Can I recover damages when I am injured in a car accident but am unable to identify the driver?
You are crossing the street at the crosswalk of an intersection in which you have the right of way when all of a sudden you are blind-sided by a vehicle that should have yielded to you. After the collision, you are left dazed on the ground. To your surprise, the driver of the vehicle that hit you did not stop after the accident. Perhaps the driver drove off without noticing that he or she hit you or perhaps the driver drove off with the intent of avoiding any liability that may arise from the collision.
You decide to contact ICBC to try and recover for injuries that you have sustained as a result of the accident. Recovery for hit-and-run accidents is governed by s.24 of Insurance (Vehicle) Act. This section allows for the injured party of the hit-and-run to recover against ICBC despite not being able to identify the driver.
For you to succeed in your claim against ICBC as the victim of the hit-and-run you should be aware of your obligations under this section. This section mandates that the victim contact ICBC within 6 months of the accident and the victim must have made all reasonable efforts to identify the unknown driver. If the victim of the hit-and-run fails to perform either of these tasks, the victim’s claim will be dismissed.
What entails reasonable efforts has been a highly litigious issue. Some common ways of meeting the rigours of the reasonable efforts test are posting signs near the accident scene, adverting in the local newspaper, inquiring with any residences or business near the accident scene, contacting ICBC and contacting the Police. What constitutes reasonable efforts is highly fact specific and each case will be decided on its own peculiar set of facts.
An example of the court’s interpretation of reasonable efforts:
Nicholls v Emil Anderson Maintenance Co., 2011 BCCA 422
This case involved an accident where a motorcyclist lost control of his vehicle because of an oil spill on a fairly isolated part of the highway. The spill had been partly sanded by the road maintenance crew before the accident.
The efforts by the plaintiff to find the unidentified motorist included reporting to ICBC, reporting to the police and asking the highway maintenance crew for information. ICBC suggested to the court that the plaintiff could have done more by posting signage, making inquiries with residents of neighborhood or posting in the local newspaper.
The court defined the reasonable efforts test as “one of reasonableness that takes into account the subjective position and condition of the plaintiff in determining what efforts are reasonable in the circumstances.”
The court decided that reasonable efforts were made by the plaintiff in the circumstances because the incident was not temporally linked with the negligence (diesel leak), there were not likely any witnesses to the negligence, there were no buildings or walkways near the accident site, there were no areas to really make or post signs and newspapers would be of no use because of the isolated area in which the accident occurred.
This case demonstrates that reporting to police and ICBC alone can be sufficient under those circumstances where the other ways of meeting the requirements of s. 24(5), like posting signage, are shown to be exercises in futility.