IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110126

Docket: M116515

Registry:
New Westminster

Between:

Charles Anthony
Lort

Plaintiff

And

Elaine Ngnook Ling
Kwan, John Doe and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

[1]            
The plaintiff seeks damages arising from personal injuries suffered in
an accident that occurred on July 2, 2008 on West Broadway between Ash Street
and Cambie Street in Vancouver.

[2]            
The claim against the Insurance Corporation of British Columbia (is made
pursuant to s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c-231 (the
“Act”) on the basis that the accident was caused or contributed to by the
negligence of a driver whose identity is not ascertainable.

[3]            
John Doe is the unidentified motorist implicated in the accident (the
“UIM”). The owner of this vehicle is also unknown.

[4]            
Both defendants deny liability for the accident. ICBC seeks a dismissal
of the action on the basis that the plaintiff failed to comply with s. 24(5) of
the Act.

[5]            
This trial proceeded pursuant to an earlier order of the Court that
liability for the accident be determined prior to an assessment of damages.

The Plaintiff

[6]            
The plaintiff is a 57 year old accountant.

[7]            
He holds a Bachelor of Commerce Degree and Post Baccalaureate Degree in
History and is pursuing a designation as a Certified General Accountant.

[8]            
The plaintiff first obtained a motorcycle licence in 1972 and held it
continuously up to the time of the accident.

[9]            
On July 2, 2008, at the time of the accident, the plaintiff was driving a
1978 Harley Davidson motorcycle he had purchased in May 2008.

[10]        
The plaintiff had experience driving motor cycles. He owned and drove a
Honda 350 motorcycle and two BSA motorcycles between 1972 and 1978. At that
time he drove his motorcycles year round as his only mode of transportation.

[11]        
From 1978 until 2003 the plaintiff did not own a motorcycle, but he drove
motorcycles approximately twice per year.

[12]        
After 2003 the plaintiff did not drive a motorcycle until he purchased a
1978 Harley Davidson in May 2008. Between May 2008 and July 2, 2008 he drove
his motorcycle to work two to three times per week and on some weekends. He
estimated that he drove his motorcycle approximately 2000 miles between May
2008 and July 2008.

[13]        
After May 2008 he took several online motorcycle courses and practiced
his motorcycle driving skills at a Costco parking lot. He worked on slow speed
manoeuvres, including turning at slow speeds. He considered himself to be
proficient at operating his motorcycle on July 2, 2008.

The Defendant Kwan

[14]        
The defendant is a 47 year old office manager who resided on Bowen
Island at the time of the Accident. She had held a driver’s licence since she
was 16 years of age.

[15]        
Ms. Kwan was employed by a sound design company located at 5th and
Burrard in Vancouver. She had no set hours at her job but usually started work
at 7:30 a.m.

[16]        
At the time of the accident she was driving a 2008 MX5 Mazda she had
owned for approximately nine months.

The Accident

The Plaintiff’s Evidence

[17]        
At about 7:15 a.m. on July 2, 2008 the plaintiff was driving his Harley
Davidson motorcycle eastbound on West Broadway in the City of Vancouver. He was
on his way to work but was not in any hurry.

[18]        
As he passed through the intersection of West Broadway and Ash Street (one
block west of Cambie Street) the plaintiff was travelling in the right wheel
track of the centre lane of three eastbound lanes – the left lane, centre lane,
and right lane.

[19]        
There was ongoing construction work on the north side of Cambie Street
and in the intersection of Cambie Street and West Broadway. This construction
was affecting the flow of eastbound traffic.

[20]        
Although West Broadway is generally a very busy street at that time of
the day, the traffic was very light on the morning of the accident. The weather
was dry and clear.

[21]        
As the plaintiff passed through the West Broadway and Ash Street
intersection he noticed a sign about one-quarter to one-third of the way toward
Cambie Street indicating that there would be a merger of the left lane with the
centre lane, causing two lanes of traffic to merge into one. The plaintiff noted
safety pylons and new lane markings indicating the merger. He described the
road surface in his lane as rough.

