Court rejects ICBC argument that failure to place signs at scene of accident fatal to hit-and-run claim

In reasons for judgment released today, the court in Rieveley v. Doe, 2017 BCSC 202, rejected ICBC’s argument that the plaintiff should be barred from pursuing a hit-and-run claim because the plaintiff failed to place signs at the scene of the accident advertising for witnesses to the crash.  The facts in Rieveley involved a major collision which took place on Nordel Way in Delta, BC. The collision was caused by two unidentified drivers.  The first unidentified driver swerved into an unidentified Semi-Truck, which then swerved into another vehicle’s lane, causing that vehicle to cross the double solid yellow line into oncoming traffic and collide head-on with the plaintiff.  The police attended the accident but were unable to ascertain the identity of both the first unidentified driver and the Semi-Truck driver.  After the accident the plaintiff reported the collision to ICBC and hired legal counsel, who placed advertisements in the Vancouver Sun on two separate days.  No other steps were taken to identify the guilty parties.  ICBC argued that the plaintiff had not taken “all reasonable efforts” to identify the unknown drivers as the plaintiff never placed signs advertising for witnesses at the scene of the accident.  In dismissing this argument, Madam Justice DeWitt-Van Oosten wrote as follows:

[30]         …the principal basis for ICBC’s opposition to the availability of s. 24 in this case…is its view that the plaintiff should have posted signs on Nordel Way seeking witnesses to the collision.

[36]         Were there other things that could have been done by the plaintiff?  Yes.  As demonstrated by the jurisprudence in this area, there often are (see para. 55 of Morris for a canvass of relevant cases and their diverse circumstances).

[37]         However, s. 24(5) does not demand that every conceivable effort be made so that a plaintiff can show, in fact, that it was not possible to ascertain the identity of the unknown owner or driver (Leggett, at para. 11).  What is required is that a plaintiff act “reasonably” in light of the surrounding circumstances, including the information known to him or her at the material time (Leggett, at para. 12).

[38]         In the circumstances of this case, I agree with counsel for the plaintiff that in making the submission that it does under s. 24(5) of the Act, ICBC brings a “hindsight analysis” to bear that places too “exacting” of an onus on this plaintiff.

[39]         No one seems to dispute the fact that posting signs at the place where the collision occurred would likely be impracticable, if not unsafe, because of the nature of the roadway at that location, the expected volume of traffic, and the speed at which the traffic generally travels.  Moreover, on my reading of the cases referenced by the parties, it is accepted that depending on the circumstances, signs placed on busy roadways with multiple lanes of commuting traffic, entries and off-ramps and not infrequent congestion may be less effective in generating witnesses than sometimes thought.  See, for instance, Goncalves at paras. 16–18.  In these situations, drivers will understandably concentrate on their lane of travel and managing the business of the traffic around them rather than the sides of the road and notices that are posted there.

[41]         If the event itself did not capture the attention of the commuting traffic sufficient to warrant someone stopping to assist, it is difficult to understand how a sign that is posted along the same route would do so.

[48]         In this case, there was no opportunity to approach the drivers of the silver car and semi-tractor and, more importantly, the plaintiff took positive steps to try to discover who was operating the offending vehicles.  He relied on others along the way, but he did not abdicate personal responsibility and assume that these same persons would do all of the work for him.

[49]         For the reasons provided, I find that the plaintiff has met the test for “all reasonable efforts” under s. 24(5) of the Act.  Accordingly, ICBC is appropriately named as a nominal defendant to this action and in accordance with the agreement reached between the parties, liability is found against ICBC.  The quantum of damages is to be determined separately and at a later date.

The text of the full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/02/2017BCSC0202.htm