Hit and Run ICBC Claims: When You Can't Find the Motorist That Hit You

Being injured in a motor vehicle accident is incredibly stressful.  It only gets worse when an ICBC adjuster tells you that they can't find the motorist and you do not have a valid claim. If this happens, you should seek legal advise because you have certain obligations that may allow you to make an injury claim. 

Under section 24 of the Insurance (Vehicle) Act, ICBC is required to compensate you for death, injury, or for damage to a vehicle even if the at-fault motorist is unknown (a hit and run).

In terms of vehicle damage, it is a matter of reporting the claim to ICBC and bringing your vehicle in for an inspection. ICBC usually has specific claim centres that inspect vehicles involved in hit-and-run accidents. It is important to be honest about your reporting and identifying the actual damage caused by the Hit and Run motorist.  ICBC is getting more and more sophisticated with their computing technology and they may be able to find the motorist by using the Tip Hotline and paint samples.   Don’t try to “pull one over” on ICBC as you may be charged with fraud criminally. It also impacts your credibility and honesty with ICBC, which can go a long way with presenting your injury claim. 

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. 

Section 24 of the Insurance (Vehicle) Act provides the clear reporting requirements:

First: 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.

Second: In addition to providing early reporting to ICBC about the Hit and Run incident, you must take steps to determine the identity of the at-fault motorist. 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.

Case law has established 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 and weeks after the accident. For example, at the scene of the accident, if you do not record the information necessary to identify the other driver and vehicle, you probably have no claim. That is, if you let the other driver leave the scene without recording plate numbers and driver’s license information, you could lose your right to a valid ICBC personal injury claim. It is only when the other driver fleas the scene of the accident scene and you cannot record the information that you have a valid Hit and Run claim.

Recommendations: follow these steps to secure your best chance at a valid Hit and Run ICBC injury claim:

1. in and discrete and safe manner, try to follow the other vehicle and record the license plate information and vehicle description (make, model, color and other distinguishing marks);
2. notify the police as soon as possible from the accident scene or definitely within hours of the accident;
3. try to locate a witness from the scene of the accident;
4. notify ICBC as soon as possible or definitely within hours of the accident;
5. depending on location, place a sign at the accident scene looking for potential witnesses;
6. place an advertisement in the local newspaper looking for witnesses;
7. follow-up with the police regarding the investigation for status reports; and
8. if the accident occurred nearby to some buildings, find out if there is potential video footage or possible witnesses.

From reviewing those recommendations, you probably realized that you are being asked to be a detective so that ICBC cannot turn around later and argue that you did not take steps that you should have.  Assuming that you meet the initial threshold test, you then pursue ICBC for payment of damages. If you have to commence a law suit, it is a little different than the usual case and will be the topic of a future post. You should hire a personal injury lawyer and seek advice.

Conclusion: in a nut shell, whenever you are involved in an accident where you cannot identify the driver or owner of a vehicle, it is 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. If you don't follow these basic steps, you will have trouble pursuing a claim against ICBC.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

ICBC Tip of the Month (March 2014): "Are my ICBC settlement funds taxable?"

QUESTION: "Are my ICBC settlement funds taxable?" 

ANSWER: When you receive a settlement from ICBC, even if it is partly for past wage loss, you do not have to pay any taxes.

If you are receiving ICBC Part 7 disability benefits, you do not have to pay taxes on that amount either.

Why not? Firstly, when ICBC calculates any lost wages attributable to the car accident they reduce the amount owing based on the taxes you would have paid if you had received that income. In other words, they will reduce the amount owing in wages by your appropriate tax bracket.  This is done before the settlement of the claim.

Secondly, non-pecuniary general damages (pain and suffering money) is not taxable pursuant to the Income Tax Act. 

Another interesting tax implication is that if you received a large future income loss award, you may be entitled to a tax gross up award which gives you extra money because of the long-term tax implications of investing your settlement funds for the long-term.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

Failing to Call a "Key" Witness: Adverse Inference

LEGAL PRINCIPLE: An "adverse inference" is when a lawyer,  plaintiff or defence, asks the Court to make a conclusion based on missing evidence or silent evidence on an issue. In other words, typically in an ICBC personal injury case, someone has failed to call a witness or an expert that ought to have been presented.  

