ICBC ought to include a warning

I have represented several clients involved in hit and run cases and in each case I have been routinely disappointed at what I perceive to be an unfair approach taken by ICBC. As it turns out, I’m not the only one that thinks their approach is unfair. In a 2012 decision called Springer v. Kee, Mr. Justice Armstrong for the BC Supreme Court acknowledged that ICBC is not obliged to warn the injured party of their obligations under the legislation but also said that “ICBC was, in my view remiss in their duty to inform the injured party about the steps necessary to perfect his claim” and that “It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.”

If you are involved in an accident, you are required to remain at the scene of an accident and to exchange information with the other drivers involved. This means that all drivers need to produce in writing, their name, address, driver’s license number, license plate number and if they are not the registered owner of the vehicle, the name and address of the registered owner. However, what happens if the other vehicle or driver involved in the accident takes off?

Section 24 of the Insurance (Vehicle) Act provides a remedy to a plaintiff for bodily injury in a hit and run situation provided certain criteria are met. Those criteria are that “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 the identity of those persons or that person, as the case may be, is not ascertainable.” Numerous cases have looked at s.24 and in particular what constitutes “reasonable efforts.” No two cases are alike and it has been repeatedly stated that what constitutes “reasonable efforts” will depend on the circumstances of each case. The Court must assess the plaintiff's reasonable efforts to identify the driver and owner both immediately after the collision, and in the days and weeks following the collision.

Why is this required? Well, one purpose of the legislation is to discourage those who have suffered injury as a result of their own negligence from making a false claim and blaming the accident on a phantom driver. Another is to make sure that the person who caused the accident pays the right insurance premiums.

So, to ensure that reasonable efforts have been made, you should take the following steps as soon as possible to try to identify the other driver in a hit and run accident:

• if you are in an accident, as soon as possible, try to get the other driver’s license plate number
• immediately contact the police to report the accident
• seek the names and contact information of witnesses at the scene of the accident
• speak to surrounding neighbours or businesses in the area to see if they have any information
• report the accident to ICBC
• put up signs or posters in the area seeking witnesses to the accident
• advertise in the local newspaper seeking witnesses
• any other action that you think might assist in identifying the other driver and vehicle involved in the accident
• contact a personal injury lawyer to find out what else you may need to do

Since we now live in the age of the smart phone, if the other driver is unwilling to provide information or you notice the other driver is about to take off, you should try to take a photo of the vehicle and license plate. Also, if possible, you should try to take a photo of the driver (ICBC has facial recognition software). If you don’t have a smart phone, at a minimum you should try write down the license plate number and a description of the vehicle and driver.

If you take all of the above steps you should be in a good position to make a claim for compensation for your injuries in a hit and run accident. It is important to note that even if you don’t think you have been hurt, it is CRITICAL to get the information about the other driver and vehicle involved. Many injuries aren’t felt immediately after the accident and if you don’t get this information you will not be able to make a claim.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.