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Further to yesterday’s blog post about what to do following a hit and run car accident a decision was given yesterday in Kamloops that was critical of the way ICBC handles hit and run cases.  In that case the plaintiff had contacted ICBC very soon after the hit and run accident and “essentially took the actions suggested by the ICBC claims adjuster.”  In its defense of the claim, ICBC argued that the plaintiff had failed to take all reasonable steps to identify the other motorist.   An application was brought by the plaintiff to have this defense struck on the basis that he had relied on ICBC’s guidance.  The judge declined to do so but in the process made some comments that were critical of the manner in which ICBC deals with these types of cases and in particular of the practice of not telling plaintiff’s their obligations in hit and run type accidents.  Specifically the court said as follows:

[10]  Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon.  I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if a settlement is not reached…

[17]  In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligations was ill advised from a public interest perspective.  To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective…

This decision provides a great example of the obligation on the part of a plaintiff in a hit and run accident and the lack of obligation on the part of ICBC to bring this to the motorist’s attention.  Although our courts may be critical of ICBC and the way that they handle these types of cases, this does not eliminate the potential defense that you have not done all that is reasonable to identify the other motorist.

You can read the Fitger v. John Doe decision here http://www.courts.gov.bc.ca/jdb-txt/SC/15/18/2015BCSC1855.htm