importantly, reasonableness is the standard of effort that must be taken.
She concluded that that the plaintiff had taken all reasonable efforts, then summarized the steps he had taken, and rejected ICBC’s arguments of what more he could have done – with hindsight being 20/20.:
[35] In the days following the collision, the plaintiff:
· reported the collision to his employer;
· reported the collision to ICBC;
· approached the police officer who attended the scene when he saw him the next day at his employer’s premises and specifically asked whether any witnesses had come forward. He was told no;
· he requested of his Brinks manager that he check the video footage from the cameras attached to the armoured vehicle to see if anything relevant was captured there. He was told that the footage was checked and nothing material had revealed itself;
· within a few weeks of the collision (September 2010), the plaintiff and Robert Cameron took steps to retain legal counsel to assist with an injuries claim;
· through discussions with this lawyer, it was understood by the plaintiff that advertisements would be placed in the Vancouver Sun and the Province newspapers to seek witnesses to the collision. Not unreasonably, he relied on the professionalism of this person in assuming it would be done;
· it was also understood that BCTV would be contacted to determine if there was helicopter footage;
· there was at least one follow-up conversation with the plaintiff’s first lawyer about the steps taken. The plaintiff learned through this conversation that the inquiries were made of BCTV and footage was not retained; and
· after making a claim for coverage through the Workers’ Compensation Board, a new lawyer began to advance the plaintiff’s claim, and in March 2011, a newspaper advertisement was posted seeking witnesses to the collision. This notice identified the date, time and location of the collision. It also stated that an “armoured truck”, a “silver car” and a “tractor unit” were involved in the collision, with the armoured truck having been struck by an oncoming vehicle. Although this advertisement was placed over six months post-collision, the involvement of an armoured vehicle is one of the unique features of the collision that ICBC says is something witnesses would remember if it was explicitly referenced.
[36] Were there other things that could have been done by the plaintiff? Yes. As demonstrated by the jurisprudence in this area, there often are (see para. 55 of Morris for a canvass of relevant cases and their diverse circumstances).
[37] However, s. 24(5) does not demand that every conceivable effort be made so that a plaintiff can show, in fact, that it was not possible to ascertain the identity of the unknown owner or driver (Leggett, at para. 11). What is required is that a plaintiff act “reasonably” in light of the surrounding circumstances, including the information known to him or her at the material time (Leggett, at para. 12).
[38] In the circumstances of this case, I agree with counsel for the plaintiff that in making the submission that it does under s. 24(5) of the Act, ICBC brings a “hindsight analysis” to bear that places too “exacting” of an onus on this plaintiff.
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Further publications about your rights following a hit and run crash:
Court ruling reveals the downside of legal technicalities
Many not aware about compensation for hit and run victims
Onus is on the victim to prove a hit and run crime actually occurred
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