[22]        
As the plaintiff travelled through the intersection of West Broadway and
Ash Street he noticed the Kwan vehicle in the centre lane in front of him. He
also noticed a small blue compact car, driven by the UIM, in the left eastbound
lane. After crossing through the West Broadway and Ash Street intersection the
plaintiff noticed that the UIM was not moving over into the centre lane. The
plaintiff was concerned that the Kwan vehicle might prevent the UIM from
entering the centre lane smoothly.

[23]        
The plaintiff said that as he crossed the West Broadway and Ash Street intersection
he became nervous that the east-west gap between the Kwan vehicle, in the
centre lane, and the UIM, in the left lane, was shrinking.

[24]        
The plaintiff noticed that the UIM was travelling slightly ahead of the Kwan
vehicle when it began to move from the left lane into the centre lane.

[25]        
He noted that the Kwan vehicle in front of him slowed down, sped up, and
then slowed again. He said that Ms. Kwan appeared to be driving erratically.

[26]        
As the Kwan vehicle slowed the plaintiff also slowed his motorcycle. He
described the gap between the Kwan vehicle and his motorcycle shrinking as the
former slowed. The plaintiff slowed his motorcycle at the same time, but realized
that there was a problem developing. He made a quick shoulder check to his
extreme right side and determined that there was no traffic in the right lane.
He began to move from the right wheel track of the centre lane to the left
wheel track of the right lane.

[27]        
The plaintiff said that the Kwan vehicle slowed to avoid contact with
the UIM and swerved into the right lane, eventually tagging or kicking out the
tire of his motorcycle causing it to fall over. His motorcycle came to rest
within the margins of the right lane.

[28]        
Ms. Kwan gave no signal of her intention to move into the right lane.

[29]        
The plaintiff said that although Ms. Kwan had slowed before crossing
into his lane, there was not enough time to do anything as she had changed
lanes too quickly.

[30]        
The impact on the Kwan vehicle was at the right rear corner of the
bumper; however, no damage was found. The only damage was to the left side of
the motorcycle. This damage was caused when the bike fell over onto its side.

[31]        
The accident caused a serious injury to the plaintiff’s left foot. He
had difficulty finding someone to help him call emergency personnel. Eventually,
the plaintiff spoke to two men who came to him from west of the accident scene.
He did not obtain names or any contact information from either person.

[32]        
Ms. Kwan stopped parked her vehicle in the right lane east of the
plaintiff’s motor cycle.

[33]        
The UIM pulled over and stopped in the right lane east of the Kwan vehicle,
but the plaintiff did not obtain any information from that driver or the
licence number of the car.

[34]        
The plaintiff said that he believed that the police took basic
information at the scene and also spoke with him at the hospital.

[35]        
The plaintiff was taken by ambulance from the scene to Vancouver General
Hospital and released later than morning. However, he received a call from the
hospital that afternoon indicating that he was required to return for further
investigation.

[36]        
The plaintiff did not post signs looking for help in identifying the UIM.
Although he did return to the scene of the accident some weeks late to take
pictures, he did not advertise in an effort to identify the UIM, nor did he question
any of the merchants in the busy commercial area. He did not make any enquiries
of the police. He said that he thought that the police were handling the investigation
of the accident. The plaintiff submitted a claim under the unidentified motorist
provisions of the Act.

Ms. Kwan’s Evidence

[37]        
Ms. Kwan suffered from a very poor recall of the events in question. In
an explanation of her inability to remember or recall details of the accident,
she made comments such as, “I did not realize we were going to get this far.” I
understood her to mean that she had not expected the litigation to proceed as
long as it has.

[38]        
Ms. Kwan described driving in the eastbound centre lane on West Broadway
at about 7:00 or 7:30 a.m. on July 2, 2008. She was “pretty sure” that she
stopped at the intersection of West Broadway and Ash Street. As she proceeded
eastbound she was surprised to see that the eastbound left lane of West Broadway
was directed to merge with the centre lane.

[39]        
Ms. Kwan did not see the UIM in the left lane as she travelled through
the intersection at West Broadway and Ash Street. She did not see the UIM until
it turned into her lane. She described the vehicle driven by the UIM as a pale
blue car and observed that the driver seemed surprised by the merger of the
left lane into the centre lane.

