IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110302

Docket: M107047

Registry:
New Westminster

Between:

Kathleen Morris

Plaintiff

And

John Doe and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Madam Justice Ker

Reasons for Judgment

I.        Introduction

[1]            
The plaintiff, Kathleen Morris, was injured in a motor vehicle accident
on April 12, 2006, at the intersection of South Fraser Way and Ware Rd. in
Abbotsford, B.C. The plaintiff’s husband, Gill Morris, was driving his
company’s pick-up truck and had stopped at a red light. A vehicle, approaching
from behind, hit the rear end of their truck and bumped the plaintiff’s vehicle
forward. The defendant driver of the vehicle that hit the plaintiff’s vehicle
was not identified at the scene. He left the area after seemingly indicating to
the plaintiff’s husband he would pull over into an adjacent parking lot for the
purposes of exchanging information.

[2]            
Liability is an issue in this trial. The defendant Insurance Corporation
of British Columbia (“ICBC”) asserts the action must fail as the plaintiff
failed to take all necessary and reasonable steps to establish the identity of
the unidentified driver who caused the accident as required by s. 24(5) in the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Act”).

[3]            
The plaintiff asserts she took all necessary and reasonable steps in the
circumstances to establish the identity of the offending driver, and that
advertising or placing posters at the scene or canvassing local businesses was
not logical, sensible or fair in the circumstances.

[4]            
The other central issue in this case is the cause and extent of Mrs.
Morris’s injuries, in particular whether the dizziness she experienced after
the accident, and until the fall of 2006, has remitted completely or whether it
continues. Also in issue is the amount and type of damages Mrs. Morris is
entitled to receive if the issue of liability is resolved in her favour.

[5]            
As I have determined that this action must fail based on s. 24(5) of the
Act, I will only address the evidence on the issue of liability.

II.       Background

[6]            
At approximately 7:00 p.m. on April 12, 2006, the plaintiff, Kathleen
Morris, was a passenger in her husband’s 2004 GMC Sierra pick-up truck. The
couple was driving eastbound along South Fraser Way, a major thoroughfare in
Abbotsford, British Columbia. They approached the red stoplight at the intersection
with Ware Rd and stopped behind another vehicle operated by Jeffrey Gordon.
While they were stopped at the red light another vehicle, described as a white
vehicle similar to a Pontiac Grand-Am, rear-ended the Morris’s pick-up truck.
At the moment of impact the plaintiff’s head was turned to the left and she was
in the midst of advising her husband they were about to be hit from behind by
the approaching vehicle. The force of the impact caused the plaintiff’s vehicle
to lurch forward. The plaintiff heard a crack in the back of her neck area and
felt pain instantly. The collision was of sufficient force to loosen a wiring
harness (that held electrical cables for the lighting system for trailers
pulled by the truck) from underneath the bumper area.

[7]            
Immediately after the collision, Mr. Morris exited the pick-up truck. Although
he did not speak with the driver, whom he described as an East Indian male, he
motioned to him to pull his vehicle off to the side of the road into the
parking lot area of a Curtis Tire store that was adjacent to the intersection
where the accident occurred.

[8]            
No discussion at the actual scene of the accident occurred and no information
was exchanged there. Although able to see the licence plate of the offending
vehicle while stopped at the intersection, Mr. Morris did not make note of it
as he understood from the gestures of the offending driver that he was going to
follow Mr. Morris into the Curtis Tire parking lot.

[9]            
The plaintiff’s vehicle, Mr. Gordon’s vehicle and the vehicle that hit
the plaintiff’s vehicle were all in the right hand turn lane facing eastbound
on South Fraser Way. When the traffic light changed to green and permitted them
to proceed through the intersection, Mr. Gordon and Mr. Morris turned right and
drove into the Curtis Tire parking lot. Once in the parking lot, Mr. Morris
approached Mr. Gordon and then realized the driver who hit his vehicle had not
stopped and had disappeared from the area.

[10]        
Mrs. Morris immediately made a 9-1-1 call to report the accident to the
police and received an incident report number. Mr. Morris followed up by
reporting the incident to ICBC in the days following the accident.

III.       Evidentiary Synopsis and Findings from the Evidence

A.       The Evidence of Kathleen Morris

[11]        
At about 7:15 p.m. on April 12, 2006, the plaintiff, Kathleen Morris,
was a passenger in her husband’s pick-up truck. They were proceeding eastbound
on South Fraser Way in Abbotsford, B.C. and were stopped behind another
vehicle, waiting for the red light to change. Mrs. Morris looked in the
passenger side rear view mirror and saw a white vehicle coming down the hill. She
braced herself and told her husband the vehicle was going to hit them
immediately before it did. Mrs. Morris heard a crack in the back of her head in
the neck area and felt pain instantly.

