Under Section 24 of the Insurance (Vehicle) Act, ICBC is required to compensate you for death or injury or for damage to a vehicle even if the at-fault motorist is unknown.
In terms of vehicle damage, it is simply a matter of making a claim to dial-a-claim and then bringing your vehicle in to ICBC for inspection. ICBC has a policy in place whereby only certain claim centers inspect vehicles involved in hit-and-run accidents. The local police force may be present at the claims center so as to keep motorists “honest”. Therefore, it is best not to try to get ICBC to cover vehicle damage which is not truly caused by an unidentified motorist. Don’t try to “pull one over” on ICBC as you may be charged with fraud criminally.
As to a bodily injury or death claim, although ICBC has to cover these losses, the current law requires that you take all reasonable steps to identify the at-fault vehicle and its driver. The reason being, in order to succeed in a hit-and-run claim, you must show that the identity of the driver and the vehicle involved in the accident were not ascertainable.
Section 24 provides clear reporting requirements. One reporting requirement is that you give written notice to ICBC of the accident as reasonably practicable as possible, but no later than six months after the accident. The courts have interpreted this provision as requiring a motorist to give ICBC notice within days of the accident unless for some reason your injuries preclude you from doing so.
In addition to providing early reporting to ICBC about a hit-and-run accident, you actually have to take positive steps to determine the identity of the at-fault motorist and the vehicle involved in the accident. Section 24 (5) provides that:
(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.
The courts have interpreted this section to mean that you have to take some positive steps to identify the other vehicle and driver. The Courts have found the duty to identify to not only exist at the time of the accident but also in the days after the accident.
At the scene of the accident, if you do not record the information necessary to identify the other driver and vehicle, you have no claim. That is, if you let the other driver leave the scene without recording plate numbers and driver’s license information thinking the claim is minor in nature, you lose your right to an ICBC claim. It is only when the other driver fleas the accident scene and you cannot record the information that you have a valid hit-and-run claim.
Even after the initial accident, you have to try to ascertain the identity of the other vehicle. At a very minimum you should take the following steps:
- If possible, follow the other vehicle to try to get the license plate information;
- Notify the police at the accident scene and definitely within hours of the accident;
- Notify ICBC within hours of the accident, if possible;
- Place a sign at the accident scene looking for witnesses and the other driver;
- Place an advertisement in the local newspaper looking for witnesses and the other driver;
- Follow-up with the police regarding the investigation; and
- If the accident occurred nearby to some buildings, knock on some doors to see if there are any witnesses.
In other words, you are really asked to play detective so that ICBC cannot turn around later and argue that had you taken certain steps you may have been able to identify the driver and vehicle involved in the accident.
Assuming that you meet the initial threshold test, you then pursue ICBC for payment of damages. If it is necessary to start a lawsuit, you would sue ICBC as a nominal defendant. If the identity of the vehicle and driver becomes known later, you would amend the lawsuit so that you sue the owner and operator of that vehicle.
Like other ICBC cases, all defenses open to ICBC are also available in a hit-and-run claim, including arguing liability, even though the other motorist involved in the accident is not available to testify at trial. The limits on the claim are $200,000 legal costs and disbursements at which time called underinsured motorist protection (“U.M.P.”) would kick in.
In summary, whenever you are involved in an accident where you cannot identify the driver or owner of a vehicle, it’s very important to make an early reporting to ICBC and the police. You also have to take positive steps to try and identify the vehicle and the driver of the other vehicle because if you do not, you will not have a claim against ICBC.