The British Columbia Supreme Court delivered judgment this week on February 26, 2014 in the matter of Chabot v. Chaube, 2014 BCSC 300.  Mr. Justice N. Brown discussed the inference the ICBC defence lawyer asked the court to draw when the Plaintiff failed to call a friend who organized a bunch of their recreational activities - the inference being that the friend would probably have testified that the Plaintiff did a bunch of things she said she could not do as a result of her injuries:

[136]     The court heard testimony from some family members and friends, but not from her very good friend, Ms. Sophia Ribchinsky, who happened to be the organizer of various recreational activities the plaintiff participated in, such as volleyball. They have kept in touch since the accident. The defendant, therefore, submits I ought to draw an adverse inference. The defendant pointed the court to Buksh v. Miles, 2008 BCCA 318 at para. 30 [Buksh]:

[30]      The notion of adverse inference is related to the best evidence rule. The observation in Wigmore’s Evidence in Trials at Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company: 1979) vol. II, s. 287, at 202-3, offers valuable guidance:

Furthermore, it seems plain that possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved.

[Emphasis in original.]

[137]     In McIlvenna v. Viebig, 2012 BCSC 218, Sigurdson J. referred to the summary referred to in Canadian Encyclopedic Digest, CED (West. 4th), vol. 26, title 61 at para 71. The editors noted that more contemporary liberal disclosure rules have given parties equal opportunities to call witnesses who might assist their litigation position. The existence of disclosure rule changes have encouraged judges to move away from the idea that they ought to draw an adverse inference against a party who had failed to call a witness who might know relevant facts. At s. 200, the CED editors noted that the drawing of an adverse inference is discretionary unless all the circumstances warrant it. The editors summarized:

… In particular, the judge should consider whether: there is a legitimate explanation for failing to call the witness; the witness is within the exclusive control of the party or is equally available to both parties; and the witness has key evidence to provide or is the best person to provide the evidence in question. In a case before a jury, the trial judge should charge the jury that it is appropriate to infer that a failure to call material evidence uniquely available to a party was an indication that such evidence would not have been favourable to that party, but that jurors are not obliged to draw such an inference.

[Emphasis removed.]

[138]     At para. 32 of Buksh, Saunders J.A. commented that the tactic of asking for an adverse inference was being much overused in today’s legal environment, and that the inference, “requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury”.

[139]     In Buksh, the court was dealing with a medical witness who provided clinical records. The question was whether the plaintiff ought to have called them. At para. 35, the court mentions these factors: the evidence before the court; proffered explanations for not calling the witness; and the nature of the evidence they could give.

[140]     I do not think it makes much difference whether the plaintiff’s counsel knew the other side intended to raise the issue. The defendant examined the plaintiff for discovery. The witness’s identity was not a mystery. The defendant could have sought an interview, but this alone does not negate the drawing of an adverse witness.

[141]     Because the witness was close to the plaintiff and had organized recreational activities the plaintiff participated in, conceivably she could give relevant evidence on the nature and extent of the plaintiff’s activities, how often she participated in them, and any limitations she might have noticed. The plaintiff does not deny she has participated in some recreational activities, but testified she did so in a more limited fashion than before the accident; and that some she had given up. She also explained that certain shoulder movements hurt. The defendants called a former boyfriend, who testified about recreational activities he had engaged in with the plaintiff after the accident. Investigators retained by the defendant took videos of the plaintiff playing beach volleyball on August 22, 2013 (T. Oct. 31, 2013, p. 63, l. 7). That video consists completely with the plaintiff’s description of the nature and extent of her participation in beach volleyball.

[142]     Plaintiff’s counsel advised he had not foreseen the possibility of the defendant asking the court to draw adverse inferences coming into play and had decided it was not necessary to call the witness.

