IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100902

Docket: M084632

Registry:
Vancouver

Between:

Philip Goncalves

Plaintiff

And

John Doe or Jane
Doe and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Harris

Reasons for Judgment

[1]            
The parties state a Special Case to answer the following question:

Did the plaintiff make all
reasonable efforts, as required by section 24(5) of the Insurance (Vehicle)
Act, R.S.B.C. 1996, c. 231, to ascertain the identity of the driver or
owner of the alleged unidentified motor vehicle (the “Unidentified Vehicle”)
involved in the collision on October 27, 2006 (the “Accident”)?

[2]            
The parties agree on the following facts, for the purpose of this
application:

1.       On
October 27, 2006, the plaintiff was driving a Coast Mountain Bus in the
eastbound HOV lane on Highway 1, near the Sprott Street exit when he was
involved in a collision with the alleged Unidentified Vehicle.

2.       The
driver of the alleged Unidentified Vehicle pulled over to the side of the
highway, approximately 1,500 meters ahead of the scene of the Accident.

3.       The plaintiff
pulled over to the side of the highway immediately after the Accident and just
in front of the scene of the Accident.

4.       The plaintiff
could not identify the type of vehicle or the license plate number of the
alleged Unidentified Vehicle.

5.       The plaintiff
did not approach the alleged Unidentified Vehicle to try to speak with the
occupants, or to try to identify it.

6.       The plaintiff
had been previously instructed by his employer Coast Mountain Bus Company to
remain with his vehicle in the event of an accident.

7.       The plaintiff
did not believe it would have been safe for him to walk along the highway from
his bus to the alleged Unidentified Vehicle.

8.       The
alleged Unidentified Vehicle left the scene of the Accident very soon after the
Accident.

9.       At no
point did anyone from the alleged Unidentified Vehicle approach the plaintiff
or try to communicate with the plaintiff in any way.

10.     The plaintiff
called his employer to report the Accident immediately after the Accident.

11.     The plaintiff
did not report the Accident to the defendant, Insurance Corporation of British
Columbia.

12.     The plaintiff
did not report the Accident to the police.

13.     The plaintiff
believed that his employer would report the Accident to the defendant Insurance
Corporation of British Columbia and to the police following the plaintiff’s
report to his employer.

14.     The plaintiff
did not follow up with his employer to see if they had reported the Accident to
either the defendant or the police.

15.     The plaintiff
did not post signs near the Accident scene seeking witnesses to the Accident.

16.     The plaintiff
did not place an advertisement in any newspapers seeking witnesses to the
Accident.

17.     The plaintiff
did not take any steps, beyond reporting the Accident to his employer, to try
and identify the alleged Unidentified Vehicle, its owner or the driver.

18.     The plaintiff
had not previously been involved in a motor vehicle accident involving a
vehicle whose driver and owner were unidentified.

[3]            
The parties agree that if the court finds that the plaintiff did not
make all reasonable efforts to ascertain the identity of the driver or owner of
the alleged Unidentified Vehicle, the court may dismiss the plaintiff’s action
against the defendants.

The Test — “All Reasonable Efforts”

[4]            
Under s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231, the Insurance Corporation of British Columbia (“ICBC”) may be the
nominal defendant and liable for damages to the plaintiff for damages from a
motor vehicle accident where the identities of the owner and driver of the
other vehicle involved are not ascertained.

[5]            
ICBC will only be liable as nominal defendant if the plaintiff has made
“all reasonable efforts to ascertain the identity of the unknown owner and
driver or unknown driver, as the case may be”: Insurance (Vehicle) Act,
s. 24(5).

[6]            
The appropriate test to determine whether all reasonable efforts have
been made is: Did the plaintiff do all that he would have to identify the other
parties involved if he intended to pursue legal action against them, if ICBC
were not potentially liable under s. 24 of the Insurance (Vehicle) Act?:
Leggett v. Insurance Corporation of British Columbia (1992), 72 B.C.L.R.
(2d) 201 (C.A.) at para. 13.