[40]        
As the UIM merged into Ms. Kwan’s lane she applied the brakes to avoid a
collision. She said that she touched or tapped her brakes just enough to let
the UIM in. She denied stopping suddenly, but was not entirely certain that she
did not stop. She did not recall looking behind to see if there was any traffic
in the right lane or behind her before she stopped. She did not feel any impact
from behind from the motorcycle. She did not honk her horn when the UIM began
to pull into the centre lane.

[41]        
Initially, Ms. Kwan denied swerving into the right lane before hearing the
sound of metal scraping behind her. Later in her evidence she said, “I don’t
think I swerved.”

[42]        
After the accident Ms. Kwan stopped her vehicle in the right lane about
one car length in front of the motorcycle. The UIM pulled over to the right lane
a few car lengths in front of the the Kwan vehicle, but drove off while Ms.
Kwan was speaking to the plaintiff.

[43]        
Ms. Kwan said that it was not until the accident had occurred that she
knew that the motorcycle was present behind her.

[44]        
There was no evidence of any damage to the Kwan vehicle.

[45]        
Ms. Kwan also identified two pedestrians who were at the scene at the
time of the accident. No names, addresses, or phone numbers were obtained from
these two people.

Witnesses

Debbie McMillan

[46]        
Ms. McMillan was a dial-a-claims adjuster employed by ICBC on July 2,
2008. At the time of the accident she had been an employee of ICBC for 12 years
and had worked as a dial-a-claims adjuster for 9 years.

[47]        
Ms. McMillan was asked to identify a telephone claims report, commonly
referred to as a CL-75, recording a report dated July 2, 2008 at 2:38 p.m. Ms.
McMillan indicated that the writing in the body of the CL-75 in the area
“Accident Details” was information she took from a telephone call received at
2:38 p.m. She interpreted the notes under “Accident Details” as indicating that
the plaintiff had reported to her that he was travelling eastbound on West Broadway
in the middle of three lanes. Another vehicle was directly in front of the
plaintiff and a third vehicle was in the far left lane. The vehicle in the far
left lane merged in front of the vehicle in front of the plaintiff. The
plaintiff reported slowing and starting to change to the right lane when the vehicle
in front of him stopped suddenly. His motorcycle struck the rear of the vehicle
in front of him.

[48]        
Mr. McMillan did not recall the plaintiff’s telephone call or the
information that is recorded on the CL-75. She relies on her general practice
of recording all information received from telephone callers as confirmation
that she would have accurately recorded the information given to her during the
telephone call from the insured owner. It is significant to note that in her
record of the plaintiff’s call, he did not mention being in the right lane at
the time of the accident or a vehicle swerving into the right lane moments
before the collision.

[49]        
This statement was put to the plaintiff as a prior inconsistent
statement of his recollection of the accident. He agreed that his memory of the
accident was likely better at the time he contacted Ms. McMillan. He said that he
told her what had happened at the time of the accident, but could not explain
why he appeared to have failed to  describe the Kwan vehicle swerving into his
lane nor of his vehicle striking the Kwan vehicle from behind.

Blaine Smith

[50]        
Mr. Smith was an ambulance paramedic who attended the scene of the
accident on July 2, 2008. He had been a paramedic for 13 years and was able to
identify a four page document which was a record completed by he and his
partner of their observations at the accident scene. This report was marked as
exhibit 1.3. Mr. Smith was able to confirm that he and his partner prepared the
patient care report in relation to the plaintiff’s accident. However, the
portion of exhibit 1.3 captioned “History of Chief Complaint” was completed by
Mr. Smith’s partner.

[51]        
Plaintiff’s counsel advised that his intention in referring the witness
to exhibit 1.3 was to rebut any suggestion of a recent fabrication of the
plaintiff’s complaint that this accident was caused by a vehicle which “cut in
front of him.” Those notes on exhibit 1.3 were not made by Mr. Smith.

[52]        
In my view the evidence from this statement does not assist me and I do not
take anything from the notes on exhibit 1.3 with regard to how the accident
happened.

The Issues

[53]        
The issues to be decided in this action are:

1.       Was
there a collision between the plaintiff and Ms. Kwan’s vehicle? If there was a
collision between the plaintiff’s vehicle and the Ms. Kwan’s vehicle, was the
collision caused or contributed to by the negligence of either defendant?

2.       If
there was no collision between the plaintiff and Ms. Kwan’s vehicle, did the
negligence of either defendant contribute to the plaintiff’s motorcycle
falling?

