Action against ICBC for damages from a hit and run accident dismissed due to lack of reasonable efforts made to identify the person(s) involved

Persons who were injured in a hit and run accident sued ICBC for compensation, but their claims were dismissed because they did not make reasonable efforts to identify the driver. They relied only on the police and did not post any signs or advertisements seeking witnesses or information for more than a year after the accident.

Insurance law – Automobile insurance – Unidentified motorist – Statutory provisions

Fearon v. John Doe, [2024] B.C.J. No. 2344, British Columbia Supreme Court, December 17, 2024, D.A. Crerar J.

Trial on the issue of whether plaintiffs fulfilled their statutory duty to make all reasonable efforts to ascertain the identity of an unknown driver who caused a collision with their vehicle and left the scene of the accident.

The plaintiffs brought an action against the Insurance Corporation of British Columbia (“ICBC”) pursuant to section 24 of the Insurance (Vehicle) Act, RSBC 1996, c 231, which allows a person to do so if a vehicle was damaged due to the use or operation of a vehicle on a highway, and any person has a cause of action against the vehicle driver or owner whose identity cannot be ascertained. S. 24 requires the person bringing the action against ICBC to prove to the Court that they took all reasonable efforts to discover the identity of the driver and/or owner, and the identity was not ascertainable.

The plaintiffs put their reliance on a brief and futile police investigation and took no steps themselves to discover the identity of the unknown driver for over a year. They then followed up with police and learned the investigation had not been successful, and subsequently hired a private investigator to put up signs and post an advertisement seeking witnesses and information, without results. The Court concluded that the plaintiffs’ efforts were too late and should have been done soon after the accident in order to be reasonable.

The Court dismissed the plaintiffs’ actions. The Court also expressed regret in reaching the conclusion, noting potential unfairness of the legislation.

This case was digested by Mark A. McPhee and edited by Steven W. Abramson of Harper Grey LLP and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please feel free to contact them directly at [email protected] or [email protected].