Section 24 of the Insurance (Vehicle) Act creates a statutory remedy for any bodily injury, death, or property damage occurs within British Columbia as a result of an unidentified motorist. The victim of a “hit and run” accident can bring an action for recovery against the Insurance Company of British Columbia. However, the right of action and recovery are subject to very specific conditions, notice requirements, limitations dates, and amounts. In order to recover damages from ICBC, the following conditions must be met:
- The incident must have occurred on a highway
- The bodily injury, death, or property damage must have arisen out of the “use or operation of a motor vehicle, and
- The names of both the owner and driver of the vehicle must not have been ascertainable, or if the owner is not liable, the name of the driver must not be known.
What is considered a highway?
A “highway” includes:
- All public streets, roads, trails, lanes, bridges, trestles, tunnels, ferry landings and approaches, and any other public way;
- Every road, street, lane, or right of way designed or intended for or used by the general public for the passage of vehicles; and
- Every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access to or is invited to.
Essentially, to determine whether a road is a “highway” the Court will consider how it was intended to be used, and whether it was intended that the public should have access to it. It is important to note that even if the road was intended to be private it will be considered a highway if the individual was invited to drive on it.
What is not considered a highway?
- Roads on Indian Reservations that are intended for occupants and those servicing the occupants, and not the general public
- Snowmobile trails
What does it mean to say that the “loss must arise from the use or operation of a motor vehicle”?
According to the Supreme Court of Canada, the “use or operation” includes all accidents that the common judgment in ordinary language “would attribute to the utilization of an automobile as a means of different forms of accommodation or service.” To be clearer, use implies human direction and includes some element of “control or dominion over the vehicle.” “Operation” is confined to the “physical acts or omissions of a person having control of the actual operation of driving the vehicle. The operator is the person normally seated behind the steering wheel.”
How can a plaintiff establish that the driver or owner of the vehicle was not ascertainable?
Under s. 24 of the Act it is clear that a claimant must make all attempts to identify the party who has injured them. This may include (but is not limited to) asking them to identify themselves, obtaining a police report, or posting signs.
What if the person liable for the injury was identified at the time of the accident but their information was subsequently lost?
According to the BC Court of Appeal in Linhares v. Insurance no claim can be made against ICBC if the party responsible was ever identified, even if their information was subsequently lost. For example, say Darren was hit by a driver while riding his bicycle, but was not terribly injured. Although the parties exchanged information, Darren lost the paper on which it was written. A few weeks later fine, he later developed a significant cognitive disorder and stutter which he believed was due to the accident. Darren could not then bring an action against ICBC, even though no longer had the driver’s information because at one time the driver was ascertainable. Similarly, if an action against ICBC was started because a driver or owner could not be identified, but the police later ascertain the culprit, the action against ICBC must be dropped.
If you intend to bring an action against ICBC, you must make every attempt to find the driver or owner of the unknown vehicle…
According to s. 24(5) of the Insurance (Vehicle) Act a court may not make a judgment against ICBC unless it is satisfied that the claimant, not ICBC, has made a “reasonable effort” to identify the unknown driver or owner. If the claimant had the opportunity to identify the party at the scene of the accident, and failed to do so, ICBC can not be found liable. As noted above, if Darren told the driver not to worry about leaving information because he was not injured, he could not turn around and later bring an action against ICBC if a condition developed. If however, Darren was in shock after the accident and could not identify the driver he will not be barred from making a claim against ICBC. To be in “shock” means the injured party was “surprised and confused at the scene” and does not require a medical certificate.
Courts have generally found the following efforts to be a “reasonable effort”:
- Reliance on a police investigation
- Providing names of witnesses
- Reliance on false information provided by a driver in order to evade liability
- Incorrectly recorded information, despite best efforts
“Reasonable efforts” were not found in the following circumstances:
- Failure to ask an unidentified motorist’s name
- Leaving the scene prematurely
- Placing advertisements in local news papers about the accident three months after the event
Are there limits to how much a plaintiff may recover in an unidentified driver situation?
Yes. Section 105 of the Insurance (Vehicle) Act maintains that the total recovery may not exceed $200,000 inclusive of all awards, interest, and costs.
Are there limitation periods to bringing a claim against ICBC?
Yes. There are both notice and limitiation periods. Generally, written notice must be given to ICBC as soon as possible. Failure to abide by the nice and limitation periods may result in an inability to collect from the insurance company. If you are considering bringing an action where the driver or owner of a vehicle cannot be identified you should speak with a lawyer to ensure you do not miss your opportunity.