3.       Was
the UIM negligent in turning into Ms. Kwan’s lane of traffic, thereby causing
the plaintiff to take evasive measures resulting in the plaintiff’s motorcycle
falling?

4.       If
the plaintiff’s injuries were caused by a combination of the negligence of the UIM,
Ms. Kwan, or the plaintiff, what measure of liability should be attributed to
each of the parties?

5.       If
the UIM is found to be contributorily negligent, is the plaintiff disentitled
to recovery from ICBC as a result of his failure to comply with s. 24(5) of the
Act?

The Plaintiff’s Position

[54]        
The plaintiff argues that Ms. Kwan swerved to avoid the UIM and struck
the plaintiff’s motorcycle after it had moved from the centre lane into the right
lane. He says that the accident occurred due to Ms. Kwan’s failure to allow the
UIM to merge safely into the centre lane and her negligently failing to take
reasonable care when moving into the plaintiff’s lane.

[55]        
The plaintiff did not address the details or contribution of the UIM’s
negligence in the chain of events leading up to the accident.

[56]        
The plaintiff says that if I accept that the plaintiff collided with the
rear of Ms. Kwan’s vehicle, damages should be apportioned and the plaintiff
would be, at most, 50% at fault.

Ms. Kwan’s Position

[57]        
Ms. Kwan argues that the plaintiff collided with the rear of her vehicle
when she applied her brakes to avoid a collision with the UIM. She says that she
slowed, without swerving to the right, and, if anything, was struck from behind
by the plaintiff who was failing to keep a safe distance or travel at a safe
speed in the context of an unfolding dangerous situation. Ms. Kwan says that
the accident was entirely the plaintiff’s fault.

ICBC’s Position

[58]        
ICBC argues that, if I accept the evidence of the plaintiff, the fault
for the accident rests entirely with Ms. Kwan. If Ms. Kwan swerved into the right
lane then her negligence is the sole cause of the accident, as there is no
evidence of negligence on the part of the UIM causing or contributing to the accident.

[59]        
If the evidence of Ms. Kwan is accepted, then the plaintiff is entirely
at fault for the accident. In failing to avoid an impact with Ms. Kwan’s
vehicle; the plaintiff’s negligence is the only cause of the accident.

[60]        
If there is any negligence attributable to the UIM, then the plaintiff’s
claim under s. 24 of the Act fails by reason of the plaintiff’s failure to
comply with s. 24(5) of the Act.

Decision

[61]        
The accident happened on a road where construction activity, traffic
pattern changes, and a paucity of driver care and attention combined to create
a hazardous situation. The evidence of the plaintiff and Ms. Kwan is divergent
on the important facts; it is not possible to rely on any one version of the
events in deciding this case.

[62]        
Three lanes of eastbound traffic on West Broadway were merging into two
lanes, which required additional care and caution on the part of the motorists
in all three lanes.

[63]        
The events unfolded quickly. Much time has passed since the accident. The
plaintiff and Ms. Kwan have a poor recall of the accident and were,
understandably, not entirely accurate in their recollections.

[64]        
The plaintiff bears the burden of proof that Ms. Kwan and/or the UIM
were negligent and that but for their negligence the accident would not have
happened.

[65]        
The duty of each driver involved in this accident is outlined in the Motor
Vehicle Act, R.S.B.C. 1996, c. 318:

Careless driving prohibited

144 (1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is excessive
relative to the road, traffic, visibility or weather conditions. …

…

Driving on laned roadway

151 A driver who is driving a vehicle on a laned roadway

(a) must not drive it from one lane
to another when a broken line only exists between the lanes, unless the driver
has ascertained that movement can be made with safety and will in no way affect
the travel of another vehicle,

(b) must not drive it from one lane
to another if that action necessitates crossing a solid line,

(c) must not drive it from one lane
to another without first signalling his or her intention to do so by hand and
arm or approved mechanical device in the manner prescribed by sections 171 and 172,
…

…

Following too closely

162 (1) A driver of a vehicle
must not cause or permit the vehicle to follow another vehicle more closely
than is reasonable and prudent, having due regard for the speed of the vehicles
and the amount and nature of traffic on and the condition of the highway. …

[66]        
I have concluded that, after leaving the intersection of West Broadway
and Ash Street, the UIM was travelling eastbound in the left lane proceeding
toward Cambie Street. The left lane was merging into the centre lane a short
distance past the intersection of West Broadway and Ash Street.