[7]            
The requirement to make all reasonable efforts is not limited to the
immediate aftermath of the collision. To satisfy this test, the plaintiff must
have made all reasonable efforts at the scene of the collision to identify the
other parties. The plaintiff must also have made all reasonable efforts to
identify the other parties in the days and, possibly weeks, that followed the
collision: Slezak v. ICBC, 2003 BCSC 1679, at para. 42.

[8]            
“All reasonable efforts” does not mean “all possible efforts”.
“Reasonable” means “logical, sensible and fair,” and does not mean “absurd,
whimsical or unwarranted”: Slezak at para. 40.

[9]            
Similarly, “not ascertainable” does not mean “could not possibly be
ascertained,” but instead means “could not reasonably be ascertained”: Leggett
 at para. 11.

[10]        
The plaintiff is not required to take an action to identify the other
parties that, while possible, is “highly unlikely” to produce any result: Liao
v. Doe, 2005 BCSC 431, at para. 14.

[11]        
“All reasonable efforts” includes a subjective aspect. In deciding
whether all reasonable efforts were made, consideration must be given to the
plaintiff’s physical and mental state at the time of the collision, and the
circumstances surrounding the collision: Holloway v. I.C.B.C. and Richmond
Cabs and John Doe, 2007 BCCA 175, at para. 13.

Analysis

[12]        
Were all reasonable efforts to ascertain the identity of the driver or
owner of the vehicle involved in the collision made at the scene of the accident?

[13]        
The only criticism ICBC made of Mr. Goncalves’ conduct at the
accident scene was that he ought to have driven his bus forward in an effort to
get closer to the vehicle involved in the collision so that he might have been
able to see the license plate number. It was suggested that there was some
opportunity for him to do this because the unidentified driver did stop and did
not leave the scene immediately. The suggestion is that had Mr. Goncalves
begun to drive forward, the unidentified driver might have waited and exchanged
information.

[14]        
I am not satisfied on the material before me that Mr. Goncalves
failed to make all reasonable efforts to ascertain the identity of the driver
because he did not drive his bus closer to the car. Mr. Goncalves followed
his employer’s policy in remaining with his bus. ICBC accepts that that was
reasonable in the circumstances and that Mr. Goncalves should not be
criticised for failing to walk towards the unidentified car. I take it,
although the agreed facts are not entirely clear on the point, that his
employer’s policy required him to stay with his vehicle at the accident scene. Given
that Mr. Goncalves was driving a bus and presumably had passengers on
board, it is reasonable that he should be required to remain with the bus at
the accident scene. Quite apart from considerations of passenger safety, a
proper investigation of the circumstances of an accident may require that the
vehicle remain where the accident occurred. Indeed, to move the vehicle may
prejudice a proper investigation.

[15]        
The thrust of ICBC’s criticism of Mr. Goncalves is directed at his
efforts to ascertain the identity of the driver after the accident. ICBC says
that Mr. Goncalves should have posted signs near the accident scene and
advertised for information. Moreover, it was unreasonable to rely on his
employer to report the accident to ICBC and the police and follow up with them
to determine whether they were investigating the identity of the driver and the
progress of that investigation.

[16]        
In the circumstances of this case, I do not consider that either posting
signs at the accident scene or advertising in the newspaper for witnesses or to
encourage the unidentified driver to come forward are steps that were
reasonably required to be taken. In my opinion, it is highly unlikely that
either of these steps would have produced any results.

[17]        
The accident occurred on a very busy stretch of freeway on which cars
travel at high speed. Travelling at speeds of approximately 100 km/h makes it
extremely unlikely that any witnesses would be able to observe or record a
licence plate number or be in any position to provide concrete information that
would allow the driver or vehicle to be identified.

[18]        
Moreover, it is not apparent that there is any safe location at which
signs could be placed. It is not reasonable to require signs to be placed on
the freeway itself. There is no reasonable basis to suppose that signs placed
at or near exits or entries to the freeway in the vicinity of the accident
would be seen by anyone who was a witness to an accident on the freeway itself.
In all probability, any witnesses to the accident would have driven long
distances and not have entered the freeway close to where the accident occurred.
In my view, it is so unlikely that placing signs would have elicited any
information to ascertain the identity of the car or driver that Mr. Goncalves
cannot be faulted for failing to do so.