[12]        
Mr. Morris drove their pick-up truck into the nearby Curtis Tire parking
lot. Mrs. Morris did not recall her husband getting out of the truck while
still stopped at the light. Once in the parking lot, Mrs. Morris got out of the
truck. In direct examination Mrs. Morris testified she noticed that the white
car which had hit them did not go into the parking lot but rather continued
along South Fraser Way. In cross-examination, however, Mrs. Morris was directed
to her evidence from her examination for discovery where she testified she did
not see the vehicle leave or where it went. Mrs. Morris acknowledged that her
discovery evidence was true and explained that it had been a number of years
and she believed she saw the car proceed along South Fraser Way. While Mrs.
Morris may well believe she saw the vehicle continuing along, I am unable, in
these circumstances, to find she in fact did see the vehicle driving away.

[13]        
Mrs. Morris testified she called the police and spoke to the 9-1-1 operator
to advise there had been an accident and the vehicle that hit them had failed
to remain at the scene. She testified she was left with the impression, and
assumed, a police vehicle she saw moments later was going after the white car
that had left the scene. I am unable to place any weight on this assumption
given the fact that I am not able to find that Mrs. Morris saw the white
vehicle driving away. Given the passage of time, Mrs. Morris may well believe
this is what she saw and assumed was happening, but her memory as demonstrated
by her evidence on this point is unreliable.

[14]        
After her husband obtained personal identification information from the
driver of the vehicle in front of them, Jeffery Gordon, they returned to their
home. A little later on Mrs. Morris attended a walk-in clinic and saw a doctor
as she was not feeling well, experiencing neck pain and dizziness.

[15]        
Mrs. Morris was cross-examined extensively about the amount of traffic
in the area, sources of possible witnesses and the steps she and/or her husband
took to identify possible witnesses. She agreed the accident occurred at a
major intersection in Abbotsford.

[16]        
Mrs. Morris repeatedly stated she thought that having Mr. Gordon as
their witness was sufficient, but acknowledged she did not know whether he
could identify the driver of the white vehicle. She also acknowledged there was
traffic in the area, both proceeding westbound along South Fraser Way, and
likely coming down the hill eastbound along South Fraser Way.

[17]        
Mrs. Morris believed the businesses of Curtis Tire, OK Tire and an oil
change company, located on the southwest, southeast and northwest corners of
the intersection were likely closed at the time and so did not make any
inquiries at them as to whether anyone had seen the accident. Mrs. Morris was
aware of the White Spot restaurant located on the northeast corner of the
intersection, having attended it a number of times, but testified she doubted
anyone would have seen the accident as the blinds on the windows would likely
have been closed. She did not make any inquiries there as to whether anyone had
seen the accident.

[18]        
Mrs. Morris acknowledged there were possible sources of witnesses with
people in the vicinity of the White Spot restaurant, pedestrians on the
sidewalk and traffic in eastbound and westbound lanes of South Fraser Way and
the other points of the intersection, who may have witnessed the accident. She
acknowledged neither she nor her husband took any steps such as posting signs
or placing advertisements in the paper seeking witnesses to the accident
stating that she did not know that she should do so or that it she had to do
so. Mrs. Morris did not think other steps were necessary as she thought having
Mr. Gordon as a witness was sufficient.

[19]        
Mrs. Morris agreed her only steps to try and identify the driver
involved in the accident consisted of calling 9-1-1, speaking to ICBC on one
occasion after the accident and having Mr. Gordon as a witness. She conceded
she left it to the police and ICBC to identify the driver that struck her husband’s
truck. Mrs. Morris testified that during the meeting with ICBC she suggested
they e-mail the repair shops but they laughed at her. Mrs. Morris also conceded
she made no follow up inquires with the police to see if they had investigated
or located the driver of the vehicle that had hit them in the accident,
explaining that she thought she would have been notified through ICBC.

B.       The Evidence of Gill Morris

[20]        
On April 12, 2006, Gill Morris, the plaintiff’s husband, was driving his
company’s 2004 GMC Sierra pick-up truck eastbound on South Fraser Way sometime
after 5:00 p.m. His wife, the plaintiff, was a passenger in the vehicle. Mr
Morris approached the light at the intersection with Ware Rd. and stopped
behind another vehicle that was waiting for the red light to change. Mr. Morris
testified there were “a couple of vehicles there.” Mr. Morris noticed a vehicle
coming up behind his truck and thought it was going to stop. His wife, however,
who was looking in the passenger rear view mirror, warned him the vehicle was
not going to stop.

[21]        
Mr. Morris testified the vehicle did not stop and hit the truck from
behind, causing the truck to lurch upward and forward a short distance; two or
three inches according to a statement given to ICBC on April 18, 2006, six days
after the accident.

[22]        
Mr. Morris described the traffic as heavy at the time with a “load of
traffic” coming down the hill eastbound on South Fraser Way towards the light. Not
wanting to block traffic at the intersection for what he described as a minor
accident, Mr. Morris placed his truck in park, got out of his truck, walked
back a few steps and turned to look at the driver who had hit them and motioned
him to pull over to the adjacent Curtis Tire parking lot. The driver
acknowledged this direction by nodding at Mr. Morris. Mr. Morris intended to
exchange personal information with the offending driver once they were out of
the flow of traffic and in the parking lot.

