When claimants seek compensation from auto insurers in hit-and-run accidents caused by unknown drivers, the courts will rigorously scrutinize the claimants’ attempts to identify unknown drivers — not only at the scene of the accident, but in the days following the incident as well, a new B.C. decision suggests.
“A claimant seeking compensation under the hit-and-run provisions found in the Insurance (Vehicle) Act in British Columbia and Motor Vehicle Accident Claims Act in Alberta must show they have taken reasonable investigative steps to identify the unknown owner/driver,” says Nathan Belsek of Brownlee LLP in a blog for Mondaq. “In each respective jurisdiction, a court will consider the claimant’s on-scene conduct as well as steps taken in the days following the collision.”
Belsek was commenting on the Supreme Court of B.C.’s June 10 decision in Eberhardt v. Insurance Corporation of British Columbia, in which the court dismissed an action against the province’s public insurer because it deemed the claimant had not done enough in the days following the incident to identify the culprit of a stray tire sitting in the middle of the highway.
Thea Analise Eberhardt was injured in a single-vehicle accident on the Trans-Canada Highway on Oct. 28, 2018, when she was driving south of Ladysmith B.C. She collided with a large truck tire resting on the roadway. She testified she was able to pull off into a gas station and check for damage. “The front end of her car was hanging off,” she told the court.
Since the tire’s owner was unknown, she claimed compensation for damage from the Insurance Corporation of B.C. under the law governing hit-and-run accidents caused by unknown drivers.
Approximately two months following the incident, Eberhardt’s lawyer placed classified ads in Victoria Times Colonist and the Nanaimo News Bulletin seeking witnesses to the event. The court found the claimant could have done more.
“The [claimant] did not contact any of the area’s RCMP detachments to determine if they had any information about a truck tire being in the roadway at the time of her collision. Neither did she make any inquiries of the Ministry of Transportation’s highway maintenance contractor for that location, to determine if they had moved the tire off the road or had had any reports of it.
“At a minimum, those are steps that she could have taken without any great effort on her part, even considering her personal circumstances.”
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The court added the claimant could have returned to the scene of the collision to see if the tire was still located there. For example, the tire could have been pushed off the road. Also, the court found, she could have posted messages on social media or posted signage in the vicinity of nearby residences and businesses.
“The [claimant] did none of these things,” the B.C. Supreme Court ruled. “As there were reasonable avenues of investigation open to the [claimant] which were not pursued, I cannot find that the [claimant] acted resolutely or made ‘all reasonable efforts’ within the meaning of [the province’s hit and run legislation].”
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The court found the claimant’s on-the-scene investigation was lacking as well, although it cut her some slack for her personal circumstances at the time.
In examination for discovery, Eberhardt said the incident occurred at about 7 pm. Her six-year-old son was in the back seat. It was dark and raining fairly heavily. There was a car ahead of her and a car behind her.
“For some distance prior to the collision, there had been a semi tractor-trailer travelling in the lane beside her,” the court decision states. “She saw the car in front of her swerve, and then she suddenly saw there was a large tire in front of her on the highway. She said it ‘kind of looked like it was moving a little bit, and then it fell down, and then I hit it.’”
After the collision, she saw a vehicle was stopped off to the right side of the highway. She didn’t know if the tire she hit had come from that vehicle. “I could barely see anything,” she told the court. “It was dark, and there was that truck in my way.”
She did not get the license plate number of the parked vehicle.
Instead, she drove on.
“All I can remember is that I needed to get my son home to bed, and I just continued driving home and phoned ICBC in the morning,” Eberhardt testified. “I could barely see anything. It was dark, and there was that truck in my way.”
Upon arriving home, she said, “I immediately put my son to bed and then passed out. I was very tired from driving all day and having been involved in the accident.”
Although the court’s decision didn’t turn on her lack of inquisitiveness at the scene of the incident, B.C. Justice Anthony Saunders found she could have done more to ascertain the unknown culprit at the time she hit the tire.
Eberhardt “could have taken steps that evening to locate the tire she had collided with and photograph it or record particulars of its type and dimensions, as well as the size and configuration of its steel wheel,” Sauders wrote. “Such information might very well have yielded clues as to the tire’s origin.”
She also might have gone back and made some effort to locate the vehicle she had seen parked off to the side, to determine if it had somehow been involved, the court added, suggesting she could have taken a picture of its licence plate.
“In the circumstances however, it being late and her attention being on her child’s well-being, I cannot find that her failure to take such steps was unreasonable. The focus therefore must be on the reasonableness of the steps she took in the days that followed.”
