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ICBC Loses Appeal of Hit and Run Personal Injury Case

Justice for hit and run victims


ICBC lawyer’s assertion that there is an expanded test of reasonableness was rejected by the Court of Appeal in this successful Hit and Run injury claim case(Nicholls v. Insurance Corporation of British Columbia, 2011 BCCA 422). Read my review of the original ICBC hit and run case
The injury claimant started a personal injury lawsuit  for injuries and loss arising out of an accident  in which he lost control of his motorcycle as he was travelling on an isolated stretch of Highway 7 between Kent and Mission, B.C.  The trial judge found that: 
(i)   the evidence of the geography of the area where the accident occurred indicated that there were no buildings within sight of the highway from which a witness might have seen the spill; 
(ii)   the accident occurred on an uphill S-curve on a road that had no shoulders where it would be dangerous for other users of the highway to stop and take note of a posted sign at the scene of the accident; and 
(iii)  given the isolated area of the highway where the accident occurred and the nature of the diesel spill, the chance of a newspaper ad proving successful was extremely remote.( para 37) 
The lawyer for ICBC contended that Leggett v. Insurance Corporation of British Columbia (1992), 72 B.C.L.R. (2d) 201 (C.A.) leave to appeal ref’d [1992] S.C.C.A. No. 558 created an expanded obligation on an injury claimant to “resolutely and resourcefully” make all reasonable efforts  to identify the unknown driver and owner of the offending vehicle.  The lawyer for ICBC argued that this expanded test is inconsistent with a claimant failing to take any positive steps to ascertain the identity of the unknown driver and owner.  In dismissing ICBC’s arguments the Court of Appeal pointed out, 

“[26] While some trial level decisions have held that notifying the police and ICBC, without more, does not meet the requirement of s. 24(5) (see for example Becker v. I.C.B.C., 2002 BCSC 1106 at para. 18, 4 B.C.L.R. (4th) 154), this Court has consistently stated that finding what constitutes “all reasonable efforts” is a question of fact to be determined on the circumstances of each case: see McMahon v. I.C.B.C., 1999 BCCA 612 at paras. 6-7, 130 B.C.A.C. 310; Slamaj v. I.C.B.C., 1999 BCCA 187 at para. 11, 124 B.C.A.C. 297; and Holloway v. I.C.B.C. and Richmond Cabs and John Doe, 2007 BCCA 175, 63 B.C.L.R. (4th) 203, leave to appeal ref’d, [2007] S.C.C.A. No. 261… 

[28]  There is no authority from this Court that would support the appellant’s position that the interpretation of s. 24(5) in Leggett has created an expanded test of reasonableness. The appellant relies on the following passage from the King decision (referred to in Leggett) to support its position: “whether the claimants ‘pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances’”. In my view this passage does not add anything to the obligation of a driver under s. 24(5), which is to make all reasonable efforts, in the circumstances, to ascertain the identity of the unknown driver and/or owner of the other vehicle.” 

 I particularly appreciated the clarification of the term “reasonable” in the following passage, 

“[33]  The issue of what constitutes all reasonable efforts is a question of fact that is subject to the deferential standard of review of palpable and overriding error. The term “reasonable” has been described as synonymous with “logical, sensible, and fair” and not including “absurd, whimsical or unwarranted”: Slezak v. ICBC, 2003 BCSC 1679 at para. 40. Thus, the question for this Court is whether the trial judge’s finding that the respondent’s limited efforts to ascertain the identity of the unknown driver/owner of the truck were reasonable (i.e., logical, sensible and fair) was supported by the evidence.” 

Posted by Mr. Renn A. Holness

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