[23]        
Upon receiving the acknowledgement from the other driver, Mr. Morris
returned to his truck and, when the traffic light turned green, followed the
vehicle directly in front of him (Jeffery Gordon’s vehicle), turning right into
the adjacent Curtis Tire parking lot. Once parked, Mr. Morris again got out of
his truck, went over to Mr. Gordon’s vehicle and then noticed the driver of the
vehicle that had hit his pick-up truck had not turned into the parking lot.

[24]        
Mr. Morris did not see where the offending driver went but assumed he
continued eastbound on South Fraser Way. He did not pursue the vehicle as he
did not know where it went and thought it would not have been a safe thing to
do. Mr. Morris exchanged information with Mr. Gordon and then telephoned the
police, providing a description of the vehicle that had hit them and the damage
he observed to the hood of the vehicle. The police did not attend the scene but
did provide an incident number.

[25]        
Mr. Morris testified he recalled the driver of the vehicle that hit his
truck to be an East Indian male driving what looked like a white Grand Am. Although
he did not step all the way to the back of his truck while stopped at the light
and out of his truck, it was Mr. Morris’s evidence that he was able to see that
the vehicle that hit his truck had a hole in its hood from the trailer hitch on
his truck bumper. Mr. Morris thought he conveyed this information to the ICBC
adjuster he dealt with on April 18, 2006.

[26]        
In cross-examination, Mr. Morris acknowledged his statement to the ICBC
adjuster on April 18, 2006, did not contain any descriptive information about
the suspect driver or damage to the driver’s vehicle, only a general
description of the vehicle.

[27]        
During the meeting with the ICBC adjustor, Mr. Morris provided the name
of Jeffrey Gordon as a witness to the accident. He was given no other
instructions by ICBC other than receiving authorization to have his truck
repaired.

[28]        
The only damage to Mr. Morris’s truck noted at the time was that the
electrical wiring harness for the trailer brake lights was loosened by the
impact. About two months after the accident, Mr. Morris and a friend noticed
the towing mechanism on the truck bumper area appeared to have been pushed
forward and was pinching the spare tire so that it could not be removed without
dropping the entire mechanism to loosen the spare tire. Mr. Morris attributed
this damage to the accident, but reluctantly conceded he could not say it had
not been caused either before the accident, or at another time in the two
months after the accident.

[29]        
In cross-examination, Mr. Morris explained that when he was out of his
truck at the intersection, he was standing about three feet in front of the
vehicle that had hit him. Although he could have seen the licence plate and
made a note of it, he did not, explaining he was not thinking that way at the
time. Instead, he assumed he would obtain the necessary information when they
pulled into the parking lot and exchanged information.

C.       The Evidence of Jeffrey Gordon

[30]        
On April 12, 2006, at about 7:00 p.m., Jeffrey Gordon was driving
eastbound in the right hand curb lane of South Fraser Way in Abbotsford, B.C.
He stopped for a red light at the intersection with Ware Rd. and within a few seconds
heard tires squealing. He looked in his rear-view mirror but could not see
behind the large pick-up truck stopped immediately behind him. Mr. Gordon heard
a crash and saw the pick-up truck immediately behind him “lurch ahead.” Mr.
Gordon did not see the vehicle that hit the plaintiff’s vehicle.

[31]        
Mr. Gordon described South Fraser Way as having two lanes of travel in
each direction as well as two left hand turn lanes. Although he recalled the
traffic as being light at the time of the accident, he testified there was
traffic in the area, including a vehicle beside him, when the accident
occurred. Immediately to the right of the intersection where the accident
occurred is a Curtis Tire store set back 30 metres from the road.

[32]        
Mr. Gordon decided to turn into the Curtis Tire parking lot to advise
Mr. Morris he would be a witness to hearing and seeing his truck being hit. As
soon as the light turned green, he made a right hand turn off South Fraser Way
and then turned into the Curtis Tire parking lot. Once in the parking lot, Mr.
Gordon spoke to Mr. Morris and provided him with his name and number.

[33]        
Mr. Gordon did not see the other vehicle involved in the collision and
did not recall what happened to it. He did not see it in the parking lot of
Curtis Tire.

[34]        
From the time of the collision to the time Mr. Gordon entered the Curtis
Tire parking lot once the light turned green, he did not see any vehicle travelling
in the same direction pass by him. Mr. Gordon also did not see any vehicle
behind the pick-up truck make a U-turn and leave the area in an effort to evade
the scene of the accident.

[35]        
Mr. Gordon did not recall seeing either, or both, Mr. and Mrs. Morris
get out of their vehicle in an effort to identify the vehicle behind them.

D.       Findings from the evidence

[36]        
The evidence adduced in this trial establishes that in the early evening
of April 12, 2006, the plaintiff and her husband were in a 2004 GMC pick-up
truck travelling eastbound on South Fraser Way in Abbotsford, B.C. While
stopped at a red light at the intersection of South Fraser Way and Ware Rd,
their vehicle was rear-ended by a white sedan-type vehicle. Although Mr. Morris
got out of his vehicle and stepped back to see the front of the vehicle and the
driver of the vehicle that had rear-ended his truck, he made no note of the
licence plate. Mr. Morris understood from the unidentified driver’s
acknowledgement head nod that they would pull over into a parking lot out of
the flow of traffic and exchange their particulars for insurance purposes.