[143]     While Ms. Ribchinsky likely could have testified regarding the plaintiff’s physical abilities before and after the accident and surgery, I cannot find her evidence necessarily would be superior to other similar evidence. The plaintiff spent much recreational time with her former boyfriend and the defendant extensively cross-examined her on the subject.

[144]     The evidence on this question must be viewed as a whole not piecemeal.

[145]     I decline to draw an adverse inference regarding the nature and extent of the plaintiff’s physical limitations in recreational activities so as to conclude Ms. Ribchinsky’s evidence likely would have been detrimental to the plaintiff’s case.

LESSON: Strategically, there are reasons for calling each witness.  If there is a possible adverse inference that can be drawn for failing to call a witness, you should weigh the risks against the benefits and decide accordingly.   

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

ICBC Tip of the Month (February 2014): Trial Lawyer

PERMINDER S. TUNG:  EXPERIENCED ICBC TRIAL LAWYER

ICBC Tip-of-the-Month (February 2014): when thinking of hiring a lawyer or consulting with various lawyers about your claim, make sure you research the lawyer and ask whether he or she has run successful trials against ICBC. 

Why?  There are a lot of reasons, some of which are the following:

1) ICBC fears lawyers with trial experience because they are good at securing high awards for damages;

2) ICBC tracks lawyers and assesses the defence of your claim based on the lawyer's reputation and trial experience;  

3) Only a true trial lawyer can assess the value of your claim because they know with reasonable estimation what a judge would do with your case;

4) The opposite of a true ICBC trial lawyer is a "settler", or someone with the reputation for settling too early for too little money; and

5) A trial lawyer really enjoy his job and the challenge of presenting evidence in front of a judge or jury.

Perminder S. Tung is a true trial lawyer and dedicated personal injury litigator. For a free consultation about your ICBC injury case, contact him at 604-888-5811 or ptung@lklaw.ca.  Providing high level personal injury legal services in Surrey, Langley, Burnaby, New Westminster, Vancouver, Richmond, Abbotsford, and the Lower-mainland generally.  

How to lose 30% of your $ money $ on your ICBC Claim

 
PRINCIPLE:  When you are injured in a car accident and damages flow from the incident (wage loss and pain/suffering), it is well established law that you have a positive obligation to mitigate (reduce) those damages by doing your best to get better, work hard towards recovery and most importantly follow the reasonable advice of doctors and specialists.

LAW: On January 9, 2014 The Honorable Mr. Justice Kelleher delivered reasons for judgement in a motor vehicle accident case: Maltese v. Pratap. The Court reduced the approximately $400,000 award by 30% to account for the Plaintiff's unwillingness to follow medical advice that he should attend an exercise program with a kinesiologist or personal trainer.   This is a big lesson regarding your ICBC case and an easy way to reduce the $ value $ of your claim. 

[51]  The plaintiff is under a duty to mitigate, that is, to take reasonable steps to minimize his loss.  The defendant bears the onus of proving the plaintiff could have avoided all or a portion of his loss. 

[52]  When doctors recommend treatment and the advice is not followed, the defendant must prove: first, that the plaintiff acted unreasonably in not taking the treatment, and second, the extent to which the plaintiff’s damages would have been reduced.  See: Chiu v. Chiu, 2002 BCCA 618 at para. 57; Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 166-72. 

[53]  In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56, the Court of Appeal recently wrote:

"I would describe the mitigation test as a subjective/objective test.  That is, whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment.  The second aspect of the test is “the extent, if any, to which the plaintiff’s damages would have been reduced” by that treatment." [Emphasis in original.]

[54]  On the facts of that case, the Court of Appeal found the trial judge erred in holding there had been a failure to mitigate:

"  … The physicians testified only that [cortisone] was a reasonable treatment to try, and it might afford some relief.  In my view, such an opinion does not meet the threshold for reducing an award as described in Chiu."

[55]         The facts of this case represent a textbook example of a failure to mitigate.  There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer.  Their recommendations are remarkably similar.  Mr. Maltese has chosen to ignore them.