[67]        
At two or three car lengths from the West Broadway and Ash Street
intersection, the UIM abruptly turned into the centre lane then occupied by the
Ms. Kwan.

[68]        
Ms. Kwan said that she tapped her brakes lightly to avoid a collision
with the UIM, but “doesn’t think she swerved” or crossed into the right lane in
front of the plaintiff. I conclude that she moved to the right and that the
phrase “swerve” may simply be a poor choice of words to describe the actual
movement of her vehicle.

[69]        
The plaintiff’s evidence was less than cogent on this point. He was
cross-examined against his prior inconsistent statement to Ms. McMillan. In
that statement he described striking the rear end of the Kwan vehicle as he was
moving from the centre lane into the right lane. He did not mention Ms. Kwan
swerving into his lane or the fact that Ms. Kwan struck his wheel causing his
motorcycle to fall over. While I accept that Ms. Kwan stopped suddenly and that
she may have been close to or in the right lane, I conclude that the
plaintiff’s failure to take reasonable care in slowing his motorcycle at a time
when there were signs of an emerging danger, before Ms. Kwan changed lanes, contributed
to the unfortunate accident.

[70]        
The erratic driving of the UIM and Ms. Kwan was an unfolding danger visible
to the plaintiff that should have caused the plaintiff to take greater care in
reducing his speed earlier.

[71]        
The parties were consistent in their description of the UIM as it
travelled east on West Broadway. The plaintiff indicated that he was concerned
that the UIM did not appear to be moving in such a way that it was responding
to the merger of the left lane and centre lane. This fact should have alerted
the plaintiff to the need to take additional care in his movement during the
approach to the West Broadway and Cambie Street intersection.

[72]        
The plaintiff had not slowed sufficiently to allow for a safe lane
change by Ms. Kwan. As a result, the plaintiff’s motorcycle struck the rear end
of the Kwan vehicle causing the motorcycle to fall to the left. The plaintiff
was, or should have been, alert to the risk of a sudden change in the path of
the Kwan vehicle caused by the impending, and then sudden, lane change by the
UIM.

[73]        
The UIM’s lane change was the triggering event that placed Ms. Kwan in a
position where she was required to make a sudden and evasive manoeuvre. Ms.
Kwan added to this developing hazard by driving erratically and failing to keep
a proper lookout for both the plaintiff and traffic in the left lane.

[74]        
Similarly, Ms. Kwan ought to have been aware of the merging lanes and
the need to be cautious as she moved toward the intersection. She told the
Court that she had not seen the UIM, until she had to stop to avoid a collision
with the UIM as it cut into the centre lane in front of her. She said that she
tapped her brakes lightly. This is inconsistent with the suddenness of the
circumstances as characterized by the plaintiff.

[75]        
The plaintiff says that Ms. Kwan moved into the right lane and collided
with the wheel of his motorcycle, causing him to fall over. While I accept that
his motorcycle came down in the right lane, I am not convinced that it was Ms.
Kwan who struck the motorcycle. I conclude that Ms. Kwan reacted to the UIM’s
manoeuvre into her lane with more than a touch of the brakes, and that she
swerved or veered slightly into the right lane stopping in front of the
plaintiff.

[76]        
However, Ms. Kwan should have been aware of the impending disappearance
of the left lane of travel well before the accident unfolded. In my view, she
failed to slow her vehicle in sufficient time contributing to the crisis she
faced when the UIM moved into her lane. I find that Ms. Kwan breached her duty
of care to the plaintiff and contributed to circumstances resulting in the
accident.

[77]        
I have concluded that the accident occurred as a result of a combination
of failures on the part of the plaintiff, Ms. Kwan, and the UIM to drive with
the requisite due care and skill that should be expected of motorists in the
circumstances.

[78]        
But for the actions of the UIM, this accident would not have occurred. I
find that the UIM changed lanes without regard for Ms. Kwan’s proximity to the
UIM, thereby causing Ms. Kwan to apply her brakes and move her vehicle to the
right.