[37]        
The intersection where the accident occurred is a busy major
thoroughfare in Abbotsford and I find there was other traffic in the area at
the time of the accident. Indeed that was one of the motivating reasons for Mr.
Morris to pull into the parking lot so as not to impede the flow of traffic at
the intersection. Mr. Gordon recalled traffic in the area and noted at least
one other vehicle beside him at the intersection when the accident occurred. Mr.
Morris recalled traffic to be heavy, and Mrs. Morris agreed there was traffic
in the area in both directions of South Fraser Way and possibly pedestrians in
the vicinity of the nearby White Spot restaurant.

[38]        
Mr. Gordon did not see the driver of the vehicle or the vehicle that
rear-ended the Morris’s vehicle and was unable to identify the driver that
caused the accident.

[39]        
The plaintiff believes she saw the white vehicle that collided with
their pick-up truck continuing eastbound on South Fraser Way through the
intersection after her husband and Mr. Gordon pulled into the parking lot at
the Curtis Tires store. However, it is clear from her examination for discovery
evidence that this cannot be correct. Her prior sworn evidence, which she
acknowledged was true, is completely inconsistent with her trial evidence on
this point. Given this inconsistency in her evidence on a significant detail, I
am unable to accept Mrs. Morris’s evidence at trial on this point. It is clear
from her evidence she believes she saw this, but the significant inconsistency
on this point indicates otherwise.

[40]        
Mr. and Mrs. Morris reported the existence of the unidentified vehicle
and its departure from the scene as soon as reasonably possible to the police
via a 9-1-1 telephone call while still at the scene. They also reported the
incident to ICBC and then attended an ICBC claims centre on April 18, 2006, and
had their vehicle inspected, provided statements and received authorization to
have the vehicle wiring harness repaired.

[41]        
Apart from contacting 9-1-1 to report the driver who had caused the
accident had fled the scene without identifying himself, reporting the incident
to ICBC and attending at an ICBC claims centre to provide statements and have
their vehicle examined for damage, Mr. and Mrs. Morris took no other steps to
attempt to determine the identity of the driver of the vehicle who had caused
the accident. They placed no signs in the vicinity of the intersection where
the accident occurred seeking help or information from potential witnesses. They
placed no advertisements in the local newspapers or other media seeking help or
information from potential witnesses to the accident. They did not attend at a
nearby White Spot restaurant, located cater-corner to where the accident
occurred, to see if any customers or nearby pedestrians had observed the
accident, nor did they attend at any of the other businesses in the area,
believing them to be closed at the time.

[42]        
The plaintiff admitted in her evidence she relied upon the police to
take steps to identify the driver or owner of the vehicle but did nothing to
follow up on the course of any investigation, if there was one. She further
testified she did not know she had to have other witnesses, thinking that having
one witness was sufficient. However, neither Mr. nor Mrs. Morris did anything
to ascertain whether Mr. Gordon could identify the driver of the vehicle.

IV.      Issues

[43]        
The primary issue in this case is whether the plaintiff made reasonable
efforts to ascertain the identity of the unknown driver in this case. The
defendant, ICBC, argues the plaintiff’s claim should be dismissed because the
plaintiff failed to make the efforts required by s. 24(5) of the Act to
ascertain the identity of the unknown driver of the vehicle that struck her
husband’s pick-up truck.

[44]        
The plaintiff asserts she took all necessary and reasonable steps in the
circumstances to establish the identity of the offending driver at the scene
and that advertising or placing posters at the scene or canvassing local
businesses was not logical, sensible or fair in the circumstances as no one
would be able to provide the missing licence plate number or information on the
identity of the negligent driver.

V.       Legal Principles

[45]        
Section 24 of the Act provides a statutory right of action,
enabling plaintiffs involved in hit and run accidents to sue ICBC as a nominal
defendant in certain circumstances where the identity of a negligent driver is
unknown. The right to recover against an unknown tortfeasor does not exist at
common law. However, s. 24(5) imposes an obligation on plaintiffs who seek to
take advantage of the avenue of recovery that s. 24 provides. It limits the
availability of the benefits of s. 24 to those who have complied with the provisions
of s. 24(5): Tessier v. Vancouver (City) (2002), 48 C.C.L.I. (3d) 273
(B.C.S.C.) [Tessier], at para. 12; Hocaluk v. ICBC, 2007 BCSC 170
[Hocaluk], at para. 33.

[46]        
Section 24(5) of the Act provides as follows:

Remedy for damage in hit and run accident

24(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.

[47]        
Section 24(5) restricts plaintiffs in their actions against ICBC as the
nominal defendant to those who satisfy the court they have made all reasonable
efforts to identify the unknown hit and run driver and that the identity of the
driver is not ascertainable. The onus to be met by plaintiffs on the issue of
reasonable steps, although not exceptionally onerous, is not one easily
displaced, even in circumstances in which the unidentified vehicle has fled the
scene: Nelson v. ICBC, 2003 BCSC 121 [Nelson], at para. 17; Burley
v. ICBC, 2003 BCSC 1837 [Burley], at para. 7; Godara v. ICBC,
2008 BCSC 183 [Godara], at para. 53. A plaintiff’s failure to discharge
this onus and establish that reasonable steps have been taken is fatal to a
plaintiff’s claim.

