No recovery in hit and run unless you make effort to find driver

In the recent decision of Greenway-Brown v. Kyung, 2018 BCSC 287, Ms. Brown sued in five actions for damages arising from five motor vehicle accidents on:  November 25, 2014 (MVA 1), Greenway-Brown v. Kyung; May 24, 2015 (MVA 2), Greenway-Brown v. Mackenzie; January 30, 2016 (MVA 3), Greenway-Brown v. Yang; March 28, 2016 (MVA 4), Greenway-Brown v. ICBC; and June 2, 2017 (MVA No. 5), Greenway-Brown v. Lee. The five actions were heard together, pursuant to an earlier order of the Court.  All the Defendants were represented by one counsel. The Defendants admitted liability for MVAs 2, 3, and 5, and denied liability for MVAs 1 and 4.

In addressing the fourth accident, which took place on March 28, 2016, Ms. Brown was driving her Jeep.  Her daughter, who testified, was riding in the front passenger seat.  Ms. Brown stopped at a red light, at the intersection of King George Boulevard and Highway 10, in Surrey.  She was intending to continue south on King George through the intersection.  It was about 9:00 p.m. Ms. Brown and her daughter testified that a vehicle hit the Jeep in the back of the Jeep.  That car then pulled up beside Ms. Brown’s Jeep and stopped parallel to the Jeep, on the passenger side of the Jeep.  Ms. Brown’s daughter got out of the Jeep to speak with the driver of the other vehicle.  He said something like, “Don’t worry, there is no damage.”  He left in his vehicle when the light changed. The Court found from the evidence:

1. Brown made no attempt to follow that vehicle. Instead, she continued driving her daughter to work.
2. Neither Ms. Brown nor her daughter photographed the other vehicle on their phones, or otherwise recorded the licence plate of the other vehicle.
3. One or both of them recalled only a few digits of the other vehicle’s licence plate. The daughter, who has dyslexia, said she was unable to recall the full number.  Brown herself did not get the number.
4. Brown or her daughter did not know the make or model of the other vehicle.
5. Brown or her daughter contacted the RCMP that evening and spoke with an officer.
6. Brown took no further steps to find out the name of the other driver or the ownership of the other car.
7. Six weeks later, her then lawyer told her that it was in her interest to post a sign at the intersection seeking witnesses to the incident, and to place an ad in a local paper. Brown then posted one sign at the site, but placed no advertisement.

In discussing the duties of someone involved in a hit and rum motor vehicle accident, the court opined:

[41]        Section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (“IVA”), extends to people involved in hit-and-run accidents a cause of action against ICBC.  Section 24(5) imposes an obligation on such plaintiffs.  It provides that:

Remedy for damage in hit and run accident

 

…

(5)        In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that

(a)        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

(b)        the identity of those persons or that person, as the case may be, is not ascertainable.

[42]        In discussing s. 24(5), quoted above, then s. 23(5), Taylor J.A. wrote as follows in paras. 9 and 10, in Leggett v. British Columbia (Insurance Corp. of), 1992 CanLII 1263 (BC CA)

 

… In my view the overall purpose of the section is to limit the exposure of the corporation to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be their own interests, and which, by virtue of the section, become the interests of the corporation.

10        The corporation’s exposure under the section is limited to claims brought by those who could not have ascertained the identity of the parties responsible. It does not, in my view, extend to claims by those who have chosen not to do so.

[43]        What constitutes all reasonable steps in the context of s. 24(5) is measured as follows, at para. 13 in Leggett:

I think that in essence the test is that which was formulated by Hinkson, L.J.S.C. (as he then was) in King et al v. A.G. (B.C.) (1968), 66 W.W.R. 223 (B.C.S.C.), following Rossiter v. Chaisson, [1950] O.W.N. 265 (Ont. H.C.). In the King case, which was decided under the then Section 108 of the Motor Vehicle Act, R.S.B.C. 1960 Chapter 253, the judge (at p. 226) held the appropriate test to be whether the claimants had “pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances” had there been no such provision. In order to accommodate the current statutory requirement in the present context, I would add, after the words “would have done in like circumstances”, the words “if the claimant intended to pursue any right of action which he or she might have arising out of the accident”.

[44]        In Johal v. Insurance Corp. of British Columbia, [1992] B.C.J. No. 1169 (S.C.), the Court held that the advertising must be done in a timely fashion.  Becker v. Insurance Corp. of British Columbia, 2002 BCSC 1106, adds that responsibility to find an unidentified driver is not with the police, but with the plaintiff.

 

[45]        I must conclude that the Plaintiff has failed in her obligations under s. 24(5) of the IVA.  The legislation is imperative.  Regrettably, the Plaintiff took almost no steps to comply with it, and must therefore be denied coverage.

Regrettably for Ms. Brown the Court found issues with her credibility and ultimately denied her coverage for the other four accidents as well. The major concern was there was a lack of causation on the three accidents where liability was admitted (i.e. the damages complained of were not held to be caused by the three accidents).

[57]        In summary, I have found that the Defendants named in accidents 1 and 4 are not liable to the Plaintiff.  With regard to accidents 2, 3, and 5, in which liability is admitted, I have found that the Defendants’ conduct was not the cause of any damages the Plaintiff has suffered.  There is no causal link, as a matter of evidence, between the Defendants’ conduct and the injuries and other losses complained of.  Additionally, in accordance with the analysis in Mustapha, the Plaintiff has not established causation, as a matter of law, between the Defendants’ conduct and the Plaintiff’s injuries and losses complained of.

[58]        The five actions are therefore dismissed.