[79]        
In this sequence of events, Ms. Kwan has not kept any lookout for
vehicles on her right or behind her. Notwithstanding Ms. Kwan’s abysmal memory,
I have concluded that she was faced with a sudden crisis and reacted accordingly
to avoid being hit.

[80]        
The analysis outlined in Stanowski v. Samant, [1993] B.C.J. No. 1455
(S.C.), applies to the facts in this case. Kirkpatrick J., as she then was,
stated:

The law requires that a driver
pay due care and attention to other vehicles on the road. It even extends to
what one might characterize as erratic or irrational manoeuvres by other
drivers. Here, Mr. Stanowski had a clear view of the road with which he was
familiar. He was aware that cars stopped at the vegetable stand. It is not
outside the realm of possibility that a car might make a U-turn from the
vegetable stand. Driving with due care and attention assumes that one must be
on the lookout for unexpected manoeuvres by other drivers. The burden imposed
upon drivers is reasonably high. Mr. Stanowski was travelling in wet weather on
a road where he could be reasonably expected to encounter other drivers moving
onto the highway in unexpected ways. Had he reduced the speed at which he was
travelling when he first saw the defendant’s car, he might have avoided the
collision. However, I consider that Mr. Stanowski made some reasonable attempts
to anticipate the defendant’s actions by moving his truck into the left lane
soon after he spotted the defendant’s car moving onto the highway. In these
circumstances, I assign 10% liability to the plaintiff.

[81]        
As in Stanowski, the plaintiff in this case was alert to the
erratic driving of the Kwan vehicle and the apparent failure of the UIM to
recognize the need to slow or change lanes in sufficient time so as not to
expose the Kwan vehicle to a possible collision. The plaintiff observed the
Kwan vehicle slow, accelerate, and slow again. This pattern ought to have
alerted him to the potential danger of his continued movement either in the
right lane or close to the dividing line between the centre and right lanes. If
the plaintiff had made a more reasonable attempt to anticipate a lane change by
Ms. Kwan he might have avoided the accident.

[82]        
A similar conclusion was reached by Madam Justice Holmes in Rai v.
Fowler, 2007 BCSC 1678, at para 39, where it was held:

[39] I find that Mr. Fowler
ought reasonably to have exercised more caution than he did before passing the
Rai vehicle, which immediately before, was clearly travelling in an erratic and
unsafe fashion. The vehicles were travelling at a high speed in reasonably
heavy traffic. In all the circumstances, Mr. Fowler ought reasonably to have
anticipated that the Rai vehicle would engage in further erratic movement, and
before moving forward to pass it he should have taken at least some of the
available measures to avoid possible collision, such as sounding his horn in
warning, or waiting for longer than he did to be confident that the Rai vehicle
was truly settled into its lane of travel and driving rationally and
responsibly.

[83]        
The sequence of events that unfolded before the parties is not uncommon
on a busy city street in the midst of construction and new traffic patterns.
The lane readjustments were clear for all parties to see after they left the
intersection of West Broadway and Ash Street. Although the accident was caused
by the lack of care of all three drivers, I have concluded that the negligence
of the UIM and Ms. Kwan was primarily responsible for the fall of the plaintiff’s
motorcycle and his injured ankle. I would assess their fault for the
plaintiff’s fall at 40% each. The plaintiff is 20% at fault.

[84]        
The liability of the UIM raises issues with respect to the requirements
of s. 24 of the Act.

Section 24 of the Insurance (Vehicle) Act

[85]        
ICBC argues that the plaintiff is not entitled to damages in relation to
the negligence of the UIM by operation of s. 24 of the Act, which states:

Section 24

Remedy for damage in hit and run accident

24(1) If bodily injury to or the death of a person or damage
to property arises out of the use or operation of a vehicle on a highway in
British Columbia and

(a) the names of both the owner and
the driver of the vehicle are not ascertainable, or

(b) the name of the driver is not
ascertainable and the owner is not liable to an action for damages for the
injury, death or property damage,

any person who has a cause of
action

(c) as mentioned in paragraph (a),
against the owner or the driver, or

(d) as mentioned in paragraph (b),
against the driver,

in respect of the bodily injury, death or property damage may
bring an action against the corporation as nominal defendant, either alone or
as a defendant with others alleged to be responsible for the injury, death or
property damage, but in an action in which the names of both the owner and the
driver of the vehicle are not known or ascertainable, recovery for property
damage is limited to the amount by which the damages exceed the prescribed
amount.