[48]        
The leading authority on the interpretation of s. 24(5) of the Act is
the decision in Leggett v. ICBC (1992), 72 B.C.L.R. (2d) 201 (C.A.) [Leggett],
leave to appeal to S.C.C. ref’d, [1992] S.C.C.A. No. 558, where the British
Columbia Court of Appeal made it clear that ICBC’s exposure to liability is
limited to claims brought by those who could not ascertain the identity of the
parties responsible, and not to parties who had the opportunity to identify the
offending vehicle but chose not to do so.

[49]        
In Leggett, the plaintiff’s vehicle was rear-ended by an
unidentified motorist. After the accident, the plaintiff examined his vehicle,
saw minor damage and spoke with the unidentified driver who had stopped at the
scene of the accident. The two drivers determined they would each look after
their own damage. Neither party provided the other with any identification or
contact information. The plaintiff in Leggett chose not to obtain
particulars of the unidentified driver, believing at the time he had not
suffered any injury. The next day, however, the plaintiff started to experience
symptoms consistent with a soft tissue injury to his lower back. He sought
damages from ICBC pursuant to then s. 23 of the Act. The trial judge
found the plaintiff had made reasonable efforts to ascertain the identity of
the offending driver when he returned to the scene of the accident over 10
different days all at around the time of the accident, in the hope that he
would see the vehicle involved and record its licence plate number. The
plaintiff in Leggett took other steps to ascertain the driver’s identity
including placing advertisements in newspapers seeking information about the
identity of the driver, but all efforts proved fruitless.

[50]        
In allowing ICBC’s appeal in Leggett, Mr. Justice Taylor outlined
the purpose of s. 24(5) stating at page 205 [para. 9-10]:

[9]        …the overall purpose of the section is to limit
the exposure of the corporation to claims brought by persons who, in the matter
of seeking to identify those responsible for the accident, have done everything
they reasonably could to protect what ordinarily would be their own interests,
and which, by virtue of the section, become the interests of the corporation.

[10]      The corporation’s
exposure under the section is limited to claims brought by those who could not
have ascertained the identity of the parties responsible. It does not, in my
view, extend to claims by those who have chosen not to do so.

[51]        
While one of the purposes of s. 24(5) is to protect against the
potential for fraudulent claims, that is not its sole purpose. Its broader
purpose is to protect those who have done everything they reasonably could to
protect what ordinarily would be their own interests. What constitutes all
reasonable steps as contemplated by s. 24(5) of the Act must be
determined in light of the purpose of the section and the circumstances of the
particular case. The test which emerges from the purpose of the section was
stated by Taylor, J.A. in Leggett at page 206 [para. 13] as follows:

…whether the claimants had
"pursued the investigation to identify the vehicle and its owner and
driver as resolutely and resourcefully as they would have done in like
circumstances" had there been no such provision. In
order to accommodate the current statutory requirement in the present context,
I would add, after the words "would have done in like circumstances",
the words "if the claimant intended to pursue any right of action which he
or she might have arising out of the accident".

[52]        
To put it another way, the appropriate test to determine whether all
reasonable efforts have been made is: Did the plaintiff do all that she would
have to identify the other parties involved if she intended to pursue legal
action against them, if ICBC were not potentially liable under s. 24 of the Act?:
Goncalves v. Doe, 2010 BCSC 1241 [Goncalves], at para. 6.

[53]        
What is “reasonable” in similar circumstances has been interpreted as
synonymous with “logical, sensible, and fair” but does not include efforts
which are “absurd, whimsical or unwarranted:” Tessier at para. 14; Slezak
v. ICBC, 2003 BCSC 1679 [Slezak], at para. 40. The test, however, is
not whether Mrs. Morris made “best efforts;” it is whether she made “reasonable
efforts” to ascertain the identity of the driver: Hocaluk at para. 54.

[54]        
Two specific time periods are relevant under the s.
24(5) inquiry: the time of the accident and the days or weeks following the
accident. If reasonable efforts could not be made at the time of the accident,
e.g. due to shock or injury; a belief that the party has not sustained any
injury; or the driver fled the scene before information could reasonably be
obtained, the court examines the steps taken by the plaintiff to ascertain the
identity of the negligent driver in the days or weeks following the accident.
What constitutes all reasonable efforts is a factual issue decided on a case by
case basis.

