Hergott: ICBC fails at dismissing claim

Lawyer Paul Hergott’s latest column regarding ICBC

ICBC tried to have an innocent victim’s claim dismissed, arguing he didn’t do enough to try to identify a hit and run driver. This time they failed.

But in other cases they have succeeded, stripping injured victims of fair compensation for their injuries and losses. Learning about steps you must take to protect your rights as a hit and run victim can help avoid that happening to you or someone you care about.

The court decision is Ghuman v. ICBC, 2019 BCSC 3 .

ICBC’s liability insurance monopoly in British Columbia contributes to uncertainty about hit and run claims.

All British Columbia owned vehicles must carry a base amount of liability insurance with ICBC. Liability insurance transfers the responsibility for compensating a victim from the offending driver to their insurance company.

Unless an out of province vehicle is involved, your right to fair compensation for injuries and losses is transferred to one and only insurance company, ICBC.

That has led to the general public referring to compensation rights as being “ICBC claims”, blurring the technical reality that the root of the claim is against the offending driver. And that unless you identify that offending driver, there can be no claim.

No claim except for a particular legislative provision, section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 .

That provision is what allows you to pursue a claim directly against ICBC even if you cannot identify the offending driver. But that right comes with a proviso in subsection five, which requires that “all reasonable efforts have been made by the parties to ascertain the identity” of the offending driver and vehicle owner.

The Ghuman case is an example of how ICBC will second guess whatever steps you have taken, hoping to convince the court that you haven’t taken “all reasonable efforts”.

Mr. Ghuman had been the third vehicle in a stopped line of traffic waiting for a light to turn green.

It was dark, within a large commercial area with little traffic, large surrounding parking lots and far distances to surrounding street corners and businesses.

When the light changed, he heard a noise that sounded like tires screeching and the vehicle directly in front of his quickly reversed colliding with the front of his vehicle. The offending driver then sped off.

It happened quickly and unexpectedly. Mr. Ghuman was unable to memorize or record the license plate before the vehicle took off. And he was able to provide only a general description of the offending vehicle.

The lead vehicle in line left the scene.

Mr. Ghuman looked around but did not see any potential witnesses to approach and no one approached him.

He didn’t call the police right away, because he had no license plate, no specific details of the offending vehicle and nothing of potential witnesses. He thought it unlikely that the police would have taken any steps to investigate this low impact hit and run collision. Instead, he called the police the next day as he thought was required in a hit and run collision.

That was one of the things ICBC second guessed in the case. They also said Mr. Ghuman should have done more to canvass for witnesses at the scene. But their primary argument was that he should have called the police at the scene, though they allowed that it would also have been reasonable to call the police when he got home that evening.

Within a week after the collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the collision occurred. After he retained a lawyer, an advertisement seeking witnesses was placed in the local newspaper.

Mr. Ghuman notified ICBC about the hit and run collision the day after the collision. They could have given him a list of steps they wanted him to take at that time. But they waited until later to argue that he should have done more.

ICBC said he should have followed up with the police. And that he should have gone around to the businesses in the commercial complex looking for potential video recordings or notes of witnesses who might have come forward to those businesses.

Given the distances of the surrounding businesses from the scene of the collision and the layout of the area, the judge accepted there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses, noting that such efforts would be highly unlikely to produce any results.

The judge deciding the case cited case law for the proposition that “the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a ‘plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time’.

Thankfully, justice was served with a rejection of ICBC’s application to dismiss Mr. Ghuman’s claim.

How can you best protect yourself in a hit and run claim? Next week I will provide a roadmap of steps that should be taken at the scene, and in the days and weeks following, to do just that.

Missed last week’s column?

Hergott: Safe driving behaviours

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Jocelyn’s Jottings: Scared by my latest hydro bill

Luckily I have set up an equal payment plan with BC Hydro… Continue reading

Snow, snow and snow for Revelstoke

The white stuff will continue to fall into next week

Revelstoke already double last year’s snowfall

The city is just below halfway to the snowiest winter on record

Have your say on what it takes raising toddlers in Revelstoke

The study started collecting data last summer and is expected to continue until at least May

Canada to bolster screening of central China passengers for virus at 3 airports

Additional measures will include messaging on arrivals screens in Toronto, Montreal and Vancouver

B.C. town spends $14.14 per resident for snow removal in one month

Costs of snow removal to the Town of Princeton skyrocketed in December.… Continue reading

PHOTOS: Eastern Newfoundland reeling, search underway for missing man after blizzard

More than 70 centimetres of new snow fell overnight, creating whiteout conditions

Prince Harry, Meghan to give up ‘royal highness’ titles

‘Harry, Meghan and Archie will always be much loved members of my family,’ says Queen Elizabeth II

Photo reminds Salmon Arm resident of connection to former drama teacher Justin Trudeau

Prime minister remembered as being as a funny, larger-than-life person

Province says it is monitoring AIM’s road maintenance

The provincial transportation ministry is working closely with new road contractor AIM,… Continue reading

B.C. society calls out conservation officer after dropping off bear cub covered in ice

Ice can be seen in video matted into emaciated bear cub’s fur

Calls for dialogue as Coastal GasLink pipeline polarizes some in northern B.C.

Coastal GasLink is building the 670-kilometre pipeline from British Columbia’s northeast to Kitimat on the coast

Coquihalla, Highway 3 to be hit with freezing rain, sparking warning to commuters

Hard to say when the freezing rain will turn to regular rainfall, Environment Canada says

Most Read