Hit and Run – Am I Protected?

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by Peter Buxton, trial lawyer

Wham!

You just had a serious car collision and it was not your fault.  You pull your car over and search for your insurance papers.  You look up and see the other driver leaving the scene.  What do you do?

First, if you can get the licence plate number of the other vehicle do so.  Write it down, together with the make, model and colour of the other vehicle.

Then, call 9-1-1 and report the accident and tell the operator that the other driver left the scene.  Do not chase after the other vehicle, you may be dazed and not capable of driving safely.

Get out of your car and look around for anyone who may have witnessed the collision.  Speak with them and write down their name and contact information and what they saw.  You can give this information to the police and ICBC to help in the investigation of the hit and run.

If you are able, quickly prepare a diagram of the scene and how the collision happened.  This will also help the police and ICBC.

Am I Able to Make a Claim for My Injuries and the Damage to My Car?

If you were involved in a collision on a roadway in B.C. and you cannot determine the identity of the driver that caused the accident you may be able to claim compensation directly from ICBC.  Section 24 of the Insurance (Vehicle) Act provides for payment for damages for those who are victims of hit and run collisions provided that:

  1. the loss occurred on a highway in B.C.;
  2. the injury, death or property loss occurred during the use or operation of a motor vehicle, and
  3. the names of the owner and driver of the other vehicle are not ascertainable.

Section 24(5) of the Insurance (Vehicle) Act 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.

You will need to be aware of the time limitations for giving ICBC notice of the hit and run collision and the requirement that you take reasonable steps to determine the identity of the unknown motorist.  Reasonable steps can include putting a legible sign at the scene of the collision asking that witnesses contact you if they saw the accident and perhaps putting an advertisement in the local newspaper asking for witnesses to come forward.  Obviously you need to report the hit and run to the local police department so they can investigate.

Will ICBC Help Me to Identify the Other Driver and Tell Me About Section 24?

You cannot rely on ICBC to tell you of your obligations under Section 24, in fact in Fitger v. John Doe, Mr. Justice Meiklem commented that

[10]         Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116.

In Li v. John Doe, Mr. Justice Armstrong rejected the Plaintiff’s argument that ICBC had a duty to advise its insureds of the requirements of Section 24 and that failing to do so prohibits it from arguing at trial that the Plaintiff failed to take reasonable steps under Section 24.  He stated that

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

So, the good news is that you can make a claim directly from ICBC for compensation in a hit and run situation but, you must be very careful to follow the provisions of Section 24 requiring that you make reasonable effort to identify the unknown owner and driver.

If you are the victim of a hit and run accident and would like to have a free initial consultation regarding your claim and your right to compensation pursuant to Section 24 email me at pbuxton@panlegal.ca or call me at 604.372.4550.

 Visit my website at https://panlegal.ca/peter-buxton-qc

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