[55]        
An examination of the jurisprudence on what constitutes reasonable
efforts reveals the following principles:

a.       depending
on the plaintiff’s condition at the scene of the accident, it may not be
realistic to expect the plaintiff to obtain particulars as to the identity of
the offending driver particularly where the plaintiff is in shock or confused
or injured: Tessier; Hocaluk; Ingram v. ICBC (1994), 45
B.C.A.C. 218 [Ingram]; Holloway v. ICBC, 2007 BCCA 175, at para.
14; Larsen v. Doe, 2010 BCSC 333 [Larsen]; Becker v. ICBC,
2002 BCSC 1106 [Becker], at para. 20; Nelson at paras. 19-20

b.       failure
to record a licence plate number at the time of the accident when the plaintiff
has the opportunity to do so or obtain information as to the driver’s identity,
either personally or through the assistance of others, but does not take
advantage of the opportunity amounts to a failure to take reasonable steps at
the time of the accident: Burley at paras. 23-24; Watson v. Insurance
Corporation of British Columbia, 2004 BCSC 1695 [Watson]; Cannon
v. ICBC, 2005 BCSC 602;

c.       simply
notifying the police of the accident may not be sufficient to satisfy the
requirements of s. 24(5): Tessier at para. 17; Becker at para.
18;

d.       the Act
does not put the responsibility to find the unidentified driver on
the police; rather the responsibility lies with the plaintiff: Becker at
para. 17;

e.       where a
plaintiff does notify the police of the accident, it is not reasonable for them
to simply assume the police will make the necessary inquiries without following
up with the police and checking to see if there was an investigation and if so
what progress was being made in it: Becker at paras. 17-18; Tessier
at para. 17; Goncalves at para 23;

f.        simply
reporting the matter to the police and ICBC, without more, has led to the
dismissal of a plaintiff’s action for failure to comply with the requirement of
taking all reasonable steps to ascertain the identity of the driver: Meghji
v. ICBC, [1998] B.C.J. No. 3107 (P.C.) (QL);

g.       where
the police attend the scene of the accident and take witness statements and
indicate they are investigating the hit and run accident, it may not be
necessary for the plaintiff to take any additional steps, depending on the
circumstances: Hough v. Doe, 2006 BCSC 1450 [Hough], at paras.
16-17 & 21; Ingram at para. 13;

h.       a
plaintiff placed in a position of danger at the time of the accident cannot be
expected to remain in that position to obtain details of a licence plate and
movement to a position of safety before trying to obtain any licence
information does not constitute a failure to take reasonable steps at the scene
of the accident: Nelson at paras. 19-20;

i.        posting
signs in the area of the accident and/or advertising in local newspapers in an
effort to find witnesses within a reasonable time after the accident where the
accident occurs at a busy intersection is a reasonable and expected step as it
is possible that someone present at the time of the accident could be of
assistance in ascertaining the identity of the driver of the vehicle that left
the scene: Johal v. ICBC (1992), 9 C.C. L.I. (2d) 172 [Johal]; Fan
v. Doe, 2009 BCSC 568 [Fan]; Nelson at paras. 21-22; Godara
at paras. 51-54; Tessier at para. 17; Halfyard v. ICBC (1993), 26
C.C.L.I. (2d) 320 [Halfyard];

j.        failing
to post signs at the scene of the accident or place advertisements in the
newspaper in a timely manner or in a manner that provides insufficient detail
where it is possible that there were potential witnesses who may have
information about the accident will result in a denial of coverage under s. 24
of the Act: Johal; Fan; Burley; Becker; Nelson at paras. 21-22;
Jennings v. ICBC, 2002 BCSC 341;

k.       repeatedly
canvassing regular patrons of the business where the plaintiff’s vehicle was
damaged in the parking lot of the business may constitute reasonable steps to
ascertain the identity of the driver: Janzen v. Insurance Corporation of
British Columbia, 2004 BCPC 437;

l.        posting
signs and advertising in local newspapers may not be a reasonable step where
the accident occurs on a high speed area of highway or a on highway in an area
that is undeveloped and sparsely populated: Hough at para. 24; Goncalves
at para. 16-21;

m.      once it
is found that a plaintiff acted reasonably in believing they had the
information that would be required, such as a licence plate number, there is no
onus cast upon them to undertake a highly speculative further investigation
upon being advised they have the wrong license plate number: Smoluk v. ICBC (1993),
26 B.C.A.C. 23 [Smoluk]; Walker v. Farnel (1995), 36 C.C.L.I.
(2d) 312, at para. 24;

n.       a
plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in
a hit and run case where they rely upon information provided by the offending
driver that subsequently turns out to be untruthful: Mudrie v. Grove,
2010 BCSC 1113, at paras. 33-36;

o.       failure
to follow up on directions to take additional steps such as posting signs for
witnesses or advertising, once advised the recorded licence plate number is
incorrect will result in a denial of coverage under s. 24 of the Act: Watson;

p.       failing
to make a timely report to the police and failing to follow up on available
information from the scene of the accident such as information in the
possession of ambulance personnel who attended the scene will result in a
denial of coverage under s. 24 of the Act: Johal;

q.       the
failure of ICBC adjusters to advise the plaintiff that other steps to try and
ascertain the identity of the driver should be undertaken does not relieve a
plaintiff of the obligation to take all reasonable steps to ascertain the
unknown driver’s identity: Tessier at para. 19.

[56]        
As the jurisprudence demonstrates, what constitutes reasonable steps
varies with the circumstances of each case. However, where it was not
reasonable to obtain information that would assist in ascertaining the identity
of the driver at the time of the accident, taking no steps at the second stage
in the days or weeks after the accident, cannot amount to discharging the clear
onus placed upon a plaintiff to take reasonable steps to ascertain the identity
of the unknown driver.

