31 Aug Hit & Run Drivers and Your Obligations
If you are involved in a hit and run accident, you have to try to find out the identity of the driver who left the scene. You have a statutory obligation under the Insurance (Vehicle) Act, R.S.B.C. 1996, c.231, to make “all reasonable efforts to ascertain the identity of the unknown owner and driver”. If you don’t, ICBC may use your lack of action against you at trial.
In the case of Fitger v. John Doe, 2015 BCSC 1855, the Plaintiff was involved in a motorcycle collision caused by a hit and run driver. The unidentified driver allegedly came around a curve in the Plaintiff’s path of travel on a secondary dirt road, forcing him to swerve and upset his motorcycle on loose gravel. The hit and run driver then carried on without stopping.
In the days and months following the accident, the Plaintiff complied with ICBC’s requests to help them find the unidentified driver by putting up signs. He also took additional action on his own initiative and continued to be in regular contact with ICBC. Even so, ICBC argued that he didn’t do enough, soon enough.
The Judge was satisfied on the evidence that the Plaintiff made all reasonable efforts after the accident date to ascertain the identity of the unknown driver. He stated that ICBC could not claim that the Plaintiff’s efforts were not sufficient, 1.5 years later.
However, the issue of whether or not the Plaintiff should have started looking for the hit and run driver on the day of the accident was to be decided by the jury at trial. The Plaintiff wanted ICBC to be prevented from arguing this at trial because he didn’t know at the time that he should make efforts to find the unidentified driver. The Judge agreed with ICBC on this issue.
The Judge stated:
 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.
The Judge found that ICBC’s failure to inform the Plaintiff of his obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his inaction on the day of the accident and then to surprise him by pursuing a s. 24(5) defence was unfair from the Plaintiff’s perspective. However, that unfairness did not amount to conduct that should prevent ICBC from arguing this at trial.