[19]        
Many of the same considerations apply with respect to the utility of
posting an advertisement in a newspaper. It is most unlikely that any passerby
would have the opportunity to note the license plate or identify the driver. Even
if there were witnesses to the incident, it is improbable that they would have
had information that would have been of any assistance.

[20]        
It is also highly unlikely that the unidentified driver would have come
forward as a result either of a notice being posted or an advertisement placed
in the newspaper. The driver chose to drive off after having stopped some
significant distance from the scene of the collision. It must be assumed that
the driver was aware that he had been in a collision and that he stopped, at
the very least, to inspect his own vehicle. The unidentified driver did not
report the incident to ICBC. It is highly unlikely that he would have responded
to signs or advertisements.

[21]        
ICBC relies on the decision in Becker v. Insurance Corporation of
British Columbia, 2002 BCSC 1106 for the proposition that it would have
been reasonable to place an advertisement in the paper. In my opinion, the
reasoning in that case on this point does not assist ICBC. There the accident
occurred within the Municipality of Whistler in an area where considerable
local traffic could be expected. Placing an advertisement in a local paper
could likely have been effective.

[22]        
I am, however, of the view that it was unreasonable not to have reported
the matter to ICBC or to the police. Neither ICBC nor the police were given any
opportunity to investigate the incident. I do not think it can be simply
assumed that a report either to ICBC or to the police might not have led to an
identification of the driver. I have not been provided with evidence that ICBC or
the police lack investigative tools that might have yielded a result.

[23]        
There is a clear expectation that accidents will be reported both to
ICBC and the police. Indeed, there is a line of authority that establishes that
merely reporting to the police without more would not be sufficient to satisfy
the requirements of section 24(5): see, for example, Becker at paragraph
18. Usually, some kind of follow up with the police is necessary to determine
whether they are pursuing an investigation and the progress they are making
before reliance on the police to ascertain the identity of a driver or car is
reasonable: Becker at para. 18. In this case there was obviously no
follow up with the police.

[24]        
Given that it was unreasonable not to report the incident and follow up,
the question arises whether Mr. Goncalves had nonetheless acted reasonably
in relying on his employer and in assuming that they would take the necessary
steps. Had he done all he reasonably could in reporting the matter to the
employer and leaving it to them to make whatever further enquiries they
considered appropriate?

[25]        
In my view, relying on his employer does not shield Mr. Goncalves
from the consequences of his employer’s failure to act reasonably. I observe
that the statute imposes the obligation to make all reasonable efforts to
ascertain the identity of the unknown driver on the parties to the action. This
obligation is placed squarely on Mr. Goncalves. He is the party, not his
employer. Not only does the statute impose the obligation to take steps to
ascertain the identity of an unknown driver on him as the party, it does so in
respect of his cause of action. The employer is not a party to the action.
Mr. Goncalves is suing for compensation personal to him. I do not think it
is open to Mr. Goncalves to say that by relying on his employer he had
done all that he reasonably could, even though his employer had not done all
that was reasonable.

[26]        
Furthermore, Mr. Goncalves’ interest and his employer’s interest in
identifying the driver are not identical. The employer, unlike Mr. Goncalves,
may have no particular interest in identifying the driver nor is it under an
obligation to attempt to do so. Its interest may be focussed on other aspects
of the accident, such as passenger safety or employee fault. It was,
accordingly, not reasonable for Mr. Goncalves to assume that he could rely
on his employer to protect his personal interests in a potential personal
injury action. Mr. Goncalves had a personal obligation to follow up to
ensure that all reasonable steps were being taken to identify the unknown
driver. He did not do this.

[27]        
As I am satisfied that Mr. Goncalves did not make all reasonable
efforts to ascertain the identity of the unknown driver, ICBC is entitled to
the dismissal of this action and costs on scale B.

“Harris
J.”