VI.      Analysis

[57]        
Turning to the circumstances of this case, I am satisfied that this is not
a case in which there is a risk of fraud. When the risk of fraud is not
present, it may well be the approach to “all reasonable efforts” is somewhat
relaxed. As noted by Chief Justice Esson (as he then was) in Johal, when
the risk of fraud is absent the test for all reasonable efforts “should not be
made so exacting that it cannot be met:” see also Tessier at para. 15.

[58]        
As noted above, there are two time frames to consider when assessing
whether a plaintiff has discharged its onus of establishing that it made all
reasonable efforts to ascertain the identity of the driver: the steps taken at
the time of the accident and the steps taken in the days and weeks following
the accident.

A.       Steps at the time of the accident

[59]        
As noted by the Court of Appeal in Leggett, the critical issue is
whether Mrs. Morris “was in such a position and condition that it would be
reasonable for [her] to discover and record the appropriate information.”

[60]        
In this case, I find that Mr. and Mrs. Morris were not in shock,
confused or disoriented as a result of the accident. Mr. Morris certainly had
the opportunity to obtain the licence plate of the vehicle that hit them when
he stepped out of his vehicle to check for damage. The fact that he did not is
not necessarily fatal at this first stage as it is reasonable to conclude Mr.
Morris did not want to impede the flow of traffic in the intersection and was
relying upon the driver’s indication that he would pull over to exchange information
for insurance purposes. Mr. Morris was entitled to rely on the fact that the
unidentified driver would pull over, as he acknowledged, and honour his
statutory obligation under s. 68 of the Motor Vehicle Act R.S.B.C. 1996,
c. 318, to remain at the scene accident and provide his particulars for
insurance purposes.

[61]        
By the time Mr. and Mrs. Morris discovered the offending driver was not
stopping in the parking lot to provide particulars about identity and
insurance, it was too late for anyone to obtain a licence plate number, the
vehicle having left the area. The plaintiff and her husband were not then in a
position to obtain the licence plate information.

[62]        
Mrs. Morris had the presence of mind to contact the police by means of a
9-1-1 call as soon as they discovered the driver who had hit them had left the
scene, and to that extent took a step in attempting to ascertain the identity
of the driver. I find however, Mrs. Morris was unable to provide any sort of
details as to what the car looked like or what direction it had left the scene.

[63]        
What the Morrises failed to do at the scene of the accident was
determine from “their witness” Mr. Gordon whether he was able to identify the
driver of the other vehicle. Had they made such an inquiry they would have
immediately learned he was unable to provide any details about the identity of
the offending driver.

[64]        
They also failed to make any immediate inquiries in the area,
particularly at the White Spot restaurant and its parking lot and drive-through
area, as to whether anyone there had made any observations and could assist in
ascertaining the identity of the offending driver.

[65]        
Although the plaintiff and her husband could have taken steps to canvas
the surrounding area at the time of the incident for potential witnesses, I do
not find it fatal in these circumstances that they did not do so. They likely
were flustered by the fact they had been in an accident, and that the offending
motorist had departed from the scene without providing particulars for
insurance purposes, despite his physical acknowledgement to Mr. Morris that he
would turn off into the adjacent parking lot to exchange information out of the
flow of traffic. Although Mr. Morris had a reasonable opportunity to record the
licence plate of the vehicle that hit his pick-up truck while they were still
at the accident scene, his failure to obtain such does not necessarily foreclose
the plaintiff’s action. In the circumstances, Mr. Morris acted reasonably at
the time of the accident in not writing down the licence plate, electing to
wait until both vehicles had moved out of the intersection and into the parking
lot to exchange information. In this respect, the plaintiff and her husband
were entitled to operate on the assumption that the driver would abide by his statutory
obligation to remain at the scene of the accident and provide identifying
information.

[66]        
In the circumstances, the plaintiff and her husband acted reasonably at
the time of the accident but could not obtain the required information because
the driver had fled the scene.

[67]        
However, the requirement to make all reasonable efforts is not limited
to the immediate aftermath of the accident. To satisfy the test in s. 24(5),
the plaintiff must not only have made all reasonable efforts at the scene of
the accident, but must also have made all reasonable efforts to identify the
other parties in the days and, possibly weeks, that followed the accident, if
they did not or could not obtain the information at the time of the accident: Slezack
at para. 42; Goncalves at para. 7; Godara at para. 47.

B.       The days and weeks following the accident

[68]        
In assessing the reasonableness of a plaintiff’s efforts to ascertain
the identity of the negligent unidentified driver in the days and weeks
following the accident, it is useful to repeat the test considered appropriate
in determining whether all reasonable efforts have been made: did the plaintiff
do all that she would have to identify the parties involved if she intended to
pursue legal action against them, if ICBC was not potentially liable under s.
24 of the Acf?: Leggett at para. 13.

