11 May Hit and Run Collisions – Naming ICBC as a Nominal Defendant
Did you know that in the event of a hit- and-run collision, ICBC can be named as a nominal Defendant if the true perpetrator cannot be identified? It can be done – but few people know that before ICBC can be added as a nominal Defendant, the Plaintiff must make “all reasonable efforts” to ascertain the identity of the unknown driver or vehicle owner who caused the accident.
If the Plaintiff does not make all reasonable efforts to identify the Defendant, then ICBC can oppose being added as a nominal Defendant. If ICBC is not added as a Defendant, this would leave the injured Plaintiff with no one to sue or recover damages from.
The case of Rieveley v. Doe, 2017 BCSC 202, highlights the importance of making diligent efforts to ascertain the identity of the Defendant soon after the accident.
In that case, the Plaintiff was driving an armored Brinks truck on a busy highway when an unidentified silver car changed lanes abruptly. Several vehicles had to take emergency action to avoid a collision, causing these vehicles to collide with the Plaintiff’s armored van. The unidentified silver car responsible for causing the collision left the scene, and the driver was never identified.
The issue at trial was whether the Plaintiff had made all reasonable efforts to identify this driver so that he could claim against ICBC as a nominal Defendant.
After the accident the Plaintiff reported the collision to ICBC and his employer, asked the police officer investigating the accident whether any witnesses had come forward, had his manager check the video footage on the armored vehicle to see if it captured anything relevant, hired a lawyer who placed advertisements in local newspapers, and contacted local media stations to see if they had obtained any footage of the accident.
ICBC argued that because the Plaintiff had not posted notices along the route asking for witnesses of the accident to come forward, he had not done enough to identify the unknown Defendant and should therefore be precluded from naming ICBC as a nominal Defendant.
The Court noted that given the nature of the collision there was little, if any, opportunity for the Plaintiff to make detailed observations of the offending vehicle before it left the scene. The Plaintiff had undertaken numerous efforts to identify the Defendant vehicle, including reviewing surveillance footage, making inquiries of the police and news stations, and placing an advertisement in the newspaper. ICBC’s suggestion that the Plaintiff put up signs along a busy stretch of highway was unsafe, as well as impracticable. The nature of the roadway meant that traffic travelled at a high rate of speed and drivers in that area would be focused on the traffic around then and not on signs posted on the side of the road.
The Court stated that a Plaintiff is expected to make reasonable efforts to identify the Defendant, not extraordinary efforts. The Court held that the Plaintiff had made all reasonable efforts to identify the true Defendant and as this Defendant was never identified, ICBC was named as a nominal Defendant to the action.