When a person in British Columbia suffers injury from a motor vehicle accident, the injured party typically commences a claim against the party who caused the harm. In motor vehicle accidents, this typically means that a civil claim of personal injury is commenced against the owner and/or operator of the other vehicle involved.
However, if the injured party suffered injury in a hit-and-run accident, or the identity of the other party involved in the accident cannot, for whatever reason, be ascertained, the injured party generally commences a claim against the Insurance Corporation of British Columbia (the ‘ICBC’). Such lawsuits are generally commenced by specific provisions of the Insurance (Vehicle) Act, and failure to comply with the dictates of those provisions may, as illustrated by the case discussed below, be fatal to such a claim.
Two People Get into An Accident; Nobody Asks the Other Their Name
The recent Jaafar v Insurance Corporation of British Columbia case provides an excellent example of how one should proceed if one suffers compensable injury but cannot identify the other party to the accident that caused the injuries.
The plaintiff in the case had been involved in a rear-end collision while operating his motor vehicle in BC in March 2018. The plaintiff’s vehicle was the one that was rear-ended. In the immediate aftermath of the accident, the plaintiff was not in pain and was able to think clearly; he had not struck his head or any other part of his body as a result of the accident. The plaintiff exited his vehicle and spoke with the driver who rear-ended him, who he claimed took full responsibility for the accident and apologized for what had occurred. Despite this, the plaintiff failed to ask the other driver for his name or any information to substantiate his identity, largely because he was not hurt, the other driver did not appear to be hurt, and both of the cars exhibited only minor scratches as a result of the collision and the other driver had a 9-to-10-year-old child in the car with him.
The Plaintiff Begins to Feel the Effects of the Accident
Later in the evening, on the day of the accident, the plaintiff began to experience significant neck pain that he attributed to the accident. He attended a local hospital and later visited his regular family doctor, who suggested he make a claim against ICBC for his injuries. The plaintiff has continued to suffer significant neck pain in the years since the accident occurred and eventually underwent neck surgery to ameliorate his ongoing issues.
Approximately two months after the accident, the plaintiff posted several notices where the accident occurred, seeking witnesses who may have additional information or insight to provide or anyone who could identify the driver of the other vehicle involved in the accident. Unfortunately, his fliers yielded no information that could help the plaintiff to identify the other driver. As such, the plaintiff eventually commenced a claim for damages for the injuries suffered in the accident, for which he named ICBC the nominal defendant, given that he could not identify the other driver involved in the collision.
Can ICBC Be Named a Defendant in a Personal Injury Action?
Under section 24(5) of the Insurance (Vehicle) Act, any person is entitled to commence a claim naming the ICBC as nominal defendant, so long as two criteria are first satisfied:
- The party bringing the claim has undertaken all reasonable efforts necessary to identify the unknown party to the accident
- Despite these efforts, the identity of the other person(s) has not been ascertained
Section 24 further dictates that a person who alleges to have suffered bodily injury as a result of an unidentified driver may claim damages against ICBC as a nominal defendant only if all of the following conditions have been satisfied:
- The loss or damage occurred on a highway in the province of British Columbia
- The injury suffered by the plaintiff arose out of the use or operation of a motor vehicle
- Both the names of the owner of the unidentified vehicle and the operator of said vehicle are not able to be ascertained by the plaintiff
Regarding the reasonable efforts to ascertain identity, the courts have determined that such efforts should be fair, logical and sensible but need not stray into absurd or unwarranted territory. Moreover, no plaintiff must undertake “highly unlikely” steps to yield any positive result nor “turn over every stone.” The plaintiff’s obligation is to be resourceful and resolute in identifying the unknown driver in the weeks and months after the accident.
Did the Plaintiff in This Case Satisfy All Criteria Necessary to Naming ICBC as the Nominal Defendant?
The court noted in this case that the first of the three criteria for bringing a claim against ICBC as a nominal defendant had been satisfied in that the accident occurred in the province of BC. Moreover, the second criterion, that the injury suffered be related to the use or operation of a vehicle was also satisfied in that the evidence tied the plaintiff’s neck injury to the occurrence of the accident.
However, ICBC contended that the third condition had not been satisfied because, had the plaintiff undertaken sufficient efforts, the identity of the other driver in the accident in which the plaintiff was involved was ascertainable. To that end, the court agreed that the plaintiff in this case had, immediately after the accident occurred, exited his vehicle, engaged in a cordial conversation with the other driver, and declined to ask for that person’s identity or vehicle information. There was nothing to prevent the plaintiff from asking the other driver for their information, particularly as they had purportedly admitted fault for the accident; rather, the plaintiff had simply chosen not to do so.
As a result, the court was satisfied that the identity of the unknown driver, in this case, was readily, easily ascertainable by the plaintiff at the time the accident occurred; the plaintiff had simply failed to take the appropriate steps necessary at the time because he did not believe, at that time, that he had suffered any compensable injury or damage. The court was further satisfied that the plaintiff had failed to take prompt steps to identify the unknown driver once he became aware of his injuries because it had taken him months to post notices at the accident scene. Finally, the posting of the signs, as a solitary measure, “did not meet the standard of the resolute and resourceful pursuit that would have been reasonably expected in the absence of the benefit of s. 24 of the Act.” As such, the claim was dismissed.
Vancouver Personal Injury Lawyers Assisting You With Your Personal Injury Claim
Injured in an accident? Don’t navigate the complexities of a personal injury claim alone. Meridian Law Group in Vancouver is here to provide experienced legal guidance and support. Whether your injuries are severe or minor, our experienced personal injury lawyers will fight for the compensation you deserve. Contact us online or by calling at (604) 687-2277.