[69]        
Mr. Morris reported the accident to ICBC the next day and within a few
days of the accident, Mr. and Mrs. Morris attended an ICBC claims centre to
have their vehicle inspected and provided statements to ICBC. They took no
follow up steps with the police to determine if the police were investigating
the matter they had reported right after the accident, although they relied on
the police and ICBC to investigate and identify the driver that hit them. They
did not return to the scene of the accident and post signs in the area seeking
witnesses, including at the nearby White Spot; nor did they place any
advertisements in the local newspaper seeking witnesses.

[70]        
Counsel for the plaintiff argues that the failure to post signs or
advertisements is not fatal as in this case there were no such witnesses who
reasonably existed who could have provided the information and no target
audience who could contribute anything more than that offered by Mr. Gordon. This
argument, however, is entirely speculative.  While signage or advertising might
possibly not have produced any further information, it is equally likely that
such steps may well have elicited some helpful information. Mr. and Mrs. Morris
and Mr. Gordon all acknowledged that there was traffic in the area at the time
of the accident and so there was a potential source of witnesses. There is
nothing to suggest that efforts to seek out witnesses around the time of the
accident would have been fruitless. It is this failure to take the steps to try
and obtain the information in the days and weeks after the accident that is
fatal to the plaintiff’s case.

[71]        
Often, quickly reporting the matter to ICBC, filing a police report,
combined with posting signs or a newspaper advertisement seeking witnesses in
the days or weeks that follow, are sufficient steps to meet the onus placed on
plaintiffs by s. 24(5) of the Act: Smoluk; Slezak; Becker
at para. 16; Halfyard; Larsen at para 30-39.

[72]        
In this case no other steps or investigation was conducted by Mrs.
Morris or her husband to ascertain the identity of the owner or driver of the
vehicle that rear-ended their truck apart from calling 9-1-1 at the time and
reporting the matter to ICBC. While Mr. Morris’s reliance upon the negligent
driver’s indication that he would pull over may well have been sufficient for
reasonable steps at the scene in the circumstances, the failure to take any
other steps than those of contacting the police and advising ICBC of the
accident is unreasonable.

[73]        
The plaintiff’s assumption that the police were investigating the matter
is unreasonable in the absence of first ascertaining that the police in fact were
investigating the matter. A call to 9-1-1 and obtaining a police file number
does not amount to circumstances where one can simply assume the police are
investigating the matter. In this case no police officers attended at the scene
and the plaintiff was certainly never advised nor did she affirmatively
ascertain that the police were in fact investigating the matter. This is not a
case like the circumstances in Hough where the police attended and
advised the plaintiff they in fact were investigating the hit and run accident.

[74]        
The accident in this case occurred at a relatively busy intersection in
Abbotsford, B.C. There was some traffic in the area at the time in addition to
Mr. Gordon, the evidence from all the witnesses establishes this fact. There
was, therefore, a source of potential witnesses in the vicinity including
possibly at the area of the White Spot restaurant. The plaintiff’s assertion
that it is unlikely that any witnesses would have come forth cannot be relied
upon as a reason for not at least endeavouring to determine if any witnesses
were available. The failure to take any steps to see if there were any
witnesses who could assist cannot be turned into a shield to protect plaintiffs
from their inaction by suggesting no such witnesses would have been available.

[75]        
It cannot be said in these circumstances that at least making the effort
to post signs and advertise in a local newspaper in an effort to seek out
potential witnesses was “absurd, whimsical or unwarranted.” On the contrary,
such steps are entirely “logical, sensible and fair.” Such steps are not
onerous and could well have provided a source of potential witnesses. The
suggestion that advertising or posting signs likely would not produce witnesses
in these circumstance cannot be used as a justification for failing to do so.
It is not reasonable to operate on the assumption that a contemporaneous
advertisement or posting of signs at the intersection would not elicit some
assistance in ascertaining the identity of the unknown driver: Becker at
para. 16; Godara at para. 51. If that was an acceptable
assumption, then the jurisprudence would not require the plaintiff take such a
step where the circumstances indicate it might assist. In many other cases such
steps were undertaken, albeit to no avail, but at least the plaintiff
endeavoured to take some steps to try and ascertain the identity of the
negligent driver. In this case, the plaintiff failed to take any such step at
all, apart from notifying the police in the 9-1-1 call and reporting the
incident to ICBC.

[76]        
In the circumstances, Mrs. Morris’s failure to take any other steps to
try and ascertain the identity of the driver after calling 9-1-1 at the scene
and reporting the matter to ICBC cannot be described as anything other than
failing to make all reasonable efforts to ascertain the identity of the driver.
Indeed, on the evidence before the Court, no efforts, let alone reasonable
efforts, were made to ascertain the identity of the driver in the days and
weeks after the accident.

VI.      Conclusion

[77]        
The plaintiff has failed to prove she has complied with the requirements
of s. 24(5) of the Act and therefore is not entitled to claim damages
against ICBC directly under s. 24 of the Act.

[78]        
The action is dismissed and the defendant is entitled to the costs of
this action, subject to any application counsel may make. If the parties seek
to make further submissions on the issue of costs, notice must be given to the
Court within 30 days of the filing of this judgment.

“Ker J.”