Our Fort St John BC hit and run accident lawyers know it is not uncommon to hear on the Fort St John or Dawson Creek BC news or read in a North Peace BC news paper about a Fort St John BC hit and run accident – often with tragic consequences for a Fort St John or Dawson Creek resident.
However, not all Fort St John and Dawson Creek BC hit and run accidents have such tragic consequences for BC residents. In fact, hit and run type accidents are quite common- we have all been parked somewhere in BC and come out from wherever we were to find that our car or truck had been hit and damaged. In the worse case scenario, it is yourself that has been hit by someone and they have fled the scene.
What do you do if you are the victim of a BC hit and run accident?
Under Section 24 of the Insurance (Motor Vehicle) Act, ICBC is required to compensate you for death or for injury or for damage to a vehicle even if the at-fault motorist is unknown. This section of the BC Insurance (Motor Vehicle) Act gives victims the right to sue ICBC directly in certain circumstances. However, there are exceptions and limitations to this right the most important of which is that the victim of a BC hit and run accident has to give proper notice to ICBC that they intend to claim under section 24 otherwise their right to sue ICBC can be taken away. In a 2007 BC case, Mudrie v Grove, the BC plaintiff was involved in a rear-end collision. The plaintiff and the other BC driver exchanged information. Approximately one year after this BC rear-end collision the plaintiff attempted to locate the other BC driver. The results of the plaintiff’s search revealed that the other BC driver had provided misleading information as to his identity. In the plaintiff’s BC lawsuit they named the other BC driver and ICBC as defendants. ICBC brought a motion to dismiss the BC lawsuit on the grounds that to sue under section 24 a BC litigant must provide notice to ICBC within 6 months of the BC accident and that the plaintiff failed to comply with this requirement. Mr. Justice Saunders agreed and the BC lawsuit against ICBC was thrown out with the BC court noting as follows:
43 I conclude on the evidence that the plaintiff’s obligation to provide written notice to ICBC under s. 24(2) did not arise at the time of the accident. However, as I have found, the negative vehicle plate search results reported on June 5, 2008 must have led – quite reasonably – to the plaintiff apprehending the potential for an unidentified driver claim; otherwise, there is no explanation for the writ having been issued with pseudonymous defendants. In the words of the Supreme Court of Canada in Peixeiro, at that point, or very shortly thereafter, the plaintiff could reasonably have discovered that he had a cause of action against ICBC. I therefore find the plaintiff did have that obligation to notify ICBC as soon as reasonably practicable, within days of June 5, 2008. 44 The plaintiff argues that constructive notice of the claim was given thereafter on September 4, 2008, when ICBC was contacted to determine if it had any information regarding Mr. Grove. In my view, even if I could overlook the statutory requirement that notice be in writing, this contact was nowhere close to being sufficient to discharge the plaintiff’s obligation. There is no evidence of any indication having been given to ICBC that an unidentified driver claim might be pursued. 45 The only notice, written or otherwise, given ICBC in this case was the writ and statement of claim. I see nothing in the statute which precludes the pleadings themselves serving as the required notice under ss. 24(2). The purpose of the notice provision is to provide ICBC with sufficient opportunity to make its own investigation of the other driver’s or owner’s identity: Stelmock v. I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v. McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of the driver or owner will lead to a tort claim, relieving ICBC from direct liability. If those persons are insured by ICBC, it may eventually have to make an indemnity payment on its assureds’ behalf, but may possibly then have the potential of recouping some of its loss through adjustments to those assureds’ future premiums. In the case of an out-of-province driver, ICBC may of course avoid liability altogether. Given the potential for fraud in cases of alleged hit-and-run accidents, notice to ICBC will also enable it to investigate the circumstances of the reported accident to determine if the plaintiff’s claim has merit: Epp v. Harden Estate (1988), 24 B.C.L.R. (2d) 89, 31 C.C.L.I. 229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC receiving details of an accident through a writ, as opposed to discrete advance notification that a claim will be made. And in my view the writ with its attached statement of claim, in the present case, disclosed sufficient detail that service on ICBC alone would have met the notice requirement, if it had been done in a timely manner. 46 This brings us to the real question in this case: whether ICBC received notification of the claim, through the writ, within the time parameters given in the statute. The writ was not served until April 2009, ten months after the negative vehicle plate search. No explanation for this delay has been offered. 47 In respect of interpreting the notice requirement, the plaintiff argues that the legislative purpose behind the requirement is the same as that which lies behind the two-month notice requirement to municipalities under s. 286 of the Local Government Act, R.S.B.C. 1996, c. 323: the prevention of prejudice to the defence of a government body. It is argued that this court should direct its inquiry into whether ICBC has been prejudiced by the late notification; the logic of that argument is that ICBC cannot be presumed to have been prejudiced, when the trail left by “Mr. Grove” would already have gone cold by the time the plaintiff ought to have realized this was an unidentified driver case. The notice provisions of the two statutes are, however, entirely different. Under the Local Government Act, there is a blanket requirement that notice of claims falling within the ambit of s. 286 be delivered within two months, but subsection (3) specifically provides that the failure to give notice, or sufficient notice, is not a bar to maintaining an action if the court believes (a) there was reasonable excuse, and (b) the municipality has suffered no prejudice. In contrast, under the Insurance (Vehicle) Act’s s. 24, the obligation is to give notice as soon as reasonably practicable, and in any event – meaning, whether reasonably practicable or not – within six months. 48 If the prevention of prejudice could be said to be the dominant purpose of the notice requirement, it would appear that the legislature has either deemed there to be prejudice after six months has elapsed, or has otherwise determined, as a matter of policy, that ICBC’s exposure to such claims ought to be capped at that point. To subject that provision to an overarching, implied test involving the finding of real prejudice would be tantamount to rewriting the statute. The most that could be said is that a consideration of prejudice might, in certain circumstances, be implied by the qualifier “reasonably”. But even so, that cannot assist the plaintiff in the present case, when notice was not given to ICBC until long after the six-month period had lapsed. VIII. Conclusion 49 ICBC was not notified of this claim within six months of when the plaintiff could reasonably have discovered that he had a cause of action against ICBC. The claim against ICBC is therefore dismissed. The parties are at liberty to make written submissions as to costs.
In addition to providing early reporting to ICBC about a hit-and-run accident, you actually have to take steps to determine the identity of the at-fault BC motorist and the BC vehicle involved in the accident. Section 24 (5) provides that: (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. At a very minimum you must take the following steps to protect your British Columbia hit and run claim from being dismissed: 1. Place a sign at the accident scene looking for witnesses. 2. Place an advertisement in the local newspaper looking for witnesses. 3. Notify the police within hours of the accident, if possible. 4. Notify ICBC within hours of the accident, if possible; and 5. If the accident occurred nearby to some buildings, knock on some doors to see if there are any witnesses.
In other words, to prevent ICBC from attempting to have your case dismissed you need to be able to prove that you have in an attempt to identify the BC driver and BC vehicle involved in the BC accident. This area is complex and one of our lawyers can give you peace of mind by ensuring your claim is properly advanced. Call us today at 250-262-5052.