[56]         In Latuszek v. Bel-Air Taxi (1992) Limited, 2009 BCSC 798, the plaintiff’s award for non-pecuniary damages was reduced by 40% for a failure to mitigate. Madam Justice Stromberg-Stein (as she then was) found that the plaintiff did not comply with the recommendations for an exercise regime:

"There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended. … Dr. Jaworski recommended exercises in the pool and gym and brisk walking.  Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking. … Mr. Latuszek does very little regular exercise of any kind, except once or twice a week.  He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist. … [H]e understands that … exercise, may improve, if not cure, his symptoms.  The plaintiff has not prioritized his recovery."

[57]         The plaintiff in that case suffered from more serious physical and psychological issues than Mr. Maltese’s diagnoses.

[58]         In Abdalle v. British Columbia (Public Safety and Solicitor General), 2012 BCSC 128, the plaintiff was recommended an exercise program, among other things. At paras. 61-85, Madam Justice Ross found that the failure to become more active was unreasonable and that it would likely have reduced the effect of the plaintiff’s injuries. She reduced non-pecuniary damages by a factor of 25%.

[59]         I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.

[60]         Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. 

[61]         On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate.

LESSON: Attending "active rehabilitation" or an "active exercise program" is an important part of recovery following a car accident.  Often, this is best delivered through an experienced professional such as kinesiologist or personal trainer. 

A lawyer can help you get coverage through your part 7 accident benefits for an active rehab program with a kinesiologist to help you through your road to recovery.  Also, we can help direct you to the best trainers in your area (Vancouver, Burnaby, Richmond, Surrey, Langley, New Westminster, and the Tri-City area).


Do you have questions about your ICBC injury claim?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC)

ICBC Tip of the Month (January 2014)

Social Media websites like Facebook, Instagram, YouTube, Twitter,  and Blogger are an excellent source for ICBC to investigate injury claimants. When you post something on social media the world can look at what you have posted. For example when you mention that you went on a trip, hiked a mountain, went on a skiing trip, enjoyed socializing with your friends, etc… ICBC will likely find this information and use it against you. 

How?   Imagine if ICBC downloads some photographs or posts of you doing an activity and then uses it in Court against you to say "you are not injured!"  Imagine if ICBC starts interviewing people that went to an event which you described on a website? Imagine if you talk about getting drunk with some friends? Imagine if you post something that may not be socially acceptable?

ICBC or their investigator could access your personal information by inventing a “friend” who then contacts you for access to your information. ICBC then thoroughly searches the sites, looking for photographs, notes, blogs, etc. Their purpose is to find photographs of a claimant in situations that could be damaging to the case in front of a judge or jury. 

Also, ICBC has been known to bring court applications to compel production of social media accounts  if they cannot access the information through the back door. Therefore, even if you maintain a limited number of friends and a tight privacy setting ICBC can get copies of your postings.

RULE OF THUMB: assume someone from ICBC or the defense team will looking into your social media presence. If it could be harmful to your case, don’t post it.


Do you have questions about your ICBC injury claim?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC)

ICBC Low Velocity Impact Policy (LVI Policy)

ICBC may tell you that your accident was a "low velocity impact" or an "LVI" and "accordingly your injuries are non-compensable".  In other words, "no crash, no cash".  Some view this ICBC policy as a way for insurance companies to reduce claims because the uninformed public does not understand that there is no legal principle behind this defence.  ICBC is simply seeking to reject your injury claim solely on the severity of vehicle damage alone.  The forces of impact, however, are only a single factor a judge or jury can look at when weighing all of the evidence in your case.  

In Gonzales v. Voskakis, the plaintiff was involved in a rear-end collision   Despite the relatively minor forces of impact the plaintiff sustained soft tissue injury to her neck and back.  The plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations. The Court dealt with different potential causes for the shoulder injury and ultimately rejected the claim as it related to the collision.  In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons in addressing this evidence:

[206] I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.

[207] Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33.

[208] In Miller v. Darwel, 2005 BCSC 759, the court stated:

[9] On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has not application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

[10] As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.

[11] I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.

[209] More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.”

[210] I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.


Do you have questions about your ICBC injury claim?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC)