Plaintiff Awarded $35,000 for Persistent Shoulder Injury in ICBC Case

In the recently published case of Burton v. ICBC, 2011 BCSC 653 a woman injured in a hit-and-run accident was awarded $35,0000 in general damages for a moderate soft tissue injury to her left shoulder that continued to cause her “significant discomfort” two and a half years after the accident.

ICBC tried to deny the plaintiff compensation, arguing that she had failed to take reasonable steps to find the driver who hit her. Under s.24 of the Insurance (Vehicle) Act, an insured is expected to take all reasonable steps to identify the vehicle and driver of the vehicle involved in a hit-and-run accident. In many cases this can include (among other things) posting signs at the scene of the accident and placing an ad in the newspaper. However, whether the steps taken are deemed reasonable by the Court depend on the circumstances of the case.

In this case, the plaintiff’s vehicle was rear ended in a location that was hidden from witnesses (to her left was the back of a restaurant and to her left there was a treed area with no buildings). The plaintiff was not able to see the license plate of the car that had hit her before it drove off. She testified that, before driving off, the other driver had approached her in a menacing manner, so she was unable to get his personal information. The plaintiff reported the accident to the police, and her friends and family mounted a search in the Duncan area for the other vehicle. Sometime after the accident, the plaintiff’s husband believed that he might have found the vehicle parked on private property, and the location of the vehicle was reported to the police.
In the circumstances of the case, the Court found that the plaintiff did not have an obligation to post signs or advertise for witnesses, as those steps had no “realistic prospect of eliciting information that would identify the other vehicle or the driver“. In addition, the Court found that there was no obligation on the plaintiff to take “investigative steps” to confirm whether the vehicle her husband thought may have been the car involved in the hit-and-run accident was indeed the vehicle that had hit the plaintiff’s vehicle, due to the fact that the car was on private property.

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