(2) Proceedings must not be brought against the corporation
as nominal defendant under this section unless the person bringing them gives
written notice to the corporation as soon as reasonably practicable and in any
event within 6 months after the accident that caused the bodily injury, death
or property damage.

(3) If, after an action referred to in subsection (1) has
been commenced, it is alleged that the injury, death or property damage was
caused or contributed to by another vehicle, but

(a) the names of both the owner and
the driver of the vehicle are not ascertainable, or

(b) the name of the driver is not
ascertainable and the owner is not liable to an action for damages for the
injury, death or property damage,

the corporation may be added as a nominal defendant on the
application of any party and must be added as a nominal defendant on its own
application.

(4) In an action against the corporation as nominal
defendant, the corporation may deny generally the allegations in respect of the
unidentified vehicle and its owner and driver, and need not set out the facts
on which it relies.

(5) In an action against the corporation as nominal
defendant, a judgment against the corporation must not be given unless the
court is satisfied that

(a) all reasonable efforts have
been made by the parties to ascertain the identity of the unknown owner and
driver or unknown driver, as the case may be, and

(b) the identity of those persons or that person, as the
case may be, is not ascertainable.

[86]        
ICBC submits that the plaintiff has failed to make all reasonable
efforts to ascertain the identity of the UIM, as he was obligated to under s.
24(5) of the Act. ICBC argues that the plaintiff must have done everything he
reasonably could to protect what ordinarily would be his own interests, and by
virtue of the s. 24, become the interests of the corporation (Leggett v.
Insurance Corporation of British Columbia (1992), 72 B.C.L.R. (2d) 201
(C.A.)). ICBC argues that there are two points in time where the plaintiff did
not fulfill his obligation to do all that could reasonably be done to identify
the other motorist.

[87]        
The plaintiff must be resolute and resourceful in undertaking the
ongoing obligation to ascertain the identity of the unknown owner or driver.
The plaintiff’s obligation to make reasonable efforts exists in the immediate
aftermath of the collision and extends over days and possibly weeks (Slezak
v. Insurance Corporation of British Columbia, 2003 BCSC 1679).

[88]        
ICBC relies on the characterization of the obligation  in Nelson v.
Insurance Corporation of British Columbia, 2003 BCSC 121, where Goepel J.
held:

[17] The onus is on the
plaintiff to establish that she made all reasonable efforts to establish the
identity of the driver.  Although each case must be decided on its own
facts, the authorities indicate that the onus is not one easily displaced, even
in circumstances in which the unidentified vehicle has fled the scene.

[89]        
Goepel J. also notes, at para. 18, that the plaintiff is under a continuing
obligation following an accident to use all reasonable efforts to ascertain the
identity of the driver.

[90]        
In Becker v. I.C.B.C. et al, 2002 BCSC 1106, the plaintiff left
the investigation of an accident with the police without ascertaining if they
were in fact investigating the matter. The police had abandoned the
investigation. Buryneat J. held:

[17]      … The Act does not put the responsibility to find
the driver on the police. Rather, the responsibility is on Mr. Becker.

[18]      It was not reasonable
for Mr. Becker to have no contact with the R.C.M.P. until almost 14 months
after the accident. Without the knowledge that the police were actually
attempting to locate the driver, it cannot be said that there was reliance on
the police. If a party wishes to rely on the police to undertake the
investigations which are his or her responsibility, it is incumbent upon a
plaintiff to monitor the efforts that are being made so that their own efforts
can come into play if the police have been unsuccessful. …

[91]        
In Hough v. Doe et al, 2006 BCSC 1450, Bernard J. discussed what
might constitute reasonable efforts in relation to an accident at a busy
intersection:

[24] In my view a proper
determination of the efforts which might reasonably lead to discovering the
identity of the unknown driver or owner must be made with due regard for the
location where the collision occurred and the circumstances in which the
collision occurred. For example, a collision which occurs at busy community
intersection of a well-populated area on a weekday at 8:30 a.m., in relatively
slow-moving traffic, might be witnessed by many people who: (1) pass by that
intersection at a similar time daily by vehicle or on foot; (2) might have
recognized the car or driver in question, or noted the licence plate number;
and (3) who might respond to a canvass, posting, or advertisement with
information leading to the identity of the owner or driver.

[92]        
In Tessier v. Vancouver (City) (2002), 48 C.C.L.I. (3d) 273
(B.C.S.C.), Barrow J. held:

In my view, it would be rare to
find circumstances in which simply notifying the police is sufficient to
satisfy the requirements of section 24(5) and, in any event, this is not one of
those cases. The accident occurred across the street from an industrial complex.
It is not pure speculation to conclude that someone or some people within that
facility may have witnessed the accident. At least one person came apparently
from that facility and assisted at the scene. That person remains unidentified.
Posting a notice at the mill or seeking the mill’s assistance in canvassing its
employees may well have led to the identification of that witness or
identification of other witnesses. Doing so would not be prohibitively
expensive, nor could it be described as whimsical, absurd or unwarranted
effort. Indeed, it seems to be a logical, sensible, and fair requirement. There
well may be other steps which might have been taken such as advertising in the
newspaper or posting notices in the vicinity.

[93]        
The plaintiff relies on three authorities in response to ICBC’s
position.

[94]        
In Liao v. Doe, et al., 2005 BCSC 431, the plaintiff had been
duped by the unknown motorist so that the latter could run away. The Court
concluded that the location of the accident was a busy intersection and it was
highly improbable that the plaintiff would have received any response to
postings of signs. The circumstances of that case are not parallel to the
plaintiff’s circumstances in this action.

[95]        
In Vink v. Insurance Corporation of British Columbia, 2009 BCPC
266, W.F.W. Yee, P.C.J. concluded:

… I find the decision of
Constable Somerville to abandon his duty to investigate the accident to be
arbitrary especially when he was informed of the existence of an eye witness.
Given the traumatic and scary experience of the accident and the ordeal of
having to deal with the paramedics and of the investigation by the police, it
would be unrealistic to expect Ms. Vink to ask around for the identity of the
driver who allegedly crossed the centre line. It would be unreasonable as well
to impose a duty on Ms. Vink to make efforts to locate the identity of the
other driver when she already admitted to be somewhat at fault for the accident
by her guilty plea to driving without due care and attention. …

[96]        
In my view, the decision of the learned Provincial Court Judge in Vink
is not in accordance with the decisions of this Court in Becker and Tessier.

[97]        
The Plaintiff also relied on Daniels v. Insurance Corporation of
British Columbia (1985), 14 C.C.L.I. 172 (B.C.S.C.), where Lander J. held:

I find that a citizen having
been involved in an accident, a citizen not trained in investigative
procedures, if he reports the accident, he can properly expect the police
authorities to carry out the necessary, reasonable investigation contemplated
by s. 23 of the Insurance Act. Therefore, I find that the Act has been complied
with by this particular plaintiff and the action is properly brought.

[98]        
The principles in Daniels are not in accordance with those of
this Court in Becker and Tessier.

[99]        
The plaintiff acknowledges that he did not advertise, post signs or
notices, attend at the scene of the accident to make inquiries of merchants in
the neighbouring area, or follow up with the police after his initial contact
with them at the time of the accident.

[100]     ICBC
submits that the plaintiff’s failure to take any of the steps ordinarily
associated with all reasonable efforts to identify the owner or driver of a
vehicle who has caused an accident is fatal to his claim against it.

[101]     I conclude
that the plaintiff did not make any reasonable efforts to identify the UIM
involved in the accident other than speaking to the police who attended the
accident scene and later  in the hospital. He left everything to the police
without ever following up on their progress.

[102]     In the
circumstances, I conclude that the plaintiff’s failure to take reasonable steps
precludes him from succeeding in this action against the ICBC. Accordingly,
although I have concluded that the UIM is 40% at fault, I dismiss the action
against ICBC with costs.

[103]     The plaintiff
will be entitled to damages against the remaining defendant, Elaine Ngnook Ling
Kwan, equal to 40% of the damages for which the plaintiff is determined to be
entitled to.

[104]    
If the parties are unable to agree on the issues of costs they may bring
that issue back before me.

